Gilkes and Lenton - [2008] FMCAfam 775

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GILKES & LENTON

[2008] FMCAfam 775

FAMILY LAW – Parenting orders – whether there should be equal time – effect of travel to school.

Family Law Act1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 65DA(2),
Federal Magistrates Court Rules 2001

Re G (Children's Schooling) 2000 FamCA 462

Applicant:

MR GILKES

Respondent:

MS LENTON

File Number:

DGC 3725 of 2007

Judgment of:

Phipps FM

Hearing date:

27 June 2008

Date of Last Submission:

27 June 2008

Delivered at:

Melbourne

Delivered on:

27 June 2008

REPRESENTATION

Counsel for the Applicant:

Ms M.L. Smallwood

Solicitors for the Applicant:

Ryan Carlisle Thomas

Counsel for the Respondent:

Mr D.J. McLeod

Solicitors for the Respondent:

Victoria Legal Aid

Counsel for the Independent Children's Lawyer:

Ms M.L. Mandelert

Solicitors for the Independent Children’s Lawyer:

Hardys

ORDERS

The parents have equal shared parental responsibility for the child of the relationship namely [B] born in 2004.
That until such time as the father relocates to within 15 kilometres of [W] the child live with him at the following times:
(a)Each alternate weekend from 5.30pm Friday until 5.30pm Sunday during school terms, commencing the first weekend of the third school term 2008;
(b)For half of all school holidays at times and on dates to be agreed but in default of agreement the first half in even numbered years commencing 10.00am on the first Saturday of the holidays and the second half in odd numbered years commencing 10.00am the second Saturday of the holidays;
(c)       On a week about basis during the long summer holidays;
(d)       Changeovers are to occur at [W];
(e)       At further and other times as can be agreed between the parties.
That upon the father relocating to within 15 kilometres of [W] the child lives with him at the following times:
(a)In the first week from 5.30pm Thursday (or the conclusion of school upon the child commencing school) until 8.30am Monday (or Tuesday if Monday is a non school day upon the child commencing school);
(b)In the second week from 5.30pm Thursday (or the conclusion of school upon the child commencing school) until 8.30am Friday (or the commencement of school);
(c)For half of all school holidays at times and on dates to be agreed but in default of agreement the first half in even numbered years commencing 10.00am on the first Saturday of the holidays and the second half in odd numbered years commencing 10.00am the second Saturday of the holidays;
(d) On a week about basis during the long summer holidays;
(e) Changeovers are to occur at [M];
(f)At further and other such times as may be agreed between the parties.
That the child [B] born in 2004 live with the mother at all other times save and except:
(a)From 5.00pm Christmas Day until 5.00pm Boxing Day in 2008 and each alternate year thereafter;
(b)From 5.00pm Christmas Eve until 5.00pm in 2009 and each alternate year thereafter;
(c) From 10.00am to 5.00pm Father’s Day each year;
(d)For a period of 4 hours on the child’s Birthday and the father’s Birthday each year;
(e) As may be otherwise agreed between the parties.
That the father’s time with the said child shall be suspended:
(a)From 5.00pm Christmas Day until 5.00pm Boxing Day in 2009 and each alternate year thereafter;
(b)From 5.00pm Christmas Eve until 5.00pm Christmas Day in 2008 and each alternate year thereafter;
(c) From 10.00am to 5.00pm on Mother’s Day each year;
(d)For a period of 4 hours on the child’s Birthday and the mother’s Birthday each year;
(e) As may be otherwise agreed between the parties.
That the child shall attend [Y] Primary School for her Primary School education unless otherwise agreed between the parties, such agreement to be evidenced in writing.
That each parent be at liberty to attend any school, sporting and extra curricular events parents are normally permitted to attend.
That the parents are to keep each other informed of:
(a)Their current telephone numbers and residential addresses and notify the other of any change within 30 days;
(b)Any prescribed medication and treatment regime, accident, illness, injury or hospitalisation suffered by the child;
(c)Any medical practitioner attended by the child and each party is to authorise such practitioner to liaise with the other parent.
THAT the parties are hereby restrained from causing or permitting the child to refer to any other person other than the parents as Mum or Dad.
THAT the parties, their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of the said child, and from permitting any other person so to do.
THAT the parties shall keep and maintain a communication book.
THAT otherwise all extant applications are dismissed.
THAT pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001, the Court certifies that it was reasonable for each party to employ an advocate.
THAT pursuant to s.65DA(2) of the Family Law Act1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

