Galpin & Galpin

[2021] FCCA 84

FEDERAL CIRCUIT COURT OF AUSTRALIA

Galpin & Galpin [2021] FCCA 84

File number(s):	BRC 15515 of 2020
Judgment of:	JUDGE TONKIN
Date of judgment:	22 January 2021
Catchwords:	FAMILY LAW – children – parenting – schooling – No issue of principle.
Legislation:	Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 64B(1), 64B(2)(i), 65D
Number of paragraphs:	114
Date of last submission/s:	20 January 2021
Date of hearing:	20 January 2021
Place:	Brisbane
Counsel for the Applicant:	Ms Bertone
Solicitor for the Applicant:	Mitchells Solicitors
Counsel for the Respondent:	Mr Selfridge
Solicitor for the Respondent:	Quinn Family Law

ORDERS

BRC 15515 of 2020

BETWEEN:

MS GALPIN

Applicant

AND:

MR GALPIN

Respondent

ORDER MADE BY:	JUDGE TONKIN
DATE OF ORDER:	22 JANUARY 2021

THE COURT ORDERS THAT:

1.The child Z born in 2008 commence attending high school at J School on 27 January 2021.

2.On or before 25 January 2021 the parties shall do all things and sign all necessary documents to complete Z’s enrolment at J School.

3.Unless otherwise agreed between the parties the current shared care arrangement in place for the children continue until further order.

4.The parties do all things necessary and sign all documents to enrol X and Y in K School.

5.The parties are required to attend mediation prior to the adjourned date to discuss the outstanding parenting issues.

6.The parties shall arrange for all three children to attend the Children First Program.

7.The issue with respect to a change in the children’s living arrangements and future schooling is adjourned for interim hearing to 5 March 2021.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE TONKIN

1. On 16 October 2020 the applicant (mother) commenced proceedings for parenting orders for equal shared parental responsibility save for the issue of education for which she sought to make the decisions for the children about their education, that the children to live with the mother, orders for the children to spend time with the father and an order that the three children of the marriage be enrolled in K School. At the time she commenced proceedings the children were attending H School in Suburb M. Z was due to transition from primary school to high school commencing 27 January 2021.

2. On 7 December 2020 the parties entered into interim consent orders for the preparation of a family report. Orders for the children to spend time during the upcoming school holidays were made. Order 3 (a) (ix) of the orders provides that the 5:5:2:2 arrangement for the children continue until the new school term. Changeover was to occur at Suburb S Shopping Centre. An order was made that the applicant promote Z’s relationship with her father and use her best endeavours to encourage Z to spend time with her father.

3. The matter was adjourned to 20 January 2021 for interim hearing of the schooling issue only. Mr F released his report on 12 January 2021. The applicant sought a change to the children’s equal time arrangement seeking an order that the children live primarily with her.

4. When the matter came before me on 20 January 2021 the children’s future interim living arrangements were in dispute. Those arrangements had the potential to impact on where the children would attend school. 

5. The parties agreed to adjourn the issue of a change in the children’s interim living arrangements and schooling for X and Y for interim hearing on 4 March 2021. The only urgent issue for determination before me was where Z would transition to high school for Term 1, 2021. That matter was heard on 20 January 2021 and judgment reserved.

   DOCUMENTS RELIED ON

6. The applicant relied on her initiating application filed 16 October 2020, her affidavit filed 16 October 2020, Mr F’s Family Report dated 12 January 2021 and written submissions dated 20 January 2021. The respondent relied on his Response filed 16 October 2020, his affidavit of the same date, the Family Report and written submissions dated 20 January 2021. 

   COMPETING PROPOSALS

7. The applicant seeks an order for Z to attend K School in Town L commencing 27 January 2021. The respondent seeks an order that Z commence J School in Term 1, 2021. X and Y will continue to attend H School in Suburb M until further order.

   ISSUE

8. The single issue for determination is whether the child Z who is to commence high school in Year 7 will transition to J School or attend K School.  

   BACKGROUND

9. The applicant is 38 born in 1982 and the respondent is 44 born in 1976. The parties met in 2001 in Sydney and commenced living together in about 2005 when they married. They settled in Brisbane. The parties separated on a final basis in August 2019. There are three children of the marriage Z born in 2008, X born in 2010 and Y born in 2013.

