Garzelli and Lewis
[2014] FamCA 55
FAMILY COURT OF AUSTRALIA
| GARZELLI & LEWIS | [2014] FamCA 55 |
| FAMILY LAW – CHILDREN - what school a child should start at having regard to the inability of the parents on an interim basis to make a pressing decision. |
| Family Law Act 1975 (Cth) |
| Goode & Goode [2006] FamCA 1346, (2006) FLC 93-286, (2007) 36 Fam LR 422 Re G: Children’s Schooling (2000) FLC 93-025 |
| APPLICANT: | Mr Garzelli |
| RESPONDENT: | Ms Lewis |
| FILE NUMBER: | MLC | 3869 | of | 2013 |
| DATE DELIVERED: | 30 January 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 30 January 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Smallwood |
| SOLICITOR FOR THE APPLICANT: | Wilmoth Field Warne |
| COUNSEL FOR THE RESPONDENT: | Dr Kovacs |
| SOLICITOR FOR THE RESPONDENT: | Bailey Timms Lawyer |
Orders
That the child N born … March 2009 attend Suburb B Primary School until further order.
That all interim applications are otherwise dismissed.
IT IS CERTIFIED:
That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
I direct reasons be transcribed and published.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Garzelli & Lewis 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 MELBOURNE |
FILE NUMBER: MLC 3869 of 2013
| Mr Garzelli |
Applicant
And
| Ms Lewis |
Respondent
REASONS FOR JUDGMENT
The very discrete issue to be determined in this case concerns whether and where N, (“the child”) who is currently four years old, will attend primary school for the first time in 2014.
I find that it is in her best interests and proper to make an order consistent with the husband’s position.
There is a significant parenting dispute currently pending before this court. It has been described as an international relocation case. In reality, it is a parenting dispute. The wife wishes to return to live in the United States and to take the child with her. The father opposes any such relocation. The court should be able to hear the dispute within the next few months.
The background can be succinctly described because it is of little assistance to this determination. The child was born in March 2009. The husband is a 61-year-old company director. The wife is aged 48 years and describes her current position as “home duties”. That said, her counsel informed the court that her client had aspirations of going back into the workforce in the longer term.
The parties met “online” and the husband moved to the United States in 2005. I am unsure when they came to Australia, but they married here in January 2007 and seem to have lived here ever since.
They lived in Suburb B until the last 18 months of their relationship when the wife and the child moved into Suburb D (but with the relationship ongoing) and it was there that the formal separation occurred in May 2013. To the extent that the parties had what was described as a matrimonial home, it was in Suburb B where the husband still lives.
Suburb D was a rented property paid for by the husband. The uncontroversial evidence was that he failed to pay the rent and a formal eviction followed. Counsel for the wife on more than one occasion referred to the non-payment of the rent using language from which I understood I was to infer that the husband’s conduct was somehow deliberate. But the wife’s evidence was that her husband told her that he could not continue to make the payments. All of that was confusing, but the current position seems to be that he pays her rent, provides $1000 per month and has provided her with a car.
The wife’s evidence was that she moved to Suburb E because it was affordable in circumstances where she was dependent upon government benefits, and should the problem of the husband’s payments arise she could manage on the benefits. All of that now seems to have settled on the basis that the husband does pay his committed sums.
The modest distance of just over 20 kilometres between Suburb E and Suburb B has given rise to the present dispute because both parties seek orders that the child start school in a few days time. That was not always the case. In proceedings in 2013, the wife filed an affidavit in which she opposed the child starting school at all. That opposition seems now to have evaporated.
The schooling question is made a little more complicated because of the orders of the court made on 24 September 2013. On that occasion both parties disputed the time to be spent by either of them with the child. At the contested hearing before Senior Registrar FitzGibbon, both parents were represented by counsel and orders were made that the child live with the husband from 3.45 pm on the Tuesday until 3.45 on the following Friday in the first of two weeks, and from 3.45 pm on the Thursday of the second week until 7.15 pm on the following Sunday. Despite those orders being contested, no review application was made by either party. Other orders were made, but they are not relevant for my purposes and were not the concentration of counsel.
The same days and periods of time are looked at by each party differently. Although the parties agree that each has five school days per fortnight with the child, the travelling will be different for each party depending upon where the child goes to school. If she is living with the husband and going to Suburb E to school, she will be travelling that route with her father on nine occasions per fortnight. If she is living with the wife and going to Suburb B to school she will be travelling that route with her mother on 11 occasions in the fortnight.
In addition to the number of trips, there is the other argument raised by each party about the nature of the trip. Suburb B to Suburb E was said by the wife to be easier in the morning because of traffic coming into Melbourne, yet Suburb E to Suburb B was said by her to be a problem because it was in peak hour traffic and she would have to get the child out of bed at 6 am and leave home by 7.30 am. For the wife, that would mean six morning trips per fortnight battling peak hour traffic.
