Howell and Garson

[2016] FCCA 2635

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOWELL & GARSON [2016] FCCA 2635

Catchwords:
FAMILY LAW – Parenting dispute regarding change of private schools – whether change of schools is in the best interests of the child. 

Legislation:

Family Law Act 1975 (Cth), ss.60CC(3)(b), (d) and (m)

Applicant: MR HOWELL

Respondent: MS GARSON

File Number: SYC 4888 of 2009

Judgment of: Judge McNab

Hearing date: 7 September 2016

Date of Last Submission: 7 September 2016

Delivered at: Melbourne

Delivered on: 7 October 2016

REPRESENTATION

Counsel for the Applicant: Mr R Hoult

Solicitors for the Applicant: Kenna Teasdale Lawyers

Counsel for the Respondent: Ms H Dellidis

Solicitors for the Respondent: Nicholes Family Lawyers

ORDERS

UPON JUDGMENT DELIVERED THIS DAY, THE COURT ORDERS THAT:

1. Order 17 of the Orders made 10 November 2011 be discharged and in lieu thereof each party forthwith do all such acts and things necessary to enrol X (“X”) born (omitted) 2006 at (omitted) School and facilitate her attendance at that school from the commencement of Term 1 in 2017.

2. Paragraph 5 of the Orders made 10 November 2011 be varied so that X lives equally with both parties on a week about basis with changeover to occur at the conclusion of school Monday or at the conclusion of school the next school day in the event that Monday is a non-school day, with such week about arrangement to continue throughout the year including the first and second school term holidays, with changeover to occur at 5pm Monday if it occurs during a school term holiday period.

3. Order 7 of the Orders made 10 November 2011 be varied to apply to the Term 3 and Term 4 long summer school holidays, subject to Order 4 and 5 herein.

4. For the Term 3 school holidays each year, unless otherwise agreed between the parties in writing:

   (a)X live with the Father for the first half in 2017 and each alternate year thereafter; and

   (b)X live with the Mother for the second half in 2017 and each alternate year thereafter,

   (c)with the week-about living arrangements to resume thereafter as if the holidays had not occurred.

5. The Term 4 long summer holidays each year be quarantined from the week about arrangements such that X live with the parties as follows:

   (a)In accordance with paragraph 5 of the orders of 10 November 2011 (as varied herein) until 12 noon on Christmas Eve and thereafter the remainder of the summer school holiday period up and until the day X attends school be shared equally with:

   (b)The mother to have the first half in even numbered years; and

   (c)The father to have the first half in odd numbered years.

   (d)In the event that there is an odd number of nights in the summer school holiday period the parent who has the first half of the holidays shall have the extra night.

   (e)The week about living arrangements shall resume on first day of school as if the summer school holidays had not occurred (noting that such commencement date may fall at any day in the Monday to Monday week).

6. If the Father is unavailable to care for X for a period of two or more nights, the Father shall provide first option to the Mother to care for X during such period.

7. If the Mother and her Husband, Mr R, are unavailable to care for X for a period of two or more nights, the Mother shall provide first option to the Father to care for X during such period.

8. Both parties must ensure X attends at all school camps, excursions or other school events that coincide with X being in their care.

9. Save as provided for in these Orders, the balance of the Orders made 10 November 2011 including Orders 9 and 10 for Christmas continue in full force and effect.

10. The Orders made 1 May 2012 continue in full force and effect.

11. All extant applications be otherwise dismissed.

AND THE COURT NOTES THAT:

A.The parties agree that the parent who has X in their care for the first half of the Term 3 holidays shall have the option, upon 42 days’ written notice to the other, to have X in their care for the entirety of the Term 3 holidays, with the week-about arrangements to resume thereafter as if the holidays had not occurred.

B.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 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 Howell & Garson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

SYC 4888 of 2009

MR HOWELL

Applicant

And

MS GARSON

Respondent

REASONS FOR JUDGMENT

(Revised from the transcript)

1. This matter concerns competing orders sought in relation to the parenting arrangements for X born on (omitted) 2006 (“X”). The matter has a considerable history which I will refer to only where it is directly relevant to the matters that I must decide. 