10. The applicant has re-partnered and as of about 8 weeks ago her partner Ms B lives in her home at Suburb C. The respondent has not re - partnered.

11. Currently X and Y spend equal time with their parents in a 5:5:2:2 arrangement. Z has refused to spend time with the respondent for a few months but previously spent time with him at the same time as the boys. Z’s time with the respondent is currently short and infrequent.

12. The applicant lives in a rented property at Suburb C and intends to purchase a property in that area. Her parents live in that area. The respondent lives in the former matrimonial home at Suburb D. The distance between the homes is approximately 20 minutes by motor vehicle.

    LEGAL PRINCIPLES

13. Part VII of the Act at section 60B sets out the objects and principles the Court is required to consider when making a parenting order. Section 60CA of the Act provides “In deciding whether to make a particular parenting order in relation to a child a court must regard the best interests of the child as the paramount consideration.”

14. Section 64B (1) of the Family Law Act1975 (Cth) provides the definition of the term “parenting order” as follows:

    “64B (1) A parenting order is:

    (A)  an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or

    (B)  an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).

    …….. 

15. Under subsection 64B (2) (i) of the Act a parenting order may deal (relevantly) with

    “(i)  any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.” A child’s education (both current and future) is a long term issue being “an issue about the care, welfare and development of the child of a long-term nature.”

16. The matters the Court is required to consider (in so far as they are relevant) are set out in section 60CC of the Act. Those matters include primary considerations (s60CC (2)) and additional considerations (s60CC (3)).

17. Section 65D of the Act gives the Court the power to make such parenting orders as it thinks proper.

18. The Court is required to consider the relevant statutory provisions in determining any application for parenting orders. There are two primary considerations under section 60CC (2) of the Act namely:

    (a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

    (b)The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.”

19. It is common ground that there are no issues between the parties that relate to family violence, substance abuse, mental health vulnerabilities or past involvement in criminal conduct.

20. Each of the parents support all three children having a meaningful relationship with both parents.

    EVIDENCE

21. The applicant stopped work when Z was born in 2008. She said she remained out of the workforce until 2018 other than for a short period of 6 months in 2013. The respondent agreed that the applicant stopped work when Z was born in 2008 “then X in 2010.” He said she returned to work for six months and then stopped when Y was born in 2013.

22. The applicant deposed that she had been the children’s primary carer throughout the relationship. She completed her qualifications and commenced working at Employer E in 2018. Thereafter she said she remained the children’s primary carer with the parties sharing the drop off and pick up of the children and making dinner. The respondent said from 2010 to 2017 the applicant undertook studies towards a degree. He took leave from work when the applicant had a heavy workload. He said those arrangements continued until the applicant found full time work in 2018. I accept that both parents have been significantly involved with the care of the children.

23. Regarding the breakdown of the relationship the parties agree they grew apart in late 2017 or early 2018 and commenced sleeping in separate beds. They separated in August 2019 and the applicant moved out of the former matrimonial home in March 2020.

24. The parties agreed to an equal time arrangement for the children though the applicant argued that this was “imposed upon her.” Both parties agree the children have experienced difficulties adjusting to the parental separation. The children have been attending a psychologist to assist them to cope with the parent’s separation.

25. The applicant complained that Y did not have his own bed in the respondent’s home and the children were not getting enough food in their lunch boxes. She raised a number of other issues however she sought orders that the children spend six nights a fortnight with their father. The applicant deposed that the parents have not established a co-parenting arrangement despite the amount of time the children spend in each parent’s household.

26. Regarding the schooling issue the applicant deposed that J School was not the best choice of school for Z academically or for other reasons. She said as Z is primarily living with her an order for Z to attend K School was preferred as this would assist Z to spend time with friends in the area where she now lives.

27. She said that should Z attend J School she will be required to spend a significant period waiting outside before and after school, unsupervised. The applicant now lives in Suburb C which is a significant distance from J School and from H School.

28. It is common ground that Z attended an interview at J School on 13 October 2020. The applicant said the child told her that she did not want to attend J School.