DGC 3725 of 2007

MR GILKES

Applicant

And

MS LENTON

Respondent

REASONS FOR JUDGMENT

The parties in this application are Mr Gilkes and Ms Lenton. They have a four and a half year old daughter, [B], born in 2004. They disagree on the school she should attend when she commences next year and the extent to which [B]'s time should be shared between her parents.
The mother's proposal is that until the father relocates to within
15 kilometres of [W] that [B] live with him, alternate weekends, 5.30pm Friday till 5.30pm Sunday; half school holidays; week-about during long summer holidays and proposals for Christmas and other celebratory days.
Upon the father relocating to within 15 kilometres of [W] that [B] live with him in the first week 5.30pm Thursday, or the conclusion of school once [B] commences school, until 8.30am Monday or Tuesday, if Monday is a non-school day. In the second week from 5.30pm Thursday or the conclusion of school until 8.30am Friday or the commencement of school. Then half school holidays and week-about in the long summer holidays.
The Christmas proposal is alternating Christmas Days, Boxing Days and there are proposals about school reports, school events, each keeping the other informed of telephone numbers, medication and medical practitioners and some other restrictions. Her proposal is that [B] should attend the [Y] Primary School for her primary education.
Mr Gilkes's proposal is the same as the mother's until he relocates to within 15 kilometres of [W], that is, the alternate weekends. Upon him relocating to within 15 kilometres of [W], the mother's proposal for an initial period of six months but subject to a change of school. After six months that [B] spend equal time with each parent, that is, week-about. He makes the same school holiday proposals as the mother.
The Christmas proposals and other matters are agreed. The father's proposal then is that [B] should attend [S] School in [W]. He proposes that he will pay all school fees and the cost of bus travel from [Y].
To explain how those proposals arise and the issues they raise a brief background is the best way of commencing. The parties commenced living together or formed a relationship in August 2002. They separated on 25 August 2005. They were at one stage engaged to be married. When they separated [B] was 18 months old. The mother and [B] continued to live in [N] where the parties had been residing. Mr Gilkes moved to [F]. [B] spent time with him, alternate weekends, Friday to Sunday, every Wednesday for two to three hours.
Then on 16 December 2005 [B] and the mother moved to premises at [Y] which are owned by her father. She has since entered into a terms contract sale to purchase the property from her father for $90,000 payable at the rate of $150 a week with final payment due in 2027. Title does not transfer to her until the whole of the purchase price has been paid. If she does not pay the whole of the purchase price then she forfeits the money she has paid. It in effect becomes rent over the property.
Mr Gilkes is now living at [C], which is a little north of [R]. Both [B]’s mother and father have married since they separated. Mr Gilkes married in January 2007 to Ms G. Ms G, has a daughter, [E], who is aged six. They have a daughter [D] who was born in 2007, aged nine months.
[E] has no contact or relationship with her biological father. [B]'s mother married Mr L in May 2007 and they have a child, [G], born in 2007, aged 10 months.
Mr Gilkes's position is that [E] is attending Grade Prep at the [H] School in [R]. He is employed in the information technology industry as an information technology consultant. He is well remunerated. He has a base salary of nearly $150,000. He receives a motor vehicle allowance of $12,000. He has a bonus, he described it as an at-risk bonus, of $27,000 and 9 per cent superannuation. If he receives the bonus his remuneration package is about $200,000.
His employment is such that he is able to work from home but he is required to attend at his employer's city office in the Melbourne CBD two or three days a week and it may be every week. They are at random times and the requirement is at short notice. He cannot predict when he might need to go to the city. He also may be required to travel overseas. He has had to travel three times this year. The shortest period he was away was three days and the longest was 10 - 12 days.
Ms Lenton, her married name, lives in [Y]. The current arrangements are in accordance with an order which was made in October 2007 in these proceedings which provide for [B] to live with her and to spend alternate weekends with her father, Friday night to Sunday night. Those orders also provide for school holidays.