2. By an application filed on 14 August 2015, the father sought orders varying orders that had been made previously by the Court on 10 November 2011. I will not set out in detail the chronology of the matter, because it is accurately recorded in the case outlines filed by the parties. If it becomes necessary, I will do so if further reasons are sought. In the interest of economy of expression and time, I will not refer to them in detail now. The respective proposals put by the father and the mother following the hearing are attached hereto and marked “A” and “B” respectively. Outlines of case were filed by each of the parties. I have had regard to those outlines.

3. By reason of the orders made 10 November 2011 (“November 2011 orders”) the parents spend equal time with X week about. The majority of the evidence in this matter was concerned with the schooling arrangements of X. In response to the application made by the father, the mother, by her response, sought orders that paragraph 17 of the orders made on 10 November 2011 be discharged and that she do all things necessary to enrol X at (omitted) School (“(omitted) School”) so that she could commence year 6 there for term 1 in 2017.

4. In 2012, the mother had previously sought to make arrangements for X to be enrolled at a school local to where she lives in (omitted). The Court made orders on 7 February 2012, inter alia, that the parties complete the offer of enrolment at (omitted) School (“(omitted)”) and do all things necessary to seek her enrolment at (omitted) School and that neither party contact (omitted) School to advise or request that she not be accepted at that school. There were orders in relation to payment of fees to give effect to that order. There was no adjudication on the merits of the matter at that time.

5. I am advised by the parties that the mother is responsible for the payment of the private school fees as part of a property settlement between the parties. The father opposes the orders sought by the mother and wishes, to quote counsel for the father, “to hold her to the orders made in 2011”. 

6. There are a number of reasons put forward for the wife’s proposal regarding the change of schools. The wife commenced a relationship with Mr R (“Mr R”) in (omitted) 2009 and they married on (omitted) 2013. There is one child of that relationship, Z born (omitted) 2012 (“Z”). They live together with Mr R’s son Mr J, who is aged 21, in (omitted). (omitted) is on the (omitted) side of the city, (omitted) School is about five minutes’ drive.  

7. Z will be attending (omitted) School in year prep from term 1 in 2017.  There is no dispute that the choice of (omitted) School as a school for X was not based on any emotional or familial connection with that school.  Other schools were raised in 2011 as an option when schools were being nominated including (omitted) School. 

8. The mother has filed detailed affidavit material in relation to the difficulties that she and Mr R have in transporting X to and from (omitted), which is on the (omitted) side of the city, to (omitted) (in the (omitted)) in peak hours of the day. The mother works full time in a senior position with her employer who is based at (omitted). She has some flexibility in her role but is subject to the ordinary constraints on a senior employee who is required to fulfil her role whilst being a parent.  Mr R is employed as a (occupation omitted) and is required to travel frequently and this affects his ability to transport X to school. His affidavit evidence in relation to his role and its impact on his ability to assist was unchallenged.  

9. The father lives in (omitted). He has re-partnered with Ms H, who lives in Sydney, and she has three children, aged between 12 and seven from a previous relationship.  He has assistance from his parents in relation to the transporting and care of X. He is self-employed and has a degree of flexibility in relation to the times of his work but I recognise that he must also run his business and is therefore affected by where X goes to school.

10. The mother has given evidence of the difficulties associated with transporting X from (omitted) to (omitted) in conjunction with dropping off Z at day care. She deposes that it can easily take one hour and 30 minutes to travel to the school in (omitted). The applicant produced a travel log which was not the subject of any substantial dispute.[1] That log establishes the mother’s claims of substantial travel time. When X is involved in afterschool activities, which I assume will increase as she gets older, the commuting time in the afternoon increases. I do not accept the evidence of the father based on a limited number of trips that the travel time in peak hour is 40 minutes[2].

    [1] Exhibit R1: mother’s travel log to and from (omitted) School

    [2] Affidavit of the father affirmed 30 August 2016,  para.(4)(q)

11. The proposal put by the mother is that X be enrolled at (omitted) School, which is about five minutes from their home in (omitted). The mother has deposed that when Z starts school at (omitted) School, she will be unable to drive both girls to their separate schools to ensure that they arrive on time, meaning that if Z went to (omitted) School and X went to (omitted) School, she would not be able to drive both to school on time.

