Glover and Glover
[2009] FamCA 276
•9 April 2009
FAMILY COURT OF AUSTRALIA
| GLOVER & GLOVER | [2009] FamCA 276 |
| FAMILY LAW – CHILDREN – time with father – school child to attend from 2010 |
| Family Law Act 1975 (Cth) |
Korban & Korban [2008] FamCA 292
Jann v Yann (1976) FLC 90-027
Foster v Foster (1977) FLC 90-281
H v H-K (1990) 13 Fam LR 786
Padgen v Padgen (1991) FLC 92-231
Forck v Thomas (1993) 16 Fam LR 516
F v B [2000] FamCA 676;
M v M, unreported 13 December 2001 per Le Poer Trench J
M v G, unreported 15 July 2003 per Kay J
H v H (2003) FMCAfam 41
| APPLICANT: | Ms Glover |
| RESPONDENT: | Mr Glover |
| FILE NUMBER: | SYC | 6153 | of | 2007 |
| DATE DELIVERED: | 9 April 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Moore J |
| HEARING DATE: | 10 September 2008 & 17 February 2009 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Ms Young, Stacks Family Law |
| THE RESPONDENT: | In person |
Orders
The parents are to have equal shared parental responsibility for the children A born … July 1991; E born … January, 1994; D born … September 1995 and J born … June 2004.
The children are to live with their mother at all times it is not specified by these orders they are to be living with their father.
The children are to live with their father as follows:
(I)A and E and D as agreed between their parents in accordance with their wishes;
(II)J at these times if his father is living in Sydney:
(a)from the date of these orders until the commencement of the 2010 school year
(i)during school terms in week 1 from after preschool Thursday until before preschool Friday and in week 2 from after preschool Thursday until before preschool Monday or Tuesday if Monday is a public holiday;
(ii)during school holidays for one half of the school holidays following terms 1, 2 and 3, to be for the second half of the holidays unless otherwise agreed;
(iii)for one half of the Christmas 2009/10 school holidays as agreed and failing agreement for periods not exceeding two weeks to alternate provided the child is with his mother during the period that includes Christmas morning 2009;
(iv)for Father’s Day from 5pm the day before until Monday before preschool if that is not a weekend he is in his father’s care pursuant to these orders, provided these orders are suspended to enable the child to be in his mother’s care on Mother’s Day from 5pm the day before if that is a weekend he would otherwise be in this father’s care pursuant to these orders;
(v)the child’s birthday at such time as may be agreed but failing agreement to be celebrated with the parent with whom the child is living on that day.
(b)from the commencement of the 2010 school year:
(i)during school terms in week 1 from after school Thursday until before school Friday and in week 2 from after school Thursday until before school Monday or Tuesday if Monday is a public holiday;
(ii)during school holidays for one half of all school holidays to be for the first half in even numbered years and the second half in odd numbered years;
(iv)for Father’s Day from 5pm the day before until Monday before preschool if that is not a weekend he is in his father’s care pursuant to these orders, provided these orders are suspended to enable the child to be in his mother’s care on Mother’s Day from 5pm the day before if that is a weekend he would otherwise be in this father’s care pursuant to these orders;
(v)the child’s birthday at such time as may be agreed but failing agreement to be celebrated with the parent with whom the child is living on that day.
(III) J at these times if his father is not living in Sydney
(a) at times agreed between the parents but not less than:
(i)one half of the school holidays following the end of term 1;
(ii)ten days of the school holidays following the end of terms 2 and 3;
(iii)four weeks of the school holidays following the end of term 4 provided if that applies to the 2009/2010 year the period is taken in 2X2 week block periods and provided further that the period the child is with his mother includes Christmas morning 2009;
Unless otherwise agreed, J’s care is to be changed over at his preschool or school whichever applies whenever the orders specify that venue to be the start or end of his time with his father and otherwise his care is to be changed over at his mother’s residence.