The issue of the time in the car for the child was disputed, and I cannot make any finding about just exactly how much time or, for that matter, stress, would be involved.
What is obvious, however, is that with the extant parenting orders remaining in place, the child is going to be travelling back and forth against Melbourne regardless with whom she lives or where she goes to school.
Although this hearing was on the urgent and discrete issue of schooling, there is a longer term problem surrounding the travelling question. If the wife remains in Australia beyond the relocation hearing, her position as pleaded was that there should be a reduction in time involving the husband, but still one that would involve a number of days where the child was travelling backwards and forwards.
The irony is that each party is proposing to seek the court make orders that they have equal shared parental responsibility for the child. If that expression is not treated as just meaningless words, two observations may be contemplated. First, s 60B of the Family Law Act 1975 (Cth) (“the Act”) refers to one of the objects of Part VII to be that parents share the parental duties and responsibilities of the care and development of their child. Secondly, if an order for equal shared parental responsibility is made, s 65DAC of the Act provides that if the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child – and I interpolate here that such an issue would be where the child goes to school – the order is taken to require the decision to be made jointly by those persons, and that means that they are required to consult in relation to the decision to be made and make a genuine effort to come to a joint decision about the issue.
It would seem that not only have the parties stumbled at the very first hurdle and have no mechanism for sorting out their decision-making dispute, but they have seen the resorting to the Court as their only solution.
In this application the husband was the applicant. Although there was no specific application for interim orders by either parent, both had understood what the discrete application was about.
When the case began, counsel for the wife sought leave to file an application in a case in which it was said she would seek orders to vary the existing orders on the basis they were just not working. This issue had not been raised on 17 January, when both counsel said the discrete issue was schooling. Counsel for the husband opposed the pursuit of those new orders at that hearing, and I agreed. She observed that the wife had not produced evidence in any event to show the justification for a review of the orders at this stage.
The husband relied upon a specific affidavit filed for the discrete issue, as did the wife. Each counsel referred to other material, including affidavits relied upon in the previous hearing.
An expert report was filed by the wife from Dr F which makes a number of observations about the parents. The wife wanted to rely upon it, such that she attached it to her affidavit. However, the facts remain contentious, and without the evidence being tested, it would be unsafe for me to conclude much from it. Significantly, Dr F observed that she thought the Court would benefit from a psychological assessment of the parties before trial. Having made some preliminary remarks, I am not at all sure that I can draw too much of an expert nature from the report without it being completed by Dr F after she has the benefit of the further psychological assessment to which she referred.
Thus the discrete issue must really be determined on limited and untested evidence but I also bear in mind that the child is very young, and the next few weeks of schooling will not be critical to her future or her development.
The husband’s evidence was that he had attended and observed both schools. Both husband and wife referred to other possible options, but as that was not something about which either was enamoured, I have not considered it either. The wife too apparently attended a number of schools.
There is no question that the child is enrolled in both schools, knows both schools and can start in either. The child is too young to express an opinion or view as to which should be her starting point in educational life.
In his evidence, the husband set out the distances and travel times as he saw them. I think he is being a little unrealistic. For example, he said that the distance that the wife would travel was 27.5 kilometres or “about 24 minutes”. Mathematically, she would be travelling in excess of 60 kilometres an hour. Even with a combination of freeway and suburban streets that seems unlikely, particularly in peak hour traffic. In fairness, he made similar observations about his own travel time in the opposite direction. To the extent that the distinction is one of distance and time, it is not helpful because of my earlier observations about the number of trips and, importantly, the period of the day involved. The husband had at least tried to come up with some indication by the use of maps to show how the travel panned out.
One important observation is that the child knows the Suburb B home and area. It has been her base, at least with the husband, since her birth. Her period of residence in the area with her mother has been only six months. The wife’s evidence descended into detail about the local activities and friends the child has made in the Suburb E area. There are activities such as swimming and gymnastics, and she has a friend with whom she spends some time. Although it was not specifically detailed by the husband in the same way, it is open for me to infer that the child has what the husband’s counsel described as “community” in the Suburb B area, where she has similar benefits and relationships. In my view, nothing turns on that sort of detail.
Counsel for the husband pointed to the husband’s evidence about the NAPLAN results, which would appear to show Suburb B as a more favoured school based on the better schools ratings. Against that, the wife’s evidence descended into the detail that she had learned from the school in Suburb E. She described things such as being “impressed” with staff because they knew every child’s name. Her impression was that it was an “intimate” school compared to “larger schools”. The school had excellent values and vision with cooperative learning strategies. She referred to “codes” of conduct, homework, bullying and student welfare. None of this was of any real assistance, because the child is just starting out on that long 12 year journey.