29. The applicant made enquiries of K School in Town L a high school located in close proximity to her home. She argued that the school is of a “higher educational standard.” She said she attempted to communicate to the respondent about Z attending K School however “he was just not interested.”

30. The respondent is a health care worker and since 2015 has worked as a health care worker at Employer N between 7 a.m. and 3.30 p.m. weekdays.

31. He deposed that he shared a close relationship with Z until July/September 2020 when she stopped spending time with him. He said prior to that time he and the child would train for marathons and practice sports together. He said the child is gifted musically but no longer plays instruments and is sporty and academically minded. He said he has a close relationship with X and Y.

32. Z stopped spending time with the respondent in about 3 September 2020. On 5 September 2020 the respondent deposed that when he attended Z’s sports match she told him she did not want to come home with him, she felt scared and his house was messy. On 17 September 2020 the respondent received an email from the applicant’s solicitor advising him that “Z expressed a desire to remain living with her mother.” The respondent claims that the applicant after this time collected Z from school prior to his attendance there.

33. The respondent set out occasions when Z stayed overnight with him during September 2020. Further email exchanges occurred between the parents regarding Z. On 7 October 2020 the respondent said he asked Z why she did not want to stay with him and why she did not feel safe. He said she told him “you lie to me.” There were a further series of email exchanges between the parties wherein the applicant advised the respondent that the child complained that she felt unsafe and “since our client’s agreement to attend the enrolment meeting at J School your client has made it clear that he will not be abiding by Z’s wishes (picking her up on the day she does not choose to spend time with him) which therefore makes J School an unsafe choice for Z.”

34. The respondent deposed that on 15 October 2020 the applicant and Z were leaving occasional care together when Z told him “I don’t want to go to your house.” He said the mother and child followed him and the boys to the car when the Z said “you’re a liar…..mum is forcing me to see you on Saturday.” He asked the child to give him an example of his lies and she replied “you said a notification comes up on your phone when we get dropped off and picked up at O.” He said “Yes I do.” The applicant said “No you don’t.” The respondent said the applicant walked back to the centre with Z who told the respondent “This is going to stop and I will complain to the coordinator now.”

35. Following this exchange Z stayed overnight with the respondent on 18 October 2020. On that occasion he discovered that she had a mobile phone. He asked the child for the phone and she refused to hand it over. He then raised the topic with the applicant who told him she gave the child the phone “to help her feel safe” in her father’s home.

36. On 20 October 2020 the applicant’s solicitor forwarded to the respondent a letter containing an extract from a text message sent from Z to her mother where the child said “I wish I was dead for once.” Later that day the respondent attempted to collect Z from school when the child told him that her mother would collect her and she refused to leave with him.

37. The respondent set out in his affidavit a text message exchange between Z and the applicant. Z advised her mother “I hate him (her father) and I have only been with him for 50 minutes not even an hour yet.” The mother responded “Yes I know you hate him Z.” There were comments between the child and her mother about the respondent lying and the mother advising the child “just keep recording and making sure u tell him u don’t want to be there.”

38. Both parents allege that the other parent has involved the children inappropriately in the parenting dispute between them. The text message exchange between the applicant and Z would appear to confirm that.

39. On the issue of education the respondent said the parties moved to Suburb D in 2014 to ensure the children had an opportunity to attend co-educational Catholic education. The children have attended the H School since 2014 from Prep. The respondent said it was the parties “mutual intention” that the children would attend J School for secondary school. He said the parties discussed the children’s attendance at J School and he lodged an enrolment form for Z in February 2020.

40. The respondent said in May 2020 the applicant said she wanted to discuss high school for the children. She wanted all three children to transfer to K School at Town L. The respondent did not agree. The applicant attended an interview at J School on 13 October 2020 and Z was subsequently offered a place. On 15 October 2020 the respondent requested the applicant sign the acceptance for Z to attend J School however she did not do so. A place at J School remains open for Z.

41. On 12 November 2020 both parties attended interviews at K School. According to the principal she explained there was no room for the boys to “transition across.” Z was offered a place at the school but the boys were not. The respondent said he did not agree to Z attending K School and the offer was withdrawn by the principal advising him that there were “50 kids on the wait list.”