Notwithstanding any order about J’s time with his father and subject to any agreement between the parents to the contrary, if his father is to be absent for more than two nights when J is scheduled to be in his care then J is to be returned to his mother by the father’s nominee before the third night of absence and if his father returns before the end of the scheduled period J can be collected by his father when he returns.
Each parent is to notify the other as soon as reasonably practicable of:
(i)any illness or injury suffered by any of the children which requires medical treatment of any kind;
(ii)any change to his or her residential address or telephone number.
The mother is to be at liberty to enrol the child J to attend a primary school of her choosing.
IT IS NOTED that publication of this judgment under the pseudonym Glover & Glover is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 6153 of 2007
| MS GLOVER |
Applicant
And
| MR GLOVER |
Respondent
REASONS FOR JUDGMENT
[For ease of editing for anonymity the parties will be referred to at times as mother/wife or father/husband]
Proceedings
The parties are the parents of four children: A (17) born in July 1991; E (15) born in January 1994; D (13) born in September 1995; and J (4¾) born in June 2004.
Since their parents’ separation there have been no court orders in place about their arrangements. They have lived with their mother and have spent time with their father individually or together as arranged, J’s time occurring regularly.
It is common ground the parents will retain equal shared parental responsibility, the three older children will continue to live with their mother and see their father as arranged, and J will spend time between each of his parents. The decision they ask the Court to make is the apportionment of his time and related to that are other unresolved issues, more particularly where he will attend school from next year. Their positions will be noted shortly.
A decision is also required about settlement of their property but that has had to be deferred until they can satisfactorily address problematic questions related to the husband’s DFRDB pension entitlement which need not be elaborated here.
Evidence
The issues are narrow and the evidence not extensive. Their own evidence is supplemented by evidence from the father’s current wife, Ms G, and there is evidence related to the property component from an accountant, Ms B, which can be put to one side for now.
Background
The father (46) and the mother (44) married in December 1985. They separated in April 2007 and were divorced in September 2008.
The father lives at Zwith his wife who has a child, N (5). N attends school in T. Her father lives nearby and by informal agreement between her parents her father takes her to school each morning and collects her from school two afternoons a week and she spends more time with him during school holidays.
The mother has not re-partnered. She lives in rented premises at C. A completed her secondary schooling in 2008 and she now attends university in Canberra. The other girls attend M School where they have been enrolled since the beginning of the 2002 school year. E is now on a full scholarship to complete her secondary education there and D has recently had a half bursary extended to the end of 2009. J attends a preschool nearby and he will begin his primary schooling next year.
Their present proposals have as background a work and family responsibility history that requires some elaboration, albeit via a general summary:
· In 1981 the father enlisted in the Australian military and he became an officer in 1984. His career in the military thereafter saw him serve in a succession of positions, achieve promotions in rank, and take up postings in various places including overseas. There were times he was required to travel away from home, either in Australia or overseas, and he was constantly on call. In August 2003, at a time when the family had been living back in Sydney, he took accumulated leave entitlements and accepted a position as operations manager for a company, which involved him in some interstate travel. In early 2005 he retired from the military and retained that employment, spending part of his week in Canberra. Then in July 2007 he took a position with another firm, which required interstate and overseas travel, but he was retrenched in January 2009 and he has not yet been able to re-position himself back in the workforce during these past few months. He has been concentrating his efforts to find work in Sydney for obvious reasons, but he says he will look beyond that and move elsewhere if he has to in order to get work. He has not yet come to that point but it is a possibility he does not exclude.
· Just prior to their marriage the wife abandoned study in physiotherapy and took up study in nursing, graduating in 1987. Her career in that field took many turns as she followed her husband’s postings and over the years her work either part time or full time was punctuated by the birth of their four children and child care responsibilities. She upgraded her qualifications with further study some years ago. She was successfully treated for bowel cancer diagnosed at the end of 2002 and she later returned to part time work as a nurse. She currently works three days a week with some regular but periodic work one day of a weekend.