As I indicated in discussion, a school can provide all of the world’s best practices and opportunities for learning, but if the child is not able to take advantage of them, the practices are not of much use. I do not propose to contemplate questions of socioeconomic and cultural issues that may possibly also affect how well a school assists a child.
The husband’s evidence was that the parties had attended a fundraising day in Suburb B before things collapsed to what they now are. Each party put their credit on the line in regard to one issue. The husband said at that the fundraising day, he and the wife agreed on the Suburb B school; the wife emphatically disputed that. Obviously that is a matter for trial.
The child has attended a local day care centre in Suburb B and has playmates in the area, and as I mentioned earlier having regard to her age, I suspect, because there is no evidence to the contrary, she would settle wherever she went. Although Dr F thought the child is more attached to her mother than her father, there was a positive bond with both parents to such an extent that Dr F thought the child thought both her parents were safe, loving and caring figures. There is no evidence that contradicts that assessment.
The wife has a medical history relating to multiple sclerosis, but in a very clear statement in her affidavit she said that her health was good and nothing caused her concern about it. Thus driving, stress and physical capacity are not an issue in this case.
There was one fact of contention but not of substance. The wife complained that she had an old car which broke down one hot recent day on the Westgate Bridge. The wife’s evidence appeared to be that she could therefore not do any driving such as to Suburb B. That now seems to have been alleviated by the recent acquisition by the husband of a motor car. The wife seemed to reject that as some sort of genuine gesture on the part of the husband because she said it was a 1996 model whereas he was driving a current model car. Further, counsel for the wife said that the car was purchased in the husband’s name so, therefore, she did not “own” one. I found this perplexing because for the husband to be taking risks with the safety of the child, does not make sense in the light of the evidence, particularly of Dr F. The technicality of who owns the vehicle is just that. Registration in Victoria is proof of registration, not ownership, and thus if the car was bought for the wife, it must surely belong to her, even if the contractual arrangement initially was made by the husband. There is, thus, nothing of substance to that issue.
There are therefore two distinguishing features between the proposals of the parties. The wife says that she would have the greater burden of travel. There is little that can be said about that because it is the reality but, then again, is it of such significance that it forms the basis of the determination. Is it appropriate to balance that inconvenience out against the fact that the wife is engaged in home duties and presumably, therefore, has more time than the husband who runs his own business? None of the evidence would support any such conclusions. The time element is modest in respect of the welfare of the child question.
The second issue which does concern me is that the wife’s primary substantive position ahead is that she wishes to move to the United States. If that was to be successful, there will be another move anyway for the child. If she is not successful, her evidence about the longer term residence of the child is unclear. Counsel for the wife said that her client would stay in the Suburb E area, but if that was to occur, as I earlier mentioned, the child would still be travelling backwards and forwards. There is a prospect that the child will move again, but whether that would affect her schooling, I am unable to say.
What these issues all mean is that the one constant and stable theme is that she is accustomed to Suburb B and has the community of acquaintances and family there. It was said by both the wife and Dr F that there was some desire by the husband to have Suburb B because it was his old school. That is apparently factually incorrect but it is noticeable that the wife repeated it in her recent affidavit long after Dr F had said it. The wife presumably got that information from somewhere, if it was incorrect.
Both counsel agree that there were no authorities of any significant assistance, nor did the relevant Part VII provisions shed light on how these determinations should be made. Be that as it may, the law sets out the approach.
In Re G: Children’s Schooling (2000) FLC 93-025, the Full Court observed that whilst there is no legal presumption of choice in favour of the parent with whom the child primarily lives, it may be relevant in respect of the choice facing the Court. I have already observed that there is a significant sharing arrangement here and, either way, both parents will have to be transporting their daughter.
In Re G, the Full Court observed that the trial judge had made an error of law. Their Honours were then asked to exercise their discretion to determine the dispute. They made remarks such as:
…we think there is considerable substance to arguments on her behalf that weight should be given to the travel commitments associated with the school that the children attend. Where a decision must be made by a Court in circumstances where parents are unable to agree as between two schools which are prima facie very satisfactory, we see advantages to the children attending a school which is closer to the children’s residence. In terms of the practical fulfillment of parenting obligations, it is desirable to enhance the ease with which a parent who assumes the bulk of day to responsibility can meet the multiple associated demands of children’s dependence on a caregiver for transport, participation and security…
To the extent that those observations are a guide, I could not find on this evidence that the number of days’ difference between the parents is of any real significance. Each parent has a primary home and it is not impossible, (albeit perhaps difficult and inconvenient) for the school travel to be arranged by either parent at the school closest to where the other parent lives. Both parents share the bulk of the parenting responsibilities; both schools are equally appropriate on the material presented.
