Jardine and Jardine-Roseby

[2014] FCCA 652

FEDERAL CIRCUIT COURT OF AUSTRALIA

JARDINE & JARDINE-ROSEBY [2014] FCCA 652

Catchwords:
FAMILY LAW – Interim parenting – school that child should attend – high conflict.

Legislation:  

Family Law Act 1975 (Cth) ss.60CA, 60B, 61DA, 65DAA, 60CC and Part VII

MRR v GR [2010] HCA 4
Goode & Goode [2006] FamCA 1346
Re G: Children’s Schooling [2000] FamCA 462

Applicant: MR JARDINE

Respondent: MS JARDINE-ROSEBY

File Number: WOC 274 of 2014

Judgment of: Judge Altobelli

Hearing date: 30 March 2014

Date of Last Submission: 30 March 2014

Delivered at: Wollongong

Delivered on: 1 April 2014

REPRESENTATION

Solicitors for the Applicant: Southern Waters Legal

Solicitors for the Respondent: Mr R

ORDERS

1. The parents have equal shared parental responsibility for the child, [X] born [in] 2004.

2. The parents have sole parental responsibility for making decisions about the day to day care, welfare and development of the child whilst the child is living with or spending time with them respectively.

3. The child live with the Father at all time when not living with the Mother.

4. The child live with the Mother each alternate week from after school on Thursday to before school on Tuesday commencing 3 April 2014 noting that the child is currently in the Mother’s care and further noting that it is not the intention of these Orders to cause [X] to be returned to his Father’s care before 3 April 2014.

5. The child live with the Mother for one half of each school holiday period to coincide with when her son [Y] is in her care, with such dates to be notified to the Father no later than the first Friday of the school term before such holiday period.

6. When the child is not living with his Father, the Father is responsible for collecting the child from the Mother’s residence and delivering him to school for the beginning of school, and at the conclusion of school, collecting him from school and delivering him to the Mother’s residence.

7. The Father be restrained by injunction from entering the Mother’s residence. 

8. The child have telephone contact with the non-resident parent on each alternate day he is not living with them.

9. As from tomorrow, 2 April 2014, the parents are to do all things necessary to cause the child to be re-enrolled at [B] School.

10. Leave be granted to the Applicant Father to provide a copy of these Orders to the Principal of [B] School.

11. Without admission, the parties are restrained from abusing, insulting, belittling, rebuking or criticising each other to or in the presence of the child or any of them and from permitting any other person to do so and the parties are further restrained from discussing these proceedings in any way in the sight or hearing of the child or permitting any other person to do so.

12. Pursuant to section 11F of the Family Law Act 1975 the parties attend a child inclusive child dispute conference with a Family Consultant in this Registry on 29 July 2014 at 9am. The parties are advised that if a person fails to comply with this order or any instruction the consultant gives to the person the consultant must report the failure to the Court. The Applicant and Respondent are to do all things necessary to facilitate the attendance of the child promptly at the commencement of the conference.

13. The Respondent Mother file and serve a Response within 7 days.

14. The Respondent Mother file and serve a Notice of Address for Service within 7 days.

15. The Respondent Mother cause to be filed at the Registry her Affidavit sworn 31 March 2014.

16. The matter be adjourned to 11 August 2014 at 9.00am for mention.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT WOLLONGONG

WOC 274 of 2014

MR JARDINE

Applicant

And

MS JARDINE-ROSEBY

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. I provide the following ex tempore reasons in the matter of Jardine & Jardine-Roseby.  This case is about [X], who was born [in] 2004.  [X] is 9 years old.  The applicant is his father, who describes himself as an electrician.  He is 38 years old and lives in [S].  The respondent is [X]’s mother.  She describes herself as a solicitor.  She too is 38 years old, and lives in [C].  The parents appear to have commenced cohabitation in 2001, married in 2007, and appear to have separated in October 2013.  There is some contention about this, but nothing turns on it in the present application.

2. The matter was heard late yesterday afternoon in my duty list in Wollongong.  The reasons are being delivered just after 9 am today, before the commencement of the duty list.  Reasons are therefore necessarily circumscribed.  Regrettably, it is absolutely necessary for the Court to make orders in relation to [X] because, as I observed to both parents and those who represented them yesterday, based on the material before the Court, the Court had no confidence in the capacity of either parent to make child focused decisions in relation to their son. 

3. This is an unfortunate case where both parents are clearly intelligent, articulate and high functioning, but where the emotions generated by an acrimonious separation has created obstacles to child focused decision-making.  The application was brought on short notice.  The respondent has not yet filed a response, but relied on a very long affidavit the size of a telephone book which was sworn yesterday.  As is so common with these duty applications, the evidence is hastily prepared, is highly contentious, and is untested.  But for reasons that should become obvious, a decision needs to be made.