The situation from separation up until now has been largely in line with the alternate weekend arrangement, 5.30pm Friday till 5.30pm Sunday. When the application was commenced by Mr Gilkes on 10 September 2007, his application was to have [B] live with him but the proposal is now as I have described it.
One more thing needs to be said about the proposal, that is, the father's proposal. Where he lives at the moment in [C] in conjunction with his working arrangements means that a change for the amount of time [B] spends with him is not possible. He proposes to move to [W] or close to [W], in the [W]-[U] area. His evidence is that that is as far away as he can move from the city and make it feasible for him to spend the two or three days in the city that his employment requires. It is two hours travel each way. If he goes any further out it becomes too much of a burden. He proposes that that is what he will do, depending on the result of these proceedings.
He then proposes that [B] should attend [S] School in [W]. Why that is so is that [S] School has a number of dedicated bus routes coming from the [V] area and one of them passes through [Y]. He proposes that when [B] is with her mother she would catch the school bus to school and he will pay all the cost.
His proposal, he says, cannot work unless [B] is attending school in [W] because if he had to get her to school at [Y] he would have to travel from [W] out to [Y] and back through [W] to work. The amount of time in travelling is half an hour from [W] to [Y], so adding an hour to his travel, makes it impossible for him to meet his work commitments. Dropping [B] at 9.00am means it would be two and a half hours before he got to work. He would then have to leave work shortly after lunch if not earlier.
His case is that neither the five-days/nine-days nor the week-about arrangement is possible unless [B] is attending school in [W]. His case is that if the court's decision is that [B] should attend school at [Y] he will not move and the time will have to remain at alternate weekends.
Currently where he is living his family arrangements are happy and very satisfactory. The evidence about [B] spending time there corroborates that. [B] has a good relationship with her father. She has a very good relationship with [E], who is about a year older, and also with the baby. [E] is attending school in [R], Mr Gilkes gave evidence that he and [E]’s mother are very happy with that school. In order to put into place an arrangement where [B] can spend more time with him he is prepared to move. He described the moving as a sacrifice.
He does not yet have a specific place to stay. That is because he does not know whether he will be moving. He has made inquiries and has put in an offer on a house in [U]. He’s looking for a three-bedroom house in the [W]-[U] area. He says since he has been looking there have been three or four properties available. An issue was raised about Mr Gilkes's motives in proposing the arrangement but I accept that he is quite genuine in his desire to have [B] spend more time with him and that he has put together this proposal because he sees it as the only feasible way of having [B] spend more time with him and at the same time maintain his employment.
He said the nature of his employment is such that it is only available in Melbourne. I take that to mean either in the city or within the central city business areas. To attempt to look for employment elsewhere would be limiting. He is also fortunate that he has the flexibility that enables him to work from home on the days when he is not required at the office.
He has two or three days a week at home, perhaps sometimes more.
He said that if he did have to find other employment, if his current employment ceased for some reason or another, he believed he would certainly be able to find other employment. It is clear from his remuneration that he has skills which are in demand. He believed that he would be able to find other employment which gave the same two or three days at home flexibility. He did say his options would be limited.
There is a school issue in this case, that is, which school [B] will attend for her primary years, but it is inextricably bound up with the other issues in this case. That is, what the living arrangements for [B] will be.
As far as travelling is concerned the school bus schedule is part of the evidence. The bus she will be catching leaves at 7.55am from the post office in [Y] which is about five minutes walk from where [B] is living and it gets to school at 8.40am. On the way back it leaves school at 3.40pm and gets back to the post office at [Y] at 4.16pm. The [Y] School is five minutes walk from her home.
Currently she goes to four‑year‑old kindergarten two days a week in [Y]. She went to three‑year‑old kindergarten in [Y]. She goes to a play group once a week in [Y] and Gymbaroo in [T]. All of those activities will cease when she goes to school.