The Full Court also observed that:
…we do think that in considering the effects of any decision as to schooling and like matters, it is proper to consider evidence as to any greater effect upon a resident as distinct from a non-resident parent that a particular decision will have. This is because it is the resident parent who will in most cases have greater day to day responsibilities in respect of the child and it is, we think, in a child’s best interests that the resident parent should not be subject to more irksome and unnecessary additional restraints than such commitments already entail…
For the reasons just mentioned, I would not find on the evidence that there is a discernible difference in respect of those matters. The Court only has the affidavit material which is untested but, in a short term interim arrangement, that is not unusual. As the Full Court in Goode & Goode [2006] FamCA 1346, (2006) FLC 93-286, (2007) 36 Fam LR 422 observed:
…the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.
The findings I can make and have made are those to which I have earlier referred.
Section 60CA requires the Court, in deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration. That must mean that, whilst it is the primary consideration, it is not the only one. The Court is entitled to look at issues such as inconvenience and capacity of parents to live their own lives as they see fit. Here, however, the issue is very narrow and because the inconvenience to the parents is for a short term and hardly of any great significance, I shall not give that consideration much weight at all.
The power to make an order about the school was not disputed by either party and I am satisfied that it falls within the definition of a parenting order in s 64B(2).
The Court determines what is in a child’s best interests by considering the matters set out in s 60CC of the Act. The primary considerations are set out in s 60CC(2) and they are the benefit to the child of having a meaningful relationship with each parent and the need to protect the child from physical or psychological harm, from abuse, neglect or family violence. Neither of those primary issues was of relevance here.
It is accepted by both parties that their daughter has a good relationship with the other and that, in turn, leads to the child having the benefit of a meaningful relationship with both. There are no issues raised by the parties in respect of the second factor.
There are additional considerations set out in s 60CC(3) that must be considered. Dealing with them globally, I find that the views expressed by the child could not have any weight here because of her age, development and understanding of the dispute. Questions of parental capacity, parental responsibility and family violence were not argued as affecting the determination.
The nature of the child’s relationship with each of her parents is beyond doubt. While Dr F referred to the attachment to the wife because of the child’s age, in this interim hearing, after significant sharing orders had been made, I could not make a finding that there is much of a difference between the respective natures of those relationships. I accept that they are different but nothing about that affects this determination.
To the extent that it needs to be said, I have no indication in the evidence that either party, but particularly the wife, would not accept the Court’s determination and make life difficult for their daughter. In any event, this determination will be reviewed in the final hearing which is not far away. Similarly, nothing turns on the question of the impact on the child by these orders. I said earlier I suspect she will simply adjust. Travelling in a car for significant periods was expressed by counsel for the wife as a concern, which counsel for the husband endeavoured to minimise as not important because of the limited time involved as the husband perceived it. In my view, it is hard to understand why either party would do anything other than enjoy the time with the child and interact with her regardless of the driving time. That seems to me to be an indication of how organised and focused each parent is.
I do not propose to be concerned about that issue. I take into account that the husband has always made his position clear by the pleadings that he wants to be involved in his daughter’s life. The objects and principles in section 60B resonate here. The Court is entreated to contemplate those objects and they underpin the issues that have to be determined.
Questions of the financing of this child’s life have not loomed large, even though the wife’s case was that she did not trust the husband to pay. Counsel for the husband said that if the wife returned to the Suburb B area, her client would finance it. I did not detect any interest of that nature from the wife. Nothing I read indicated that the Court should have any concerns that the husband has not and will not provide assistance of a financial nature to ensure that the child is well cared for. Whilst there may be a focus in the legislation (and in many litigants’ minds) about simply fulfilling obligations under child support legislation, I consider that evidence of a responsible and proactive parent is, more often than not, seen in what endeavours a parent goes to in ensuring that the child is well catered for, rather than simply resorting to some government formula.
Section 61DA(1) requires the Court when making a parenting order to apply a presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child. It was not argued here that the presumption applies and, leaving aside the fact that the issue had presumably been contemplated in 2013 during the last interim hearing, as this is an interim hearing, it is neither useful nor helpful to contemplate that pathway again. (See, for example, s 61DA(3).)
Having regard to all of the s 60CC factors, it seems to me that it is in the best interests of the child that she attends the Suburb B school. The best interests are the paramount consideration. Whilst there are differences between the parties’ proposals, they are modest and not ones that should significantly influence this determination. This is not a case in which I could simply balance the matter out in some sort of justice way. In my view, Suburb B is the more stable base for the foreseeable future and is the one constant in the child’s life. That is where she should start school, even if it means changing that later this year.
I certify that the preceding fifty three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 30 January 2014.
Associate:
Date: 12 February 2014