42. On 13 November 2020 the respondent deposed that the applicant emailed him advising that “if agreement cannot be reached about Z’s high school prior to the end of the term the applicant said she would need to enrol her in Suburb C State High School the catchment area close to her home.” 

43. The respondent deposed that the children should remain attending their current schools and Z attend J School. He said “Z was aware of our intention to send her to J School and after learning of our separation sought confirmation from us that we would still send her there. From August 2019 to August 2020 Z frequently expressed her desire to go to J School noting her friends were going there. She reiterated her interest in attending J School during the interview.” The respondent said Z’s friends are enrolled to attend J School.

    FAMILY REPORT

44. The family consultant interviewed the children and the parties on 8 January 2021 and released his Family Report on 12 January 2021. In his report both parents are recorded as expressing a desire to voluntarily resolve the parenting dispute.

45. The family consultant indicated that “a central feature of the parenting dispute related to the question of what school the children would attend.” He noted however that the parents agreed they both support Catholic education for the children. That statement is inconsistent with the applicant’s email wherein she states Z will need to be enrolled in Suburb C State School if the parents cannot resolve their disagreement about schools.

46. The family consultant observed that to date all three children have attended H School in Suburb M. The feeder school for high school is J School. The respondent wants the boys to remain at H School and then transition to J School. The applicant wants all three children to attend K School, a school that caters for the children from Prep to Year 12 and is located in Town L closer to the applicant’s residence.

47. The family consultant noted there was confusion about the availability of a placement in the respective schools. He said the parents agree that K School is holding a position for Z. The respondent asserts that the school advised him they have no capacity to take X and Y at this time and there will be no places available for them until they commence high school. The applicant said her understanding was if one member of the sib ship attends the school the siblings will be given a preferential consideration in regard to admission. She said once Z commences at K School then her brothers could join her immediately. There is no evidence in support of the latter proposition.

48. The family consultant noted at [25] “the mother and father have a shared view that it would not be logistically viable for Y and X to attend school in Suburb M and for Z to attend school in Town L”. I have taken that into account in determining this matter.

49. The applicant advised the family consultant that she was happy in her employment at Employer E. She moved to Suburb C because she wanted to be closer to her parents. Her current partner Ms B moved into her home 8 weeks prior to the interview. She has a six year old child who lives with them and spends time with her father.

50. The family consultant said the applicant presented as a cooperative and reasonably intelligent woman with an unremarkable developmental history. She impresses as generally capable. He said “I accept she has a genuine commitment to Z, X and Y”.

51. The respondent’s parents live in Suburb P in New South Wales and are retired. He advised the family consultant of a positive, stable background during childhood. He indicated he would like to visit his parents with the children when the opportunity presents.

1. The respondent has a hearing impairment (as does Z and X). His physical health is otherwise generally good. He has a history of training for marathons and though his training has declined he exercises four occasions each week.

2. The family consultant said the respondent presented as a cooperative and reasonably intelligent mane with generally unremarkable developmental history. He has a solid work history and positive work ethic. He impressed as a generally capable man. He and the applicant have only been physically separated for a period of nine months and “would not discount the possibility that he continues to grieve for his family.” He presented as a committed parent with a genuine interest in his children and their welfare.

3. The family consultant indicated that in the context of the joint interview the parents demonstrated appropriate skills of containment and appeared generally respectful towards each other. They met in Sydney in 2001, married in 2005 and moved to Queensland on the basis of greater opportunities for the family.

4. The respondent relies on hearing aids for a congenital hearing disorder. Z and X have hearing deficits and use hearing aids and have accessed specialist services. The parties agree the children have not experienced significant limitations in social and educational development and no impediment in relation to sporting activities.

5. The parties resolved their property dispute by discussion and engaged lawyers to formalise that agreement. Initially they cooperated with parenting arrangements. Their capacity to communicate and cooperate declined once the mother moved into accommodation in Suburb C.

6. Both parents indicated they considered the other parent a capable and committed parent. Both indicated they have adjusted to their separation. They both acknowledged that the current conflict is contraindicated for the children’s long term welfare.