Her mother does not work. Her husband is an apprentice [omitted].
His income varies depending upon the amount of work he does. It is around the $400 a week mark. Her partial parenting pension varies according to the amount of income her husband has earned, $200 a fortnight up to $350. She also receives family tax benefit and Mr Gilkes pays child support which at the moment is about $240 a week, but it will go down to just under $200 a month from 1 July. That is next Tuesday.
There are interlocking issues in this case of what living arrangements would be in [B]'s best interests and what school she should be attending. Ms Slattery prepared a family report. Her recommendation is for the five/nine arrangement upon Mr Gilkes moving to [W]. She recommended against an equal time arrangement on the basis of the degree of conflict and therefore inability to communicate between the two parties. Because there was some concern by the father through his solicitor precisely what Ms Slattery meant in certain parts of her report, the father's solicitor sent a letter to the independent children's lawyer who sent it on to Ms Slattery who prepared a letter dated 20 May 2008 which is part of the evidence.
She describes her recommendation, the five nights/nine nights as a substantial and significant time. She makes it clear, if it was not already clear from her report, in her letter that equal time requires a number of factors such as the parents living close together, minimal conflict, effective communication, respecting each other as parents, both parents participating in the child's schooling and values such as which school the child will attend.
It is with that background that I have to decide the case in accordance with the relevant provisions of the Family Law Act 1975 (Cth).
The presumption of equal shared parental responsibility set out in s.61DA of the Family Law Act 1975 (Cth) applies in this case. Both parties agree that is the case. That means that in addition to considering the best interests considerations in s.60CC I have to consider the matters contained in s.65DAA.
Section 60CA says that the best interests of the child are the paramount consideration. Those considerations have to be looked at in the context of the objects of the act set out in s.60B. Section 60CC contains the considerations which are relevant to determining the best interests.
Section 65DAA , the presumption of equal shared parental responsibility applies. If the court is going to make an order that there be equal shared parental responsibility, which is what will happen in this case, the court is required under subsection (1) to consider whether the child spending equal time with each of the parents would be in the best interests of the child and to consider whether the child spending equal time with each parent is reasonably practicable, and if it is, to consider making an order for the child to spend equal time.
For substantial and significant time the same considerations apply if the court considers that it is not going to make an order for the child to spend equal time. Subsection (5) says that in determining whether it is reasonably practicable for there to be equal time or substantial and significant time the court must consider how far apart the parents live from each other; the parents' current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents; the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and the impact that an arrangement of that kind would have on the child.
Ms Slattery's opinion is that while the five/nine arrangement which meets the definition of substantial and significant time which is in subsection (3) of s.65DAA is desirable, the equal time is not because in this case the parties do not have those factors which I have referred to earlier.
So far as equal time and the substantial and significant time considerations are concerned, subs.(5) considerations, the first is how far the parents live from each other. I will deal with those before I turn to the best interest’s consideration but they cannot be considered in isolation. If the father is near [W] the parents will live, the evidence shows, half an hour to three‑quarters of an hour drive from each other, about 42 kilometres.
The cost of the travel is an issue in the way the mother puts her case.
I have done an approximate calculation assuming a cost of petrol of $1.60 a litre and that a car travelling that distance on country roads uses eight litres per 100 kilometres. A round trip twice a day for a week would mean something over $100 in petrol. That is one consideration in terms of how far apart the parents will be living from each other. That is between [Y] and [W]. A factor for the mother travelling from [Y] to [W] to attend school events.