Proposals
The father’s proposal about J’s time relates first to 2009 and then to 2010 and beyond. For the remainder of 2009 J’s arrangements coincidental with school terms would be as set out in the schedule below – J would be with him overnight on Tuesdays and Sundays in week 1 and Thursdays in week 2 - and changeover would occur at his pre-school at M:
Week 1 Mon Tues Wed Thur Fri Sat Sun Father Father Mother Mother Father Father Father Week 2 Mon Tues Wed Thur Fri Sat Sun Mother Mother Father Father Mother Mother Mother
In other words, his time would be spent equally between his parents but it would be broken up as indicated. From 2010 and beyond the father proposes equal time, week about, with changeover to occur after school on Wednesdays. There would also be equal time during school holidays as agreed but failing agreement alternated between the first and second half in odd and even numbered years. This would be supplemented by specific arrangements for special occasions such as J’s birthday, Father’s Day and Mother’s Day [to be spent with the relevant parent from the afternoon of the day before until the commencement of school on Monday] and Christmas Day would be either agreed or alternated between the parents each year. He also proposes a suite of orders related to various parental responsibilities, such as attendance at activities and notification about illness, medical treatment, and changes to residential address and contact details.
As for school choice, he would prefer J to attend the same school his step-daughter at T but he recognises this is impracticable and therefore proposes enrolment at a school about halfway between his residence at Z and the mother’s at C.
Of course he hopes he will succeed in his quest to find work in Sydney but if he has to move he acknowledges his time with J will be curtailed necessarily and limited to time during school holidays with perhaps a weekend visit during school terms depending on his whereabouts and circumstances.
There is no Minute of Order provided by the mother but she put her position in discussion about her views. She opposes the equal time proposal. On her proposal during school terms J would go to his father every Thursday afternoon: in week 1 he would be returned to preschool/school Friday morning [his father taking responsibility until the end of the school day] and in week 2 he would be returned Monday morning or Tuesday morning if Monday is a public holiday [his father again taking responsibility until the end of the school day]. This translates to 5 nights a fortnight during school terms. There is no issue about him spending half of the school holidays with his father subject to the long period at the end of the year being broken up into shorter periods until J is older. If the father moves from Sydney, she has no objection to J spending the majority of his time with his father during the end of terms 2 and 3, to being in his father’s care for 4 weeks during the Christmas period, with equal time during the holidays at the end of term 1.
As for choice of school, she proposes J attend the C School which is proximate to her residence and near the school two of his sisters attend.
Best interests
The decisions required are to be consistent with J’s best interests and they must be evaluated so far as the evidence allows according to the primary and additional considerations set out in s 60CC of the Family Law Act 1975. Those considerations are spanned by objects and underlying principles set out in s 60B of the Act. The objects are about ensuring children’s best interests are met by ensuring they have the benefit of both parents having a meaningful involvement in their lives to the extent that is consistent with their best interests, by protecting children from exposure to physical or psychological harm, by ensuring they receive adequate and proper parenting to help them achieve their potential, and by ensuring parents fulfil their duties and meet their responsibilities to their children’s care, welfare and development [s 60B(1)]. The underlying principles, except when it would be contrary to the child’s best interests, acknowledge the child’s right to know and be cared for by both parents, a right to spend time on a regular basis and communicate regularly with both parents and significant others, a right to enjoy their culture, and that parents jointly share parental duties and responsibilities and should agree about future parenting [s 60B(2)].