   Z

7. Both parents agreed that Z struggles academically. She excels at sports and wishes to become a professional athlete. Z told the report writer that she finds school work challenging. She said there was little conflict when her parents separated although they sometimes disagreed. She thought they were happier now they were separated and she was also happier. She said she refused to continue spending time at her father’s home and she now only spends short periods with him “when mum forces me to go”. She does not spend time overnight with him.

8. She prefers the care of her mother and said “she lets me have a say in things” while “dad doesn’t listen much”. She felt closer to her mother and was fond of her mother’s partner.

9. She said “I don’t feel safe at dad’s” and said he treats her brothers differently and “lies a lot….he doesn’t let me do what I want”. When asked by the family consultant whether she thought her father would hurt or harm her she said no. With respect to the lies she said her father knew where a particular sports jersey was but denied that. She thought her father did not want a relationship with her and said he “doesn’t listen to what I want”. She said he was unfair to her mother and blamed her for things. She said “I couldn’t live with dad all the time”. If she had a choice she would spend one or two hours a month with him.

10. She was unhappy about not knowing what school she would attend. She said she wanted to attend K School. She accepted that some of her friends were attending J School but said she had friends from school and sports that were attending K School. She had wanted to play sports this year and may not be able to do that if she attends K School but said they had a sports program and she could participate in that.

11. She said she would not have before and after school access at high school and if she attends school in Suburb M her mother will need to leave her there long before her classes commence. She said K School is closer to the mother’s work.

12. When asked what her position would be if her mother wanted her to attend J School she said “I would be good with that…whatever school I go to, I want my brothers there”.

13. The family consultant indicated that he was told by the mother’s current partner that initially when the parents separated Z was very angry with her mother but more recently her anger has been focused on her father. He indicated it was likely that the separation had been de-stabilising for Z and she has experienced anger in response to personal adjustment issues.

    X

14. X does well at school and is a high achiever. He is an enthusiastic sports player. X is to commence Year 5 in 2021. He told the report writer that his dad was the best cook and his mother gave the best hugs. He said his mother and father are not friends and don’t talk they just argue. He said this was upsetting. He thought the current shared arrangement with his parents was okay.

15. He said Z told the mother that his father’s house is dirty and said she feels safer with the mother. He said his father’s home was not dirty and added “I miss Z not being there”. He said he would be happy to attend either school.

    Y

16. Y struggled in Prep school but enjoyed Year 1. According to the mother he is somewhat behind his peers in academic performance. Y said he liked school and had lots of friends there. He thought his mother was the best cook. He said the current arrangement was okay and said “I know mum will get cranky if I spend more time with dad and dad will get cranky if I spend more time with mum so it needs to be even”. He said “Dad’s been rude to Z…he lied about her jersey being lost”. He said “they don’t like each other much”.

17. The mother’s current partner was interviewed.

18. The family consultant indicated that in his view both parents impressed as bright and capable and strongly committed to their children. They both expressed an interest in developing a more communicative, cooperative, collaborative parenting alliance and “may well have the requisite skills to achieve that”. An equal time parenting arrangement could be a viable future option.

19. He said Z has generally refused to spend any significant time with her father. She suggests she does not feel safe and complains he doesn’t listen to what she wants. She was unable to provide any example of any issue that related to her personal safety. He said “it would not generally be appropriate for any parent to consistently permit a 12 year old child to do what she wants.”

20. He said regarding her decision to opt out of the relationship with her father he had concerns that she may have too much power in the family. Children who have a level of autonomy which is disproportionate to their age and developmental stage will often experience associated anxiety. He formed the view that Z is a sensitive child and is likely to have experienced adjustment problems which manifest in anger, sadness and confusion. He said “I would not discount the possibility that the mother may not want to disturb her current relationship with her daughter by exercising authority in opposition to the child.” In his view Z should be spending regularly time with her father including overnights while acknowledging she may wish to spend more time with her mother.

21. Regarding the choice of schools the father felt it was unnecessary to change the children’s school and was concerned this could have a negative social impact for Z and X. His work is close by and he could respond quickly in an emergency. However the children continuing at their current schools places a burden on the mother with respect to travel requirements.

