GALLEGO & MACKWETH

[2013] FamCA 1057

FAMILY COURT OF AUSTRALIA

GALLEGO & MACKWETH [2013] FamCA 1057

FAMILY LAW – INTERIM PARENTING – Where the parties cannot agree on the school the children of the parties should attend – Where the eldest child of the parties has already attended a particular school for some time – Where the father no longer wants that child to continue to attend the school nor have the youngest child commence at the same school due to an incident taking place at the school involving the father – Where the father proposed a number of schools which were not near the mother’s residence and with whom the children currently reside – Where the court declined to change the eldest child’s school and made orders for the youngest child to be enrolled at the same school for the 2014 school year.

FAMILY LAW – COSTS – Where the mother sought a costs order against the father – Where the court was not satisfied that that the nature of the issues was such that a costs order should follow.

Family Law Act 1975 (Cth)

APPLICANT: Ms Gallego

RESPONDENT: Mr Mackweth

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Sydney Central

FILE NUMBER: SYC 3015 of 2012

DATE DELIVERED: 21 November 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 21 November 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Diana Perla & Associates

COUNSEL FOR THE RESPONDENT: Mr Blank

SOLICITOR FOR THE RESPONDENT: Horowitz & Bilinsky

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Camarsh

Orders

1. That within 14 days the husband do all acts and things and sign all documents necessary to enrol the child B (female) born … 2009 (“the child”) at C School for the school year commencing 2014.

2. That in the event that the husband fails to comply with order 1, the wife be authorised to enrol the child at C School for the school year commencing 2014 without the consent of the husband.

3. That the application for the orders sought in the proposed minute of the husband and for the application of a supervisor is dismissed.

4. That leave is granted to the independent children’s lawyer to issue such subpoenas as she sees fit.

5. That each party will bear their own costs of the application.

6. That pursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gallego & Mackweth has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3015 of 2012

Ms Gallego

Applicant

And

Mr Mackweth

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. By an Amended Response to an Application in a Case filed on 15 August 2013, the mother in these proceedings seeks orders that would enable the youngest child of the parties, B to commence school at C School (“C”) next year.

3. Due to events that occurred on 12 November 2013, the father now seeks orders by way of a proposed minute of order handed up this morning that the two children of the relationship attend an entirely different school from the one proposed by the mother.  The father also, by way of an oral application, seeks the appointment of an alternate person to supervise the time he spends with the children. 

4. Although those applications have not been made in accordance with the Rules, there is no reason why they should not be heard and dealt with today and neither has the lawyer for the mother or the independent children’s lawyer (“ICL”) sought that they be dealt with otherwise.

5. There are two children of the parties’ marriage.  The parties were married in 2005 and separated in February 2011.  D was born in 2006.  He is in year 1 at C School at Suburb E.  He attended kindergarten at that school last year.  B was born in 2009 and it is proposed by the mother that she attend kindergarten at C School next year. 

6. When the matter came before me by way of a first day less adversarial trial on 24 October 2013, the parties were in dispute as to whether or not the child should commence school next year or the year after and it was that matter which was fixed for hearing today.

7. As can already be seen, things have changed substantially since then.  On 18 July 2012, consent orders were entered into whereby the children were to live with the mother and spend time with the father in week 1 each Tuesday and Wednesday from after school or pre-school until 6.30 pm or after swimming lessons, with the father to collect the children from school or pre-school and deliver the children to the mother’s place of residence at the conclusion of time; on Saturday from 9.30 am to 6.30 pm with the father to collect the children from the mother’s residence at the commencement of time and the mother to collect the children at the conclusion of time from the paternal grandfather’s residence in F Town. 

8. Then in week 2, commencing 24 July 2012,the children would spend each Tuesday and Wednesday with the father from after school or pre-school until 6.30 pm or after swimming lessons, with the father to collect from school or pre-school and deliver the children to the mother’s place of residence;  and Friday from 9.30 am to 6.30 pm for the child and from after school until 6.30 pm for D, with the father to collect the child from the mother’s place of residence and D from school and deliver the children to the mother’s place of residence at the conclusion.  At all times, the time that the children were to spend with the mother was to be supervised by his grandmother, Ms G Mackweth.  Those orders were made without admission by the father.