This is not a case where the child’s relationships or the parents’ attitudes to their responsibilities or their capacity to meet their son’s needs - or any other specified considerations – has been the subject of scrutiny and report by an expert qualified to give such opinions. That has not been sought and nor do the circumstances require it. Those evaluations are to be made on the evidence of the parents which they elaborated in submissions during the course of the hearing.
primary considerations
the benefit to the child of a meaningful relationship with both parents
protection from physical or psychological harm from abuse, neglect or violence
It can be confidently said that the well-being of children necessitates a meaningful relationship with each parent. In the more usual run of circumstances, it is generally accepted that children who are able to sustain satisfactory relationships with both parents are less likely to experience emotional or psychological difficulties or difficulties in their own relationships and attachments in the future and of course spending time together in a variety of circumstances is an important component in the development of any relationship. The level of benefit a child derives from it obviously will be a function of many things, not the least being the capacity of the parent to deliver an acceptable standard of care and to meet at least to an adequate standard the child’s many other needs. Naturally inherent in all of that is the proposition that the relationship does not expose the child to harm, which is the subject of the second consideration.
In this case there is nothing to indicate J does not presently have a meaningful relationship with each of his parents and nothing to suggest he does not benefit as a result. Since his relationships with his parents are his primary relationships, those relationships will be supported by either proposal; the difference is about apportionment. Protection from harm generated by exposure to abuse, neglect or violence is of no relevance to this child.
additional considerations
child’s views
This is not relevant for obvious reasons.
nature of child’s relationships
It can be taken that J is attached to both of his parents and that he has a close and loving relationship with each of them.
Nonetheless it is recognised that his mother has been his primary carer since birth and, while the balance may very well tip in the other direction as time goes on, at this young age and stage of his development that probably means his attachment to her is a bit more pronounced. It is not as if he could be seen as entirely robust since he had some difficulty separating from his mother at pre-school and this led to consultation with a psychologist who suggested some strategies to address it. Hopefully this will lead him to settle more readily in time, if it has not already, but it does serve as a reminder of his relatively tender age and of the plain fact that there have been some significant upheavals in the environment around him over the past couple of years.
There is no reason to think he does not have a close and loving relationship with each of his three sisters. With A now in Canberra obviously he will see her less and that development is probably requiring some adjustment on his part.
According to Ms G, her relationship with the father began in September 2007. While that is only a relatively short period of about 18 months or so, it seems that satisfactory relationships have been built up in that time between J and his step-mother and step-sister. It is said these relationships are close and there is no reason to doubt it. Not surprisingly, J has been curious about where everybody fits in the family and it can be taken that this has been discussed with him appropriately and sensitively. Of course it can be expected that his relationship with his step-sister will develop further in time although at this stage his attachment to her could not be interpreted as having the same quality as his attachment to his sisters.
willingness and ability to facilitate, and encourage child’s relationship with other parent
attitude to the child and to the responsibilities of parenthood
capacity to provide for the child’s needs, including emotional and intellectual needs
extent parents have fulfilled or failed to fulfil parental responsibilities by participating in decision making, spending time and communicating with the child and by maintaining the child
There is nothing in the evidence to support a finding that there are any relevant shortcomings in the willingness or ability of either parent to facilitate and encourage their son’s relationship with the other. Nor is there anything on which to base a finding that one or other does not have a proper attitude towards their parental responsibilities or that there is some deficiency worthy of note in their capacity to meet their son’s needs.
If there were more information to put under the microscope, closer assessment may reveal calibrations in quality or a ranking of strengths in all these areas, but these considerations can be taken to be satisfactorily met for the purpose of evaluating their son’s interests. That is inherent in any event in the proposals they each put forwards about J’s time, despite the gaps in detail, which would make meaningful criticism in any of these areas difficult to sustain.
Having said that, it is noteworthy that while there appears to be adherence to a certain level of courtesy, at least in the courtroom setting, there is a discernibly angry, combative, edge to their exchanges which plainly inhibits their ability to communicate readily or effectively. There is no sense that they could communicate about day to day issues that arise, more particularly for present purposes about things affecting J, in a way that would not be (variously) terse, accusatory in tone, defensive, dismissive, or provoke anxiety or anger in some way.