4. The following facts emerge from exhibit A, a chronology prepared by the parties at my request.  At the time of separation, [X] was attending [B] School, the school that he appears to have attended all of his life, or a substantial part of it.  He was living with his mother.  On 7 December 2013, there was an incident at [M] that resulted in the mother’s hospitalisation.  [X] was initially in the care of the maternal grandparents and then in his father’s care. 

5. On 23 December 2013, the mother appears to have entered into a lease of the premises that she currently occupies at [C]. Between 9 December 2013 and 3 February 2014, [X] was in his father’s care. 

6. On 3 February 2014, the mother attended [X]’s school at [B] and removed him.  Between 3 February and 13 February, [X] was in his mother’s care and did not go to school at all.  Between 13 February and 17 February, [X] was in his father’s care and appears to have attended school.  Between 17 February and 25 February, [X] was in his mother’s care but did not go to school on 24 February.  Between 25 February and 3 March, [X] was in his father’s care and attended school.  Between 3 March and 11 March, [X] was in his mother’s care but did not go to school on 10 March.  Between 11 and 18 March, he was in his father’s care.  Between 18 and 21 March, in his mother’s care. 

7. On 19 March, the mother took [X] to [C] School, it would seem for the first time.  [X] was at [C] School on 20 and 21 March.  [X] was with his father on 21 through to 24 March and attended [B] School on 24 March.  Between 24 and 28 March, [X] was with his mother.  It is unclear what school he attended, but he did not go to school on 25 March.  Between 26 and 31 March, and I presume today, [X] is at [C] School. 

8. What should be abundantly clear to any objective observer of these facts is that the parents are unable to agree what school he should attend, and that [X] has in fact attended two schools so far this term.  It is also clear that he has simply not attended school at times whilst in the mother’s care, though in her evidence she does offer some explanations for that.  The schooling issue is the main issue for determination.  It is inextricably linked with the broader parenting orders that are in [X]’s best interests, that is, where he is to principally live and what time he is to spend with the other parent. 

9. The competing proposals are as follows.  The father’s proposal is set out in the Annexure B to his application filed 27 March 2014, and he seeks orders 2 to 5 inclusive.  The effect of his proposal would be that [X] live with the father, spend time with the mother from after school on Thursday until the commencement of school on Monday each alternate week, and that [X] be forthwith re-enrolled at [B] School. 

10. In addition, the father proposed, through his counsel, that when [X] was in his mother’s care, that the father would be responsible for getting him to and from school.  In addition, through his counsel, the father explained that he was proposing that [X] spends half of each school holiday period with his mother.

11. The mother’s proposal was explained by Mr R, her father, who was appearing for her yesterday.  In effect, the mother’s proposal was that the Court make a parenting order consistent with the document which was the Annexure L to her affidavit, which is a calendar which shows her proposals about when [X] would be with the father.  The mother has not filed a response and one of the directions that I will make is that she file a response within 7 days.  In effect, the mother’s proposal would be that [X] lives with her, attends [C] School, and spends substantial and significant time with his father.

12. The evidence before the Court consisted of the father’s affidavit filed 27 March and the mother’s affidavit that was sworn 31 March, and which technically has not been filed, but which I will direct should be filed.  In addition, I have already made reference to exhibit A, which was a document entitled Chronology Re-Schooling Issues, that was prepared at my request. 

13. In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

14. The objects and principles of Part VII are set out at s.60B:

    60B  Objects of Part and principles underlying it

    (1)    The objects of this Part are to ensure that the best interests of children are met by:

    (a)    ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

    (b)    protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

    (c)     ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

    (d)    ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

    (2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

    (a)    children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

    (b)    children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

    (c)     parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

    (d)    parents should agree about the future parenting of their children; and

    (e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

    (3)    For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

    (a)    to maintain a connection with that culture; and

    (b)    to have the support, opportunity and encouragement necessary:

    (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

    (ii)    to develop a positive appreciation of that culture.

15. At the very core of the Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

    61DA  Presumption of equal shared parental responsibility when making parenting orders

    (1)    When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

    (2)    The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

    (a)    abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

    (b)    family violence.