9. It appeared from the first day hearing before me that, at least as far as parenting issues were concerned, one of the most significant issues was whether or not the time that the children spend with the father should be supervised or not.  The issue of alternative schools for the children was first raised by the father in a letter from his solicitors dated 1 August 2013.  It said, in part:

   Our client wants the best for both of his children.  However, he feels in the light of what has occurred and from particulars in staff and parents involved in [C School] have been informed of the requirement of supervision, which your client well knows has never been necessary.  [Mr Mackweth] now feels embarrassed and awkward about being involved at all at [C School].  He also accepts that there is some advantage in having both children at the same school.

10. The embarrassment was caused, according to the father, by the mother public posting copies of interim parenting orders in public places near the school.

11. The father then proposed a number of schools, all of which were in the H area.  The significance of that is that the father resides in the H area and the mother and the children reside at Suburb E.  Most of the schools proposed by the father were private schools.  On 8 August 2013, the lawyers for the mother wrote to the father asking if inquiries had been made regarding enrolments, prospective fees and eligibility and who it was who would be proposed to pay those fees.  On 6 November 2013, the lawyers for the father advised the mother’s lawyers as follows:

    Our client no longer intends proceeding to oppose the child starting school next year.  Our client agrees to the child’s enrolment at [C School] next year but subject to the condition that the final choice of schooling will need to be the subject of orders and our client wants to be involved in the process.

12. Thus the position seems to have developed as at 6 November where it was agreed between the parties that the child would start school next year and that both children would attend C School.  It appears that the father had, in the interests of the children, been able to overcome his embarrassment noted in the earlier letter. 

13. On 12 November 2013, an incident occurred at the kindergarten which the child was attending.  The evidence in relation to what occurred is scant.  What is clear, however, is that an incident occurred between the parents as a result of which the police were called.  They later arrested the father intercepting him on the way to collect D at C School, took him to Suburb I Police Station where he was retained for some time and released without charge.  The kindergarten went into lockdown mode. 

14. The mother’s version of events needs a little background.  Ms G Mackweth is the supervisor of the time that the father spends with the children.  Accordingly, she would, in the ordinary course, be with him when he collected the children from school or pre-school.  She had injured herself and was not able to supervise the time from about 5 November 2013.  The circumstances of her becoming unable to supervise the time the children spent with the father is subject to a dispute.  It is not relevant to attempt to deal with the competing versions at this time. 

15. Thus, on 12 November 2013, Ms G Mackweth was not available to supervise.  According to the mother, the father and his brother and his new partner, Eleanor went to the Suburb E kindergarten to collect the child without notice to the mother.  The mother was present.  She says that the father took the child in his arms, seeking to take her away, and was shouting at her and at the director of the kindergarten.  The child was crying in the father’s arms and was distressed.  The mother says that she did not call the police.

16. The father refers to the incident in his affidavit but does not give a version of what actually constituted the incident.  The father says that the police told him that the mother was the complainant and that they were arresting him for having intimidated her.  He says that he was arrested and searched twice in full public view and in front of parents and scholars of C School, after arriving there.

17. It is not possible and most certainly not at all desirable, on an interim hearing, to decide finally issues of fact.  In any event, in these proceedings, the evidence is so scant as to make it impossible.  What is undoubtedly clear is that there was unpleasant incident, the result of which the father was arrested. 

18. The father says that he has found that experience humiliating and embarrassing.  Now, that may readily be accepted.  He further says that D has informed him that he too feels embarrassed about this incident.  The father says that D is reluctant to return to this school because he has been teased and bullied about it.  The father says on 15 November D said to him:

    I’m scared of going back to [C School].  A police car might come and take me away at any time.

19. He also says he ‘wants to bash the children up’.  The father says that this incident has aggravated the embarrassment and concern he feels about C School to the extent that he feels physically ill about going near the school.  He deposes to difficulties he has with the headmaster, Mr J.  He said that is a continuation of events at the school orchestrated by the mother.  He gives, as the other example, his assertions that in 2013 the mother placed in public places, including a park, copies of the orders of the court requiring the time the father was to spend with the children to be supervised.  The father said that he was told about this by a grandparent of one of the students of the school who said to him:

    Only poofters and paedophiles need supervision.