It is highly likely that this unresolved state of unsatisfactory communication generates an uncomfortable even anxious atmosphere for the children, perhaps more so for a young child of J’s age, and the shift necessary to see the children are not burdened by it is nowhere apparent yet.
the likely effect of any changes in the child’s circumstances
Both parents are seeking more formal and settled arrangements to be put in place for J’s time and naturally the likely effect on him of any change will depend on the extent of the change. The difference in the proposals about his time relates fundamentally to school terms which in turn relates only to some 40 weeks or so of the year; therefore on one view the difference is not vast. But it is not a mathematical exercise - counting up the days or nights to be spent in one place or the other over any given period is only a part of the picture. It is the child who is doing the moving back and forward between houses, not either parent; therefore time proposals have to be evaluated from a wider perspective than numbers and have to take into account what is involved for the child.
any practical difficulty and expense of spending time and communicating and any substantial affect on the child’s right to maintain relations and regular contact
The circumstances require consideration of two scenarios: the first is if the father remains living in Sydney; the other is if he moves to live elsewhere.
If he remains living in Sydney and he remains living in or around Z in the eastern suburbs there will be some inherent practical difficulty, mostly arising from his proposal, by reason of where both parents have chosen to live. One difficult is distance/time – to get from the father’s residence to the mother’s depends on traffic obviously but it is said to be about 15 minutes on a good run or half an hour in traffic – but there is more to it than that. The full picture of practical difficulties could only be assessed with any real confidence once it is known what the father’s work commitments will be and what that will require of his time and availability and the direction his travel to work will take him each day. Obviously the closer J’s school is to his home the fewer the practical difficulties in getting him to school in the morning and collecting him in the afternoon on the days he is with his father, but the magnitude, small or large, cannot presently be known.
If he moves away from Sydney the location will have a bearing on practical difficulties and expense; for example, obviously a move to Perth as opposed to Canberra would represent different possibilities for his time with J. That is a contingency that can only be foreseen here in a general way.
the child’s maturity, sex, lifestyle and background
Not yet five years of age, there is nothing about this child’s background or family lifestyle that calls for consideration.
any family violence
any family violence order
This is not relevant
whether preferable to make the order least likely to lead to further proceedings
I could not say whether there will be further proceedings in the future, but there is nothing about the current circumstances or the orders the Court is asked to make now to render this relevant.
Parental responsibility & time
It is agreed there is to be equal shared parental responsibility, which is about decision making and not the time a child spends with a parent. As the orders are to provide accordingly, there is an obligation to consider whether it would be in the best interests of the child to spend equal time with each parent and whether that would be ‘reasonably practicable’ and if it is to make that order [s 65DAA(1)]. If that is not the result, there is an obligation to consider whether it would be in the best interests of the child to spend ‘substantial and significant’ time with each parent and whether that would be ‘reasonably practicable’ [s 65DAA(2)].
The factors to be taken into account in determining what is ‘reasonably practicable’ are the distance between the parents’ residences, their capacity to implement an equal time arrangement, their capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind, the impact such an arrangement would have on the child and such other matters the court considers relevant [s65DAA(5)]. ‘Substantial and significant time’ requires that the child spend days that fall on weekends and holidays and those that do not and also allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child and also allows the child to be involved in occasions and events of special significance to the parent [s65DAA(3)].
Time
There must first be considered whether equal time is consistent with the child’s best interests.
Before the Act was amended to impose this obligation, there were a series of cases decided at single instance and at appellate level where consideration was given to an equal time arrangement. I have summarised the discussions in those cases elsewhere [Korban & Korban [2008] FamCA 292] and I drew this from those cases:
‘These decisions do suggest that some careful deliberation is necessary in considering an arrangement whereby children spend their time moving between the households of their separated parents in equal or approximately equal proportions of their time. They also suggest that to be workable and of benefit to the child, desirable environmental factors include compatible parenting values; mutual respect as parents; good parental communication, trust and cooperation; an ability to compromise; geographic proximity between their residences; the age of the child has to be considered and the ability of the child to cope with the arrangement without stress or confusion needs to be taken into account; concrete issues related to upbringing such as manner of education and the like ideally would have been resolved; and there are no destabilising influences such as might be present when one or both parents re-partner. Without these factors, the arrangement may contain the seeds of harm from inconsistencies in influence, activities and life values, all of which have the potential to disorient and destabilise children. The purpose of any arrangement, after all, is to promote their welfare overall and not to satisfy the needs of their parents.