More significant, under the consideration how far apart the parents live from each other, is how after school activities could be implemented for [B] if she was spending week-about with each parent. What they might be is not known but it can be assumed she will engage in normal after-school activities, some of them organised, such as sporting activities. Callisthenics is something which has been mentioned. That is because [E] does callisthenic classes at the moment. [B] will do that or other similar sorts of activities. Then there are informal arrangements such as playing with friends, playing at a park, playing in a playground.
There is, I consider, a difference between the five/nine and the week‑about arrangement because if it was a five/nine arrangement [B] would be largely during the week in [Y]. That would point towards both regular and irregular after-school activities being much easier to implement if she was attending school in [Y]. They would be easier to implement whatever school she was attending if she is predominantly after-school in [Y].
Neither parent raised any issues about ad hoc things which might happen such as [B] forgetting a book or part of a school uniform or something which had to be at school. Either parent, likely Mr Gilkes because he has readily volunteered that that is what he would do. He would drive and collect it. I assume that he would readily do it either way, wherever [B] was at the time.
The next of the reasonable practicality considerations is the parents' current and future capacity to implement the arrangement and the parents' current and future capacity to communicate with each other. The evidence on their ability to communicate at the moment is clear-cut.
Mr Gilkes said in his evidence that he agreed with a statement by Ms Slattery at paragraph 40 of her report, slightly paraphrasing, but correctly stating the husband's evidence, "[B] does not have two parents who are able to communicate and make joint decisions for her."
He agreed with that statement. Ms Lenton says that there is no communication between them. Ms Slattery, when she reached that conclusion at paragraph 40, had set out why she came to that conclusion. She gave the examples of criticisms and behaviour each parent gave against the other.
Ms Smallwood for the father has submitted that once the arrangements are in place and the parties know what the arrangements are, if it is an equal‑time arrangement, communication can take place. But so far as the considerations of the parents' current and future capacity to implement the arrangement and their capacity to communicate, they have no current ability to communicate because that is what each one says. There is nothing in the evidence to suggest that that will change in the immediate future.
I turn to their capacity to implement the arrangement between the parents. Mr Gilkes says this of Ms Lenton, when asked what he thinks of her as a parent.
I have difficulties with her as a person. We don't see eye to eye. I don't think she is an ideal parent. She has done an acceptable job. We have basic difference of opinion on a number of issues.
One of the things Ms Slattery said of Mr Gilkes was that he had a greater capacity to provide for [B]'s intellectual needs, he is quite an intellectual person, she said. My observation is that he does have a much better ability to articulate what he is putting than Ms Lenton does.
But Mrs Lenton’s attitude towards Mr Gilkes can be seen from her MySpace page. An extract from the page was tendered on behalf of the father. It is a private communication between Ms Lenton and her husband. She was derogatory in quite offensive terms of Mr Gilkes.
That illustrates that she has a similar attitude to Mr Gilkes as he has to her. His is articulated in a better fashion.
In terms of the parents' capacity to implement the arrangement of equal time as expanded by Ms Slattery, there needs to be minimal conflict, effective communication and respecting each other as parents.
The evidence shows that those factors do not exist in this case. It comes from the evidence of each of the parties.
As far as the reasonable practical considerations are concerned, there are some difficulties with how far apart they live that could be resolved with goodwill, communication and cooperation between the parents. But the evidence suggests little current and future capacity to implement the arrangement for equal time and little and indeed no capacity to communicate with each other and resolve the difficulties that might arise.
They have, so far as the past arrangements are concerned, negotiated some changes but they have also not negotiated other changes in circumstances where there were significant events taking place. One side, in Mr Gilkes' family, his brother was getting married; and on the other side, Ms Lenton's sister, who is in the army, was leaving for a deployment to Solomon Islands and there was a farewell party for
Ms Lenton's sister. Each parent wanted [B] to attend on those occasions for obvious reasons but the arrangements were not negotiated.
Each parent has their reason and there may well be sound reasons why the arrangements did not work or why the arrangements could not be negotiated. But while on occasions they have managed to be flexible, that is not always the case. There are two occasions, occasions important to each party, where it did not happen. The equal time proposal, to the extent I have discussed does not meet the first three criteria for reasonable practicality.