20. The mother denies that she did so.  Again, it is not possible to come to a decided view as to which version is correct.  Thus the position as it presently stands is that according to the father he is embarrassed and humiliated about attending school and D himself is now in fear, it was submitted, and embarrassed about returning to the school.  In those circumstances the father submits that the only way in which the father can have a meaningful relationship with the children is for the children to move schools.

21. The father also says that it would be in the interests of D to attend a new school where he is not likely to be bullied or teased about his father being arrested at school.  Again, it is understandable that D would likely feel embarrassed about his parents causing such an incident that would require one of them to be arrested.  The father proposes a number of schools.  With the exception of one they are different to the schools he proposed in August of this year.

22. The first is a Rudolf Steiner School.  He says it is some two kilometres away from his home and 25 kilometres from Suburb E.  The father sets out some detailed information about the Rudolf Steiner School. 

23. The next school proposed is K School, which was said to him to be 4.8 kilometres from Suburb E.  The mother submits that that is in a direct line and that to travel there by car is more of the order of some 10 kilometres away.  The next school is L School, which again is located in the H area, so it is approximately two kilometres from the home of the father and some 25 kilometres from the mother’s residence.

24. M School is the last school proposed.  It is some 15 kilometres from Suburb E and about 10 kilometres from the H area, being located about a five minute walk from Suburb N Station. 

25. With the exception of K School, each of those schools could accommodate both children next year.  K School can accommodate D from the commencement of next year, but not accommodate the child until 2015.

26. The father does not make any proposal as to what school, if any, the child should go to in the event K School is accepted as appropriate. 

27. It was put that it was, in effect, merely a coincidence that most of the schools proposed either in August or in November were significantly closer to the father’s home and further from the mother’s residence.  It was said they were selected on academic merit.  These schools are private schools.

28. The fees for some of them are significant in the order of $10,000 to $12,000 per year.  The mother is presently paying the school fees at C School.  The father gave no evidence to the effect that he would pay the school fees or could pay those school fees.  When the matter was raised in submissions instructions were obtained to the effect that he would pay those fees, but that does not constitute evidence that he has the ability to do so.

29. There are thus two issues: whether or not children should be moved and if so to which school they should be moved.  The mother and the ICL opposed any movement.  In doing so their submissions dealt with both aspects at the same time and that was a convenient way to approach it. 

30. D appears to have some educational difficulties but from the school reports seems to be enjoying his time at C School and developing well.

31. The child seems keen to go to school. The kindergarten at which she presently attends supports that view saying she is ready for school.  Indeed, her mother has already bought her school uniform and she has attended orientation day at C School.  There is in evidence a photo of her and her brother on orientation day, both of them obviously looking excited and happy at the prospect.

32. The proposed schools with the exception of K School are a considerable distance away from the mother’s residence.  The children have to spend significant time each day in peak hour traffic to attend those schools.  For the child 2014 is her first year in school and it is likely to be tiring for her.  I do not think that it is in her interest to have to spend a significant amount of time travelling each day to and from school.

33. As was correctly submitted by the ICL the conflict between the parties is escalating.  This was specifically noted by the family consultant in the Child Responsive Program Memorandum of 13 March 2013.  That report also noted that the children had positive experiences with the father and enjoy a meaningful relationship with him, but that there were concerns about the conflict between the parents starting to weaken the relationship of the children with their parents.

34. The ICL pointed out difficulty posed by the  orders proposed by the father which involve him collecting the children from the mother’s residence each morning, taking them to school and picking them up after school and returning them each day.  Thus, not only is there significant travel involved, there will be two occasions for contact between the parents every day.

35. In the light of the incident of 12 November 2013, which demonstrates the fact that there was conflict between the parents – though precisely of what kind and nature cannot be determined – it seems to confirm that it would not be desirable for the parents to be brought into contact with each other as frequently as that.  The arrangements do not seem to be particularly practicable or in the interests of the children.

36. The other factor that needs to be taken into account against any such change is that D is well-established with school and presumably has friends there and seems to be doing well.  What then is to be taken into account on the other side of the ledger?  The father says that his embarrassment and humiliation will make it more difficult for him to have a meaningful relationship with the child.