22. The parties do not have a common understanding about whether or not K School would be available to all three children at this time. He accepted the view of both parents that it would be very difficult to have the children attend school in different locations. He said if it is not possible to have all three children to attend K School it is my view X and Y should remain at H School and Z attend J School.

23. If it is determined that all three children can attend K School for 2021 then the casting ballot should sit with the parent with whom the children will spend the majority of their time during school term. Both parents are adequately equipped for the custodial parenting role. He was concerned that Z’s current attitude towards her father may be difficult to overcome.

24. Communication between the parents is currently problematic. Mr F indicated that the children’s views about the current situation are not independently formed. I agree.

25. He said “the greatest risk to the long term welfare of these children lies not in the issue of school selection but is firmly located in the level of tension and absence of problem solving capacity which continues to mark their parents’ relationship”.

26. He said “it is likely all three children have struggled to adjust to the changed circumstances of the family”. Both parents agree that the children should participate in the Children First Program provided by Q Family Services. On balance he formed a view that the parents should have equal shared parental responsibility that order having an “important symbolic value” noting that they had been unable to make a significant parenting decision (i.e. regarding school).

27. He recommended that the children live with their mother during school term and spend time with their father six days a fortnight with Z to spend time with her father for four days each fortnight.

28. If it is possible for Y, X and Z to attend K School for the commencement of 2021 then the children attend that school.

29. If that is not possible then the children Y and X attend H School and Z attend J School.

    SUBMISSIONS

30. The applicant submitted that Z should commence high school at K School and “application can be made for X and Y to attend”. She relied on comments made by Z when interviewed by Mr F where he reported at [102] “the child volunteered she was unhappy about not knowing what school she would be attending this year. She said would like to attend K School. She acknowledged that some of her friends will be attending J School but claims that she also has friends from school and from sports who will be attending K School. She confirmed that she would like to play sports this year and may not have the opportunity to do so if she attends K School but notes that they have a sports program at the school and she could participate in that”.

31. Z noted that if she attends school in Suburb M her mother will have to leave her there long before her classes commence. She believed this would be less the case at K School which is closer to the mother’s work.

32. Mr F reported “When asked what her position would be if her mother wanted her to attend J School” she said “I would be good with that…whatever school I go to, I want my brothers there”.

33. The applicant argued that if Z persisted in refusing to spend time with the respondent the applicant alone would be responsible for transporting the child. The applicant submitted it was unlikely the child would spend any time with the respondent.

34. The applicant referred to an email annexed to her affidavit from Ms R, Z’s school teacher wherein the teacher reported to the applicant that on 6 October 2020 Z told her “she doesn’t like going to her dad’s as she has nothing to do. She said she had discussed it with you and you suggested that she talk to her dad which I said was a good idea…”

35. The applicant relied on the comment by Mr F at [93] wherein the child told him she only spends time with her father for short periods when mum forces me to and does not spend time overnight.

36. The applicant relied on the comment by Mr F that “I suspect that Z’s attitude towards her father and her resistance to spending time with him might not easily be overcome and consequently it may be appropriate for the youngsters to live predominantly with their mother and to spend substantial time with their father”.

37. The applicant argued that the children will not be attending school together if Z attends J School as the school is a high school for Years 7 to 12. The children will remain at H School. K School accommodates children from Prep to Year 12.

38. Mr F observed that a continuation of the status quo would place a reasonably onerous responsibility on the applicant in regard to travel requirements. Her place of work is in the opposite direction from her home.

39. The respondent submitted that there was a real risk that the children could be separated as K School “cannot predict or guarantee” if/when the boys may gain entry.[1]  The letter from the school indicated “we do have availability for Year 7 in 2021. We currently have wait listed children for Grade 2 and Grade 5 for 2021”. The letter contained a reference to criterion specified in the school’s enrolment policy which include baptised catholic siblings of current students, baptised catholic students, siblings of current students, students from other faiths that demonstrate they share the expressed values of the College.

    [1] Email correspondence from School Officer K School dated 20 January 2021

40. The respondent submitted that the children needed stability and security as the children are experiencing “personal adjustment issues” for Z. Further the parent’s acknowledge it would be very difficult to have the children attend different schools in different locations.

