FOWLER & FOWLER

[2014] FCCA 2974

FEDERAL CIRCUIT COURT OF AUSTRALIA

FOWLER & FOWLER [2014] FCCA 2974

Catchwords:
FAMILY LAW – Children – parenting – school – children’s school – where father removed children from school and re-enrolled them in another school – best interests of the children – need for stability.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC

Cases cited:
Re G:Children’s Schooling [2000] FamCA 462; (2002) 26 Fam LR 143; FLC 93-025

Applicant: MR FOWLER

First Respondent: MS FOWLER

File Number: SYC 6064 of 2014

Judgment of: Judge Scarlett

Hearing date: 18 December 2014

Date of Last Submission: 18 December 2014

Delivered at: Sydney

Delivered on: 18 December 2014

REPRESENTATION

Counsel for the Applicant: Mr Harper

Solicitors for the Applicant: WMD Law

Counsel for the Respondent: Ms Boyle

Solicitors for the Respondent: MCW Lawyers

Independent Children’s Lawyer: Ms Robinson

Solicitors for the Independent Children’s Lawyer: Legal Aid NSW

ORDERS

1. The parties are to do all acts and things and sign all documents necessary to enrol the children, X, born (omitted) 2005, and Y, born (omitted) 2008, at (omitted) Primary School at (omitted) to commence the first school term in 2015.

IT IS NOTED that publication of this judgment under the pseudonym Fowler & Fowler is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYC 6064 of 2014

MR FOWLER

Applicant

And

MS FOWLER

Respondent

REASONS FOR JUDGMENT

1. The parties have agreed on an extensive range of issues, which is to their credit and, I suggest, to the credit of their legal advisors.  The one issue that remains unresolved is the children’s school.

2. After the rather serious events of 17 October, the children were, not unnaturally, distressed.  They remained out of (omitted) School, where they had been attending, although they underwent counselling.  The father, in his affidavit, refers to the views that the children – first, that they did not want to go back to that school and did not want to go back to (omitted) because everyone would know, and secondly, that once they had been enrolled at (omitted) School of (omitted) Primary School, they were doing well there.  They liked the new school.  Y referred to a number of new friends and said, “Everyone loves me here” or words to that effect, which is obviously a tribute to the school.

3. However, the mother and the Independent Children's Lawyer believe that it is more important for the best interests of the children that they return to (omitted) Primary School, where they have been until five weeks ago.

4. One of the reasons, and an important reason, is because this school provides stability for the children to go to the school where they have been going up until quite recently, and stability is necessary, especially for these children, whose lives have been significantly disrupted by the recent events.  It has been put to me by Counsel for the mother and the Independent Children's Lawyer that the school will give them some form of stability, so at least that environment is the same.

5. I think there is much to be said for that.  Certainly, the children may have said to the father that they did not want to go back to (omitted) School because everyone there would know what had happened, but these things fade into the past.  The children will not be going back to school until the commencement of term 1 at the end of January next year, which will be after Australia Day.  Certainly, there is about a day of the school term left, and obviously, they are not going to go back to school tomorrow, nor would there be any point in it.  So the time for children at the school to forget about those incidents is most important.

6. If the father is eventually successful, it has been put that the children might have to change school again. I think that is a long way away, certainly with the delays that this Court has at the moment due to the plethora of work available to it and the comparative dearth of judges. The likelihood of a final hearing in less than a year’s time is, unfortunately, remote.

7. The best interests of the children remain the paramount consideration, although this is not the only consideration (Re G: Children’s Schooling[1]).  In this case, though, I am satisfied that the best interests of the children indicate that they should be re-enrolled at the (omitted) Primary School to start term 1. 

   [1] [2000] FamCA 462; (2002) 26 Fam LR 143; FLC 93-025

8. I will order accordingly.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:

Date:  19 December 2014