    (3)    When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

    (4)    The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

16. If the presumption applies, I am required to consider certain things:

    65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

    Equal time

    (1)    If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

    (a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

    (b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

    (c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

    Substantial and significant time

    (2)    If:

    (a)    a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

    (b)    the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

    the court must:

    (c)     consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

    (d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

    (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

    (3) will be taken to spend substantial and significant time with a parent only if:

    (a)    the time the child spends with the parent includes both:

    (i) days that fall on weekends and holidays; and

    (ii)    days that do not fall on weekends or holidays; and

    (b)    the time the child spends with the parent allows the parent to be involved in:

    (i) the child’s daily routine; and

    (ii)    occasions and events that are of particular significance to the child; and

    (c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

    (4)    Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

    Reasonable practicality

    (5)    In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

    (a)    how far apart the parents live from each other; and

    (b)    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; and

    (c)     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

    (d)    the impact that an arrangement of that kind would have on the child; and

    (e)     such other matters as the court considers relevant.

17. Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.

    Determining child's best interests
      (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
    Primary considerations
    (2)  The primary considerations are:
    (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and
    (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
    Note:          Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
    (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
    Additional considerations
    (3)  Additional considerations are:
    (a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
    (b)  the nature of the relationship of the child with:
    (i)  each of the child's parents; and
     (ii)  other persons (including any grandparent or other relative of the child);
     (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:
     (i)  to participate in making decisions about major long-term issues in relation to the child; and
     (ii)  to spend time with the child; and
     (iii)  to communicate with the child;
     (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
     (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
     (i)  either of his or her parents; or
     (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
     (e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
     (f)  the capacity of:
     (i)  each of the child's parents; and
     (ii)  any other person (including any grandparent or other relative of the child);
    to provide for the needs of the child, including emotional and intellectual needs;
     (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
     (h)  if the child is an Aboriginal child or a Torres Strait Islander child:
     (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
     (ii)  the likely impact any proposed parenting order under this Part will have on that right;
     (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
     (j)  any family violence involving the child or a member of the child's family;
     (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
     (i)  the nature of the order;
     (ii)  the circumstances in which the order was made;
     (iii)  any evidence admitted in proceedings for the order;
     (iv)  any findings made by the court in, or in proceedings for, the order;
     (v)  any other relevant matter;
     (l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
     (m)  any other fact or circumstance that the court thinks is relevant.
    Consent orders
     (5)  If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
    Right to enjoy Aboriginal or Torres Strait Islanderculture
     (6)  For the purposes of paragraph (3)(h), an Aboriginal child's or a Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
     (a)  to maintain a connection with that culture; and
     (b)  to have the support, opportunity and encouragement necessary:
     (i)  to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

    (ii)  to develop a positive appreciation of that culture.

1. In MRR v GR [2010] HCA 4 the High Court said

   8.  Sub-section (1) of s 65DAA is headed "Equal time" and provides:

   "If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

   (a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents."  (emphasis added)

   Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)).  In such a circumstance the Court is obliged to:

   "(c)   consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."

   Sub-section (3) explains what is meant by the phrase "substantial and significant time".

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

2. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

3. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed and I will incorporate into these reasons a number of paragraphs from the Full Court’s judgment.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, 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 Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

4. The Full Court’s decision in Re G: Children’s Schooling [2000] FamCA 462 provides some guidance and I will incorporate into these reasons a number of paragraphs from the Full Court’s judgment.

   92. In addition, 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 fulfilment 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. We do not consider that the fact of a prior agreement between the parties as to [School A] carries much weight in the changed circumstances of the family.
   93. While we have indicated that her Honour was wrong in taking guidance from Newbery’s case, 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. The matters advanced by the wife in this regard weigh in favour of the wife’s choice of school.
   94. We think the sentiments expressed by the Full Court in the following passage from B and B: Family Law Reform Act 1995 (1997) FLC 92-755 are apposite (and consistent with the approach of Kirby J as set out in para 65 above):-

   
   
   
   
   

   “9.66 The interests of the children may be affected by proposed relocation in two broad ways. Firstly, the relocation may be of benefit not only to the parent but also to the children in a direct way. That is, the lifestyle of that family unit and those children may be enhanced by the move. Secondly, in some cases the inability of the residence parent to relocate will impose significant pressures upon that parent and diminish his or her capacity to cope and so diminish the quality of the lifestyle in that home. A very important aspect of a child's best interests is to live in a happy family environment. That may be significantly impacted upon where the residence parent is required to live in circumstances which diminish his or her future life either in an economic or a social sense, perhaps in a long-term way. If that had an adverse impact upon the children's best interests, that may be an important matter to consider. Similarly, the prospect that the lifestyle of members of that family will be enhanced by the move is a positive factor to be considered as part of an assessment of the children's best interests.
   9.67 Ordinary common experience indicates that long-term unhappiness by a residence parent is likely to impinge in a negative way upon the happiness and therefore the best interests of children who are part of that household. Similarly, where the parent is able to live a more fulfilling life this may reflect in a positive way on the children. However, the ultimate determinant is the best interests of the children; the wishes and desires of the parent per se give way to that.”