41. The respondent argued there was uncertainty whether all three children could attend K School and when if Z attended K School X and Y could attend that school if at all.

42. The respondent argued that the Family Report writer concurred with the parents that it is important for the children to remain together. The respondent argued that J School is “co-located with the boys’ current school H School”. Both parties have expressed a willingness to support the other parent in the children’s lives and both are capable parents.

43. The respondent argued that the Court should place weight on the fact that none of the children have any issue continuing with their current school and Z indicated she would be okay with attending J School. The respondent remains in the former matrimonial home proximate to the schools where he intends to live on a permanent basis. The applicant currently rents accommodation in Suburb C.

44. The respondent contends that the children are likely to suffer further loss with a change of school in that they will lose their friends from school. They are already experiencing adjustment issues. Z has experienced significant anger issues initially directed at her mother and now at her father.

45. The change will be significant for Z as she has not attended that school before which is a school from Prep to Year 12. J School is a high school that commences from Year 7.

46. The children are familiar with the schools in the area and secure in the respondent’s home environment whether they have lived since 2014.

47. The children would be separated if Z commenced at K School on 27 January 2021.

    DISCUSSION

48. Subsection 60CC (3) of the Act sets out the additional matters the Court is required to consider (in so far as they are relevant) when determining what order is in a child’s best interests.

    (a)       any views expressed by the child and any factors (such as the child’s maturity and level of understanding) that the court thinks are relevant to the weight it should give the child’s views

49. I accept that Z has expressed a wish to attend K School. The reason for wanting to attend the school was not explored in any detail. She is aware that her mother wants her to attend that school. So much is apparent by the question asked by the family consultant what would be her position if her mother wanted her to attend J School. She said “I would be good with that…..whatever school I go to I want my brother’s there”. I assess her wish to attend K School against the current difficulty she is having adjusting to her parents separation and the fact that she initially expressed anger towards her mother and now expresses anger towards her father refusing to spend time with him. I note that the parents indicated that Z is sporty and a good sports play. Z indicated she was aware that she could not play sports if she attended K School but would opt for sports. She was also said some of her friends were attending J School.

    (b) the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)]

50. Z currently has a positive, close relationship with her mother and wishes to spend most of her time with her. Z previously had a positive loving relationship with her father.  The applicant first raise the issue of a change of school for the children in May 2020. She filed her application on 16 October 2020. In September and October 2020 Z commenced refusing to spend time with her father. The respondent said in about October 2020 on his arrival at school to collect the children Z had been removed by her mother. I am unable to make any finding regarding what brought about the change in the child’s relationship with her father save I note the comment by the family consultant that Z’s decision to opt out of the relationship with her father was concerning indicating that she may have too much power in the family. He said children who have a level of autonomy which is disproportionate to their age and developmental stage will often experience associated anxiety. I anticipate that neither of these parents want the child to be estranged from the other. Further Z complained that her father did not let her do what she wanted to do. The family consultant observed “it would not generally be appropriate for any parent to consistently permit a 12 year old child to do what she wants.” I take into account the observations by the family consultant in this regard in making a decision regarding where Z will attend high school.

51. X and Y have a close relationship with both parents. I note that Z’s refusal to spend time with her father is impacting negatively upon her brothers as they miss her not spending that time with them.

    (c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long term issues in relation to the child and spend time and communicate with the child

52. There is no issue regarding the parent’s willingness to be involved in decisions concerning the children. Post separation they reached agreement regarding a shared care arrangement for the children. As the family consultant observed both parents presented reasonable arguments for the respective positions taken by each of them regarding the school the children should attend long term.

53. The family consultant indicated in his view that the parents had a workable parenting arrangement but had failed to develop effective communication between them regarding parenting issues and they had not developed a collaborative co-operative parenting alliance which he said will be of benefit to the children long term.