Obviously these considerations or something similar are not a checklist requiring 100% or even a preponderance of positive scores before equal time could be seen as aligning with a child’s best interests. Where they are found to exist, it will also be questions of degree which might range from relatively benign to plainly damaging. As I see it, they all seem to be based on the fundamental premise that whatever household a child grows up in or whatever households the child moves between throughout their developing years, a sense of continuity and commonality is a desirable thing for a child and likely to promote the child’s best interests. So absent guidelines about it, I see it as appropriate to ask questions of this kind in discharging the obligation to ‘consider’ an equal time arrangement or in assessing a proposal directed to that end. Obviously findings that parenting values are not particularly compatible, trust and cooperation are not present, there is uncertainty about how a child will cope, and there are destabilising influences of one kind or another, do not mean that equal time could not be in the child’s best interests on the particular facts of the case; but it stands to reason a bundle of assessments along these lines, or even the marked presence of one or more of them, would render it difficult to align such an outcome with the child’s best interests.’
The cases I considered were Jann v Yann (1976) FLC 90-027 at 75,120; Foster v Foster (1977) FLC 90-281 at 76,511; H v H-K (1990) 13 Fam LR 786; Padgen v Padgen (1991) FLC 92-231; Forck v Thomas (1993) 16 Fam LR 516; unreported decision of the Full Court (15 April 1997) in C v B; F v B [2000] FamCA 676; M v M, unreported 13 December 2001 per Le Poer Trench J; M v G, unreported 15 July 2003 per Kay J, and H v H (2003) FMCA Fam 41. What the amendments introduced 1 July 2006 require is consideration to be given to equal time in the event of equal shared parental responsibility; they do not require equal time as an outcome. The determinant of the child’s arrangements was before the amendments, and remains, the child’s best interests in all the circumstances and in my view the above discussion remains apposite to the Act as it now stands.
The choice of residence made by the parents here may not represent in any substantial way an impediment to equal time but it is difficult to be confident about that without knowing the father’s future work commitments and what that will mean for his time, availability, travel obligations, place of work even if he does remain living in Sydney.
Certainly the parents can be seen as loving parents who wish to have a significant and involved role in their son’s upbringing and that is underscored by the close relationships in place. There may be differences in fact but there are no discernible or marked differences apparent in their general approach to J’s upbringing or to the manner in which he is to be educated. On the major issues or about the major decisions that have to be taken in the course of a child’s upbringing, therefore, it is unlikely there will be destabilising influences. Since both parents obviously have a great deal to offer in different ways, it can be expected their son would benefit from the time he spends with each of them. All of this can be taken as indicative of equal time equating with his best interests.
But there are some complicating factors. A significant one is the tenor of the parents’ communication which does not have those elements of trust and cooperation which are so important to the way in which the myriad of day to day issues that can arise for a child living between households are approached, discussed and resolved. As it presently stands, it is highly likely that those issues, whether trivial or significant, would be occasion for unpleasant exchange, peremptory dismissal, reluctance to engage in dialogue and so on. Without trust and cooperation, the child almost inevitably will be the one left to deal with it and negotiate his way through it as best he can.
To that scenario can be added the young age of this child and the uncertainty there must be about how he would cope with the change his father proposes. He has had some behavioural difficulties in the past which suggests some underlying fragility and that in turn suggests he may be better off with more continuity of routine in the organisation of his time rather than splitting his time between two sets of ‘rules’ and two different surroundings.
Those considerations have led to the view ultimately that equal time would not be consistent with his best interests, at least so far as they could be predicted at this age and stage of his development. The father’s proposal therefore will not be adopted.
