Galpin & Galpin

Case [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…

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AGLC
Galpin & Galpin [2021] FCCA 84
Case
[2021] FCCA 84
Decision Date

CaseChat Overview and Summary

The case of *Galpin & Galpin* concerned a dispute between Ms Galpin (the applicant) and Mr Galpin (the respondent) regarding parenting orders for their three children, Z (born 2008), X (born 2010), and Y (born 2013). The central issue before Tonkin J was the choice of high school for Z, who was due to commence Year 7. The applicant favoured K School, while the respondent supported Z attending J School.

The court was required to determine which high school would be in Z's best interests, considering the paramount consideration of the child's welfare as mandated by section 60CA of the *Family Law Act 1975* (Cth). This involved assessing various factors outlined in section 60CC of the Act, including the benefit of a meaningful relationship with both parents, the need to protect the child from harm, the likely effect of any changes in circumstances, and the practical difficulties and expense of maintaining contact with parents. The court also had to consider the children's ongoing adjustment to their parents' separation and the importance of sibling relationships.

Tonkin J reasoned that Z's transition to high school was a significant event, particularly given her current adjustment difficulties following the parental separation. The court noted that J School was a feeder school for Z's primary school, was located near her brothers' school (H School), and had friends from her primary school attending. Conversely, K School was a considerable distance away, and there was uncertainty regarding the admission of X and Y to that school, potentially leading to a separation of the siblings. The court found that attending J School would minimise disruption and maintain important sibling connections, which were crucial for Z's well-being. While acknowledging the practical difficulties for the applicant in transporting Z to J School, the court concluded that this was outweighed by the benefits of Z attending a school in a familiar environment with her brothers.

The court ordered that Z commence attending J School on 27 January 2021, with both parties to complete the enrolment process by 25 January 2021. The existing shared care arrangement for the children was to continue unless otherwise agreed. The parties were also ordered to enrol X and Y in K School, attend mediation to discuss outstanding parenting issues, and arrange for all three children to attend the Children First Program. The issue of changes in the children's living arrangements and future schooling was adjourned for an interim hearing on 5 March 2021.

Orders

Orders of the court

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.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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 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. 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. 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.

Ratio Decidendi

Legal Principle Established

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; 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; 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. 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.