12. No objection has been raised by the father as to the quality of education offered at (omitted) School, and there is no independent evidence that a change of school would be detrimental to the wellbeing of X.  The husband raises concerns in his affidavit sworn 11 February 2016, but, as I say, there is no independent evidence of detriment and having considered the matters raised I am not persuaded that there will be any notable detrimental effects on X caused by a change of school. 

13. The father contends that the travel time has hitherto not had an impact on X and that the reasons advanced for the change are inadequate to support such a change. As I said earlier, the father contends that the mother should be held to the orders made in 2011. 

14. The father also makes reference in his affidavit sworn 11 February 2016 to the availability of public transport. He contends that he believed that X, in year 6 from the commencement of 2017, would be mature enough to travel from (omitted) to (omitted) by public transport, both in the morning and the evening. That affidavit outlines the journey that would be involved in that course[3].

    [3] Affidavit of the father affirmed 11 February 2016, para.10(k) (The journey involves at least two trains and a tram).

15. I do not accept that that is a realistic option for a child in year 6 to be leaving home at ten past seven to take a number of trains across the city on her own. There is no evidence advanced of any coterie of children from the same area taking the same journey. There is reference to one other family in the (omitted) area sending a daughter to the same school who may accompany X on the same route. The mother was concerned about her daughter taking that journey on public transport in year 6. I fully understand why she expressed that concern, particularly if she was undertaking that journey following after-school activities finishing in the afternoon.

16. In my view, the change of school will be in the best interests of X. I have formed that view having regard of the provisions of ss.60CC(3)(b), (d) and (m) of the Family Law Act 1975 (Cth). I have no doubt that the travel to and from (omitted) to (omitted) in a busy household will be stressful and time-consuming. The difficulties faced by a family with two working parents would be significant.

17. The arrangements proposed whereby X attends a local and highly regarded school with her younger sister has much to recommend it. The positive impacts, which include the fact that:

    a)it is a local school;

    b)that she is at school with a local peer group;

    c)she may be able to walk to school; and

    d)the greater ease of after school activities are manifest and outweigh any negative impact caused by the change of school in year 6.

18. The cross-examination of the mother was to the effect that her life is presently enormously complicated, having to juggle a busy professional life with school and care arrangements, and that this would continue. I am of the view that a change of school may significantly alleviate the stress that the mother experiences in transporting X across the city in peak hour traffic. 

19. Clearly, a change of school is something that the mother has wished for since shortly after making her return to Melbourne in 2012, and I believe that she now accepts that unilaterally seeking to change arrangements in 2012 was inappropriate. However, I do not believe that that behaviour derogates from the substance of her position on change of schools. That X can attend a local school of high standing with her sister is in the best interests of the child for the reasons that I have outlined earlier.

20. I do not believe that the orders will have significant detrimental effect on the father by adding to his stress. The travel time from his house in (omitted) to (omitted) (9.5kms) is not significantly greater than the travel time that evidence has been given of as between (omitted) and (omitted) (5.5kms). I do not accept what is in effect submission from the father that his travel time will increase because of a change of schools.[4]

    [4] Affidavit of the father affirmed 11 February 2016, para.10(u)

21. For those reasons, I am of the view that the change of school is in the best interests of X. I do not accept that a change should not occur because of orders made five years ago regarding the choice of private schools whilst both parents lived interstate. There was no submission made that the order in relation to the change of school could not be made by reason of the rule in Rice & Asplund.

22. In relation to the balance of the matters, the main controversy between the parties arose in relation to the order dealing with the long summer holiday. The terms of the orders proposed by the father following the hearing are in line with orders proposed by the mother in relation those holidays and are reflected in order 5.

23. Order 3 (which is subject to a notation by the court), represents what is in my view a compromised form of the competing orders sought. The mother gave evidence that the three week September holidays give the parties the opportunity to go on longer and (perhaps overseas holidays) which would be of benefit to X and the family that she is staying with at the time. In my view, order 3, relating to the September holidays, is a sensible compromise position and in X’s best interest.

24. In relations to orders 6 and 7, order 6 was uncontroversial. As to order 7, in circumstances where X is living in an established family with the mother, Mr R and Z (when she is not living with her father), I cannot understand why she should not remain in the care of Mr R in the event that the mother is unavailable during weeks that she has the care of X. There is no evidence or submissions that Mr R is not a good caring step father to X or capable of caring for X and Z in the event that the mother is unavailable for more than two days.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 13 October 2016