There then arises the obligation to consider substantial and significant time as it is defined by the Act. The mother’s proposal does fit that requirement and it is my assessment that would be the arrangement best suited to J’s interests. That is less time with his father than his father would like, but it is still significant time and there will be equal time for part of the year during school holidays. It is an arrangement that achieves the balance that is necessary between his young age, his need for stability, his need for a meaningful relationship with both parents and their input into his upbringing, his relationships with others in each household, and the apparent inability of his parents to communicate about day to day issues in a way that would not adversely affect their son. It is an arrangement that satisfies the primary considerations and is consistent otherwise with the objects of the Act and the underlying principles.
It remains to say so far as his time is concerned, that if his father moves from Sydney it will be necessary for the parents to come to an arrangement about his time with his father. The only practical approach to be taken now is to express the orders broadly and provide for time during school holidays. Other time will obviously depend on proximity and other factors and no doubt be supplemented by other contact such as by telephone, webcam and so on could be introduced.
School
The school issue is readily resolved. He should be enrolled at and attend a school proximate to his mother’s residence because there are potential problems in his attendance at a school outside that area, whether or not it is half way between his parents’ residences.
First, there is no saying at this stage that his father will not be moving from Sydney and there is no point in the face of that uncertainty to enrolling J to attend a school away from his mother’s residence. Secondly, in the normal course a child’s school is a source of friends and shared activities, in and out of the school environment. The friends they draw from school will have sleepovers and birthday parties and play dates after school and at weekends and they will join the extra-curricular activities on offer in the community as that relates to sport or music or something else. Undoubtedly all that would apply to J. I do not see it in his interests to be virtually marooned from participating in that ‘out of school’ life with the friends he makes at school because his school is located outside the community where he mainly lives. If he were older and attending secondary school that may be different, but at this stage his school environment provides some of his developmental needs and that should be accessible in the community where he lives rather than located in some other community. Very likely these are the very considerations brought to bear in having N attend a school proximate to her parents’ residences.
It is acknowledged that this decision will impose some practical difficulties on the father in getting J to and from school, which may be exacerbated depending on his work commitments in due course. It is also acknowledged that the options available to his father to alleviate any such burden are relatively limited given N’s schooling and arrangements with her father who lives in the same area he and his wife now live. It is not ideal, but J’s interests have to prevail.
An order will be made accordingly.
Other orders
Mention should be made of a couple of other matters raised at the hearing. The mother wishes to have the time J is with his father expressed to conclude not on the morning he is taken to preschool/school but at the end of the school day. That is about the father being the parent responsible for any issue that develops in the course of that day rather than the mother being the one who leaves work to deal with it. Her point of view is not without merit but Court orders will not be made about it. It is for the parents to arrange with the school which parent is to be contacted if the need arises, ranked in priority if they see that as necessary, and the school should be free to contact a parent as they see fit without getting caught up in Court ordered arrangements.
There is also a question about J’s return to his mother if his father is required to travel out of Sydney for any period by reason of future work commitments. This has two sides to it, both understandable, and so a balance has to be struck. That can be met by J going to or remaining in his father’s home in the care of his step-mother if his father is away longer than two nights but for any longer period he should be returned to his mother’s care – subject, as always, to agreement by the parents to the contrary.
As for the special occasions, the father’s proposed orders sets out arrangements in some detail, most of which can be adopted in that form. Of course the parents are always free to agree about some arrangements contrary to the detail reflected in the orders.
Making provision by Court order for notification of illness or injury or change of address strikes me as superfluous since they are only what any responsible parent would do, but they can be made since they are proposed and are uncontroversial. As for entitlement to attend activities that is unnecessary since they have equal shared parental responsibility. As for orders imposing obligations about taking the children to their activities, this can be fertile ground for further dispute and will not be made. It will be up to the parents to agree what activities they will support before J is enrolled in any activity and naturally in that event it can be expected they would each do what is necessary to see that he participates when in their care.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore
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