37. It is easy to accept that he will find it more difficult to deal with the teachers at the school given the circumstances of his arrest.  It is less clear to me how that will impact on his relationship to D.  Whilst picking up and collecting the children from school may be embarrassing, it is something that should be over relatively briefly.  Again attendance at school events may be made more embarrassing and difficult for the father but again it does not seem to me how these will adversely affect D.  If it is said that the mere fact of the conflict between the parties, including the incident on 12 November, is likely adversely to affect D and the child because of the public display of conflict between the parents carried out in front of the children, then that is undoubtedly correct.

38. However, the evidence does not enable me to say – and it may not enable anyone to say in the future – who was responsible for that.  That, of itself, may make the relationship between the parents and D more difficult and will need to be managed appropriately.  I do not see that changing schools will assist D in that respect.  Thus whilst the incident itself might well have an adverse effect on D, it is by no means clear that changing schools will alleviate that problem.

39. The second aspect on which the father relies is that D himself feels embarrassed about being at school and that he is teased and bullied.  The father said that D has said:

    Three of the children in year 3 have been teasing me ever since the police got home and took me away and they have said to me “You’ve got problems, [D], nay nanny nay nay”.

40. The father said he wanted to bash those kids up.  The father has mixed – if that is the correct word – a USB stick of a video of him speaking to D recorded on 18 November 2013 recording these things.  The tender of the USB stick was ultimately not pursued.  I will say nothing about the appropriateness or otherwise of a parent videoing, in effect, an interview between him and the child for use in court proceedings.

41. Accepting that D has some difficulties and embarrassment at school the question is what is the best way to deal with that.  On balance the better view is that he remain at the school where he is.  He will have to deal with that embarrassment and teasing.  If he goes to a new school he is going to have to make new friends, adjust to a new educational school and adjust to a significantly new routine in life.  The advantages to him of a new school are thus outweighed by the disadvantages.  This is particularly so when the schools which are in realistic consideration for the children for next year are a considerable distance away from the mother’s house.

1. I say ‘the schools which are a realistic consideration’ because it seems to me on the whole of the evidence that it is important that the child should start school next year, that the child and D should go to the same schools. As K School does not have a place for the child next year it can immediately be ruled out of the equation.  It is to be recalled that until teasing which began after the incident on 12 November, although there had been some earlier reference to teasing at C School by the father, the father was quite happy for D to remain at C School.  In other words, taking all these things into account, I am satisfied that it is in the best interests of D that he remain at C School and for the child to be enrolled to commence at school next year and orders to that effect will be made shortly.

2. The other issue before me is the issue of whether or not there should be a further alternate to the supervisor appointed to supervise the time the father spends with the children.  Ms G Mackweth has not been available since 5 November 2013 and it is not known when she will be available.  The parties have agreed that Ms O be a supervisor.  Ms O has deposed to being available, at least until the matter next comes before the court, to supervise at all required times.  Of course it is possible she may be not available for reasons that are not presently envisaged and it seems sensible that there be an alternative to her available, if necessary.  Originally the father proposed and now proposes his aunt.  I am informed from the bar table that she was a person with whom the parties had earlier agreed could be a potential supervisor.  The difficulty, however, is that in the absence of agreement a determination would need to be made by the court and there is no evidence from the aunt as to whether she is prepared to supervise and whether or not she is aware of her obligations as a supervisor.  Accordingly, in the absence of an agreement it is not possible to vary the orders to cater for her to be the supervisor.

The mother’s application for costs

1. The mother makes an application for costs on the basis that the father was entirely unsuccessful with this application and because of the manner in which the proceedings were run and, in particular, the late flurry of affidavits.  It is true that the father was entirely unsuccessful.  The proceedings were originally fixed today for a determination as to whether the child would attend school next year or this year and, as it appears from the Reasons and Judgment, transmogrified into an entirely different application.  That application was precipitated by the events that occurred on 12 November 2013. 

2. It is not entirely surprising that there was a flurry of affidavits since that date.  The circumstances of 12 November remain largely unknown and whilst there is some force in the view that the proposals for certain schools were not particularly realistic, I am not satisfied that the nature of the issues was such that a costs order should follow.  In particular, I take into account that the significant precipitating event is something which remains, at least to the court, somewhat of a mystery. 

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 21 November 2013.

Legal Associate:

Date:  15 January 2014