54. There is no issue regarding either parent’s willingness to maintain the children.

    (d) the likely effect of any changes in the child’s circumstances including the effect on the child of any separation from:

    (i)       either of the child’s parents; or

    (ii)      any other child, or other person (including any grandparent or relative of the child) with whom he or she has been living;

55. The children have attended H School for several years and lived close to that area during the time the parties were in a relationship together. The respondent continues to live in the former matrimonial home close to the school. In the event that Z attends K School in Town L this will involve a significant change for her. She will attend a school a significant distance from her brother’s school in Suburb M. The school is Prep to Year 12 and she has not attended that type of school before. J School is the feeder school for the primary school she attended and is close by to H School where her brothers will continue to attend. She is experiencing significant adjustment difficulties at present. Her removal to a school away from her friends, her former home, the neighbourhood she was familiar with and importantly her brothers is likely to exacerbate the current adjustment difficulties she is experiencing. Given her current refusal to spend time with her father in my view it is not in her best interests to attend a school significantly removed from her brother’s school. I accept the submissions of the respondent that there is a degree of uncertainty whether X and Y will be accepted into K School at this point. If they are not Z and her brothers are likely to experience a further separation which is not in their best interests. Social science research indicates that a sibling relationship can be one of the most enduring relationships for a person during their lifetime. Siblings often have common experiences. Z recognises the importance of her relationship with her brothers and expressed to the family consultant that whatever school she attends she wishes to attend the same school as her brothers. Though the applicant submits that J School is on a different campus if Z attends J School she will attend a school in the same location as her brothers.

    (e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

1. I recognise there is a practical difficulty for the applicant in Z attending J School. Currently Z is refusing to spend time with her father though the parents have agreed to a shared care arrangement. As such the applicant will be responsible for Z’s attendance at J School which involves significant travel for the applicant and in the opposite direction to her place of work. I take that into account when determining what parenting order is in Z’s best interests.

2. I do not accept there is any real issue about either parent’s capacity to care for the children though I note that the applicant is critical of the respondent in this regard. Z’s complaints about her father’s home being dirty were contradicted by X. The family consultant indicated that X and Y have confidence in the care of both parents and did not indicate they had received any mistreatment from either parent. Z was critical of her father and said she did not feel safe in his home however she was unable to particularise why she felt that way. Further from March 2020 the parents cared for the children in a shared arrangement. The applicant proposes that the boys spend time with their father for 6 nights a fortnight.

3. The reason for Z’s refusal to spend time with her father has not been revealed however I suspect she has aligned herself with her mother. There are a number of concerning text messages between Z and her mother which indicate that the mother is perhaps not as supportive of the child’s relationship with the father as she claims to be however I am unable to make any finding in that regard as these are interim proceedings. I note that the family consultant assessed the parties as capable, dedicated, child focused parents who want the best outcome for their children.

   (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

4. Both parents indicated that it is appropriate for each of them to have a significant continuing role in the lives of their children unfettered by such things as supervision and restrictive conditions. The fundamental issue is the choice of school and how much time the children will spend with each parent.

5. Arguments were advanced by the applicant that K School should be preferred. I am unable to make any finding in that regard. Both schools are Catholic schools providing high school education with similar opportunities. Both have similar fee structures.

   CONCLUSION

6. I have taken into account all the evidence advanced by the parties. I find that the children are still adjusting to their parents’ separation. A decision needs to be made on an urgent basis regarding Z commencing high school.

7. Z’s brothers attend H School in Suburb M. That school is in a neighbourhood familiar to all the children and is a feeder school for J School. Z has friends from H school that will be attending J School. The school is in a location close to her brothers’ school. She has been offered a place at J School. She will be able to play sports if she attends that school. She is currently refusing to spend time with her father but that choice on her part is quite recent and coincidentally at a time when her mother filed an application for a change of school.

8. I am not satisfied on the evidence before me that if an order was made for Z to attend K School (for which she has been offered a place) that X and/or Y would be offered a place at that school. The evidence from the school indicates that there is currently a waiting list of children seeking placement in Grade 2 and Grade 5 at K School. In addition the school has certain criterion for admission of children. The issue of baptism of the boys has not been addressed. An enrolment application has not been completed for X and Y for K School. There is a risk that in making an order for Z to commence school at K School the children may be separated for a significant period of time. On balance I conclude that it is in Z’s best interests that she commence high school at J School on 27 January 2021. The parties consented to an order that they shall arrange for all three children to attend the Children First Program.

I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Tonkin.

Dated:       22 January 2021