The fourth of the considerations is the impact the arrangement would have on the child. I will deal with that under the s.60CC considerations.
Turning to the s.60CC considerations, the primary consideration is relevant, the benefit to the child of having a meaningful relationship with both of the child's parents. Her mother is her primary carer, but she does have a very close and loving relationship with Mr Gilkes and with his wife and the two children. Ms Slattery's recommendation is that that relationship will be promoted by increasing the time. There is no issue about protection issues or abuse.
Turning to the additional considerations, [B] is too young to express views and nothing comes out of Ms Slattery's report which shows that [B] has wishes other than [B] would obviously be pleased to spend more time with her father and his family.
Next is the nature of the relationship of the child with each of the child's parents and other persons. I have described her relationship with her parents. [E] is not biologically related to [B] but the evidence shows that she has a sibling relationship with [E]. There is the baby in the father’s family, [D] and [G], who is Mr L and Ms Lenton's child, who is 10 months old. She has an excellent relationship with the two babies in her life.
Next is the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship. It is put on behalf of
Mr Gilkes that Ms Lenton is not prepared to encourage the relationship because she is not prepared to agree to [B] going to [S] School and she is not prepared to do any travelling to [W]. The mother’s objection is in part the cost and in the burden of travelling both on her and on [B].
Against that is what she is proposing - the five/nine arrangement.
That was not her proposal in her response. That was to continue the current arrangement, but she has accepted the recommendation from Ms Slattery. I see that as evidence of her willingness to facilitate the relationship. She has said, both in her proposal and in her evidence, that if it was possible to make it work she thinks that an equal-time arrangement in the future is something that can be implemented; but only if it can be made to work. So far as Mr Gilkes is concerned he clearly recognises the need for [B]'s relationship with her mother.
Next is the likely effect of any changes in [B]'s circumstances. [B], since the separation in 2005 has lived with her mother and seen her father on weekends. The change which is being proposed by Mr Gilkes means once she starts school she will have this change: five nights with him, nine nights with her mother. She will be starting school and she will be travelling by bus, in that first six months, every morning in which she is at her mother's home. So she will be up early so that she can be there to catch the bus at 7.55am and then she will be back home at 4.15pm travelling again on the bus for three-quarters of an hour.
She will have the change in her living arrangements, spending more time with her father and his family, and she will change from going to kindergarten to school, which is a big change in itself. She will change from walking to and from kindergarten to having to do the travel initially for the majority of the time she is at school and then after six months for half the time.
An element in that change is that her daily routine will not simply be being in a different home on different occasions but it will change from one where she is close to school to one where she has to travel by bus so that her getting up in the morning time will be, say, three-quarters of an hour earlier at a minimum, perhaps even more, and her getting home from school will be three-quarters of an hour later.
The other element in the likely effect of the change is that Mr Gilkes' living arrangements will have changed. He will have moved to [W].
[E] will have moved schools. He will have the additional amount of travel that he has to undertake. He describes the move as a sacrifice, and I think it is fair to assume that Ms G sees it the same way even though she filed an affidavit in which she supports entirely what Mr Gilkes is proposing. I have already said that it is clear from the evidence that [B] has a very good relationship with Ms G and Ms G is a significant person in her life. At the moment that is a stable and content family.
It is impossible to say to what extent there is a risk but there has to be a risk that when Mr Gilkes' family makes the sacrifice, as he describes it, to move that the equanimity and happiness in the family might be affected to some extent. The relevance is that it could have an effect on [B] when living in that home if the current happy atmosphere in that home changes in any way.
The other element in Mr Gilkes' proposal to move is that the arrangements depend on Mr Gilkes maintaining his current employment or employment which is very similar. Given his evidence that having to maintain those arrangements limits his employment opportunities, balanced against that his belief that he may be able to obtain other employment, again there has to be a risk that he may change employment.
There is no doubt that he will be able to obtain similarly well‑remunerated employment but it may not have the flexibility. It also limits his opportunity to obtain other employment, for instance, if he had the opportunity to change to employment with a substantially increased remuneration and better conditions and perhaps a more interesting and rewarding type of work. If it required him to work full‑time in the city of Melbourne, he would either have to reject the opportunity or move away from [W]. If he moves away from [W] the proposal he puts cannot continue to work.
There is a possibility that [B]'s mother's circumstances might change as well but there is, I consider, a real possibility, which has to be taken into account, that Mr Gilkes' circumstances might change. Then [B] might have moved to the [S] School and the changed living arrangements and then might have to move away from the [S] School because she would not have her father's home close by [S] School. It may be impractical for that reason. The likely effect of change in these circumstances is significant in this case.
Next there is the capacity of each of the parents to provide for the needs of the child. Each has shown a capacity to provide for her physical needs. Ms Slattery raises the issue about the relationship between the two parents so far as providing for their emotional needs, but that is not something which goes either way in this case. Each shows a proper attitude to the child and the responsibilities of parenthood.
The schooling issue is not a stand-alone issue in this case. It is inextricably bound up with the other issues. The principal case on children's schooling is Re G (Children's Schooling) 2000 FamCA 462.
A decision of the Full Court of the Family Court. Best interests of the child is the primary consideration. In that case travel was an issue and the Full Court, having considered various other matters, said
In addition, we think there is considerable substance to arguments on [the wife's] 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 ... we see advantages to the children attending a school which is closer to the children’s residence. In terms of the practical fulfilment of parenting obligations, it is desirable to enhance the ease with which a parent who assumes the bulk of day to day responsibility can meet the multiple associated demands of children.
I consider that the reasonable practicality considerations, that is, the section 65DAA (5) considerations, allied with the best interest considerations that I have described lead to the conclusion that it is not in [B]'s best interests and not reasonably practicable for there to be an equal-time arrangement, that is, a week and week-about arrangement.
That leaves the matter to be assessed in terms of the mother's proposed five/nine night arrangement. That is dependent on which school [B] will attend. I have to bear in mind that if [B] is attending [Y] School she will not be spending five nights a fortnight with her father, she will only be spending alternate weekends.
It is put by Ms Mandelert for the independent children's lawyer that the father could make arrangements to get [B] to school but his evidence is clear and I accept what he says, that he cannot make those arrangements. The reasons he gives which are bound up with his employment, are quite logical and sensible. I also repeat what I said in argument that I accept that he is quite genuine in proposing the overall arrangement which includes the change of school and quite genuine in saying that the change of school is essential to his arrangement. It is not a petulant argument or an attempt to gain some sort of technical advantage by requiring a change of school if what is otherwise seen as being in [B]'s best interests is to be implemented.
Significant in this case, I think, are the matters I have described under the likely effect of change. That is how it might affect [B] if for eight days out of 10 school days in a fortnight she will be living in [Y] and travelling to school in [W]. Allied with the other matters I have put I have to bear in mind that there is some risk or a possibility, a chance, whichever way it is described, that Mr Gilkes might not be able to maintain those arrangements for perfectly valid reasons to do with his employment or change of employment. I have to bear in mind what I have said about the possible change in circumstances in Mr Gilkes and Ms G' living arrangements. If any happen they will have an adverse effect on [B]'s circumstances, which will affect her relationship with each of her parents.
The benefits to [B] of being close to school and walking to school do not need to be elaborated. In this case there is the additional benefit that it is a routine which she is currently used to, living close to where her daily activities are. She will be attending the school, starting in grade prep with a number of children she knows because they will come from her kindergarten. There was some debate about how many children from [S] School would be on the same bus. I do not see that that debate helps.
These considerations outweigh the benefit of [B] spending additional time with the father and mean [B]'s best interests are served by going to the [Y] School.
I had some discussion with Ms Mandelert for the independent children's lawyer about whether this means that the only orders I could make were for alternate weekends, because that is what is going to happen given the father’s position. But the five-nine arrangement is proposed by
Ms Lenton, by [B]'s mother, and it is the recommendation. I will leave it open, which would mean that I will make orders as proposed by the mother in this case.

I certify that the preceding sixty eight (68) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: Jan Smith

Date: 23 July 2008