   95. It should not be forgotten that such considerations are not confined to the convenience of the residential caregiver. There are obvious benefits to the best interests of the children – the Court’s paramount but not sole consideration – in them being able to readily participate in school activities outside school hours without the necessity for extensive travel.

5. In relation to Re G:  Children’s Schooling, there are, I think, two points emerge from that decision.  Firstly, the importance of understanding the issue of schooling in the context of the broader issue of parenting orders relating to a child.  But, secondly, the decision of the Full Court in Re G was clearly made in the context of a final decision rather than an interim decision, which is what the Court is called upon to make in this case. 

6. I propose to deal with what evidence is before me by reference, initially, to the provisions contained in section 60CC of the Act, and then to section 65DAA. Section 60CC(2)(a) deals with a child having a meaningful relationship with both parents. That is not a determinative consideration in this case. Both proposals that are before the Court and, indeed, any other proposal or order that the Court would make that is situated in between the proposals, would ensure that [X] has a meaningful relationship with his parents.

7. Section 60CC(2)(b) talks about the need to protect [X] from harm. Again, this is not determinative. Whilst the mother raises issues of family violence and the father issues about the mother’s erratic behaviour, neither proposal reflects the concerns set out in their affidavits. For example, there is no suggestion whatsoever of supervision. The allegations made by each against the other are indicative of the level of conflict, distrust, and the emotional overlay in this case, but do not appear to go to section 60CC(2)(b) issues, having regard to how the case was presented before me yesterday.

8. Section 60CC(3)(a) deals with any views that [X] might have expressed. [X]’s views are not determinative in the present context. Whatever either parent says [X] is saying, is highly unreliable. His views will be relevant, and I propose to order a child inclusive conference to ascertain these views, but for present purposes his views are not determinative.

9. Section 60CC(3)(b) deals with the nature of [X]’s relationships with his parents and other persons around him. Again, this is not determinative. [X], from all the evidence, enjoys good relationships with all of the adults around him, as well as his step-brother, [Y]. None of the orders proposed, or any order that would be within the ambit of the orders proposed, will impact on this.

10. Section 60CC(3)(c) deals with the extent to which each of the child’s parents has taken or failed to take the opportunity to do certain things. The issue here is not whether one parent has taken the opportunity to participate in decision-making, but, rather, what the father construes as the mother’s arbitrary decision to change [X]’s school. Despite the mother’s attempts to construe communications between the father and herself as his consenting to a change of school that would be stretching the evidence to unrealistic levels.

11. The more likely inference to be drawn from the available evidence, and the strong impression formed from the available evidence, is that the mother unilaterally changed [X]’s school without notice or agreement with the father, and then in the course of the present application has sought to engage in revisionist history and construe communications between them as either his consent or lack of opposition.

12. Section 60CC(3)(ca) deals with the extent to which each of the parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child. On the evidence before me, that is neither relevant nor determinative.

13. Section 60CC(3)(d) talks about the likely effect of any changes in the child’s circumstances. This is a significant factor in this case. It is common ground that [X] has been removed from the school that he attended all of his life and away from the school that his broader family has been connected with for many, many years.

14. The reason appears to be the mother’s decision to relocate her residence from [S] to [C].  There appears to be no evidence of objective concern in relation to [B] School.  What the mother’s move has achieved is to expose [X] to a new school environment, a new circle of friends, and a new community and moved him away from a familiar environment, a familiar circle of friends and a community for reasons that appear to have little to do with him and much to do with her.

15. What the parents appear to have overlooked in the fog of emotions surrounding their separation is that, based on this Court’s experience, the impact of a change of school at a time when parents are going through an acrimonious separation is greatly exacerbated for [X].  School is so often a haven of peace for children at a time when their home is not.  Putting aside the school issue, the parenting orders proposed by the father probably reflect the greatest change for [X] as compared to the mother’s.  For that reason, the orders that he seeks in those terms are probably contraindicated. 

16. Section 60CC(3)(e) deals with issues of practical difficulty and expense. These issues are not determinative in this case in circumstances where the father has proposed that if the Court will order [X] return to [B], he will assume responsibility for travel to and from school. There also appears to be extended family that might be willing to assist.

17. The Court’s concern, however, is the impact of travel to and from school and his mother’s home.  The mother’s estimates of travel are probably inflated.  The father’s estimates are probably minimised.  The Court takes judicial notice of the fact that both [C] and [S] are in the [S] Shire.  [B] School is in the [G] area.  The distance between [S] and [B] is minimal and has obviously not been a problem for [X] before.  The real issue is travel from [C].  The only inference the Court can draw is that more travel time would be required from [C] to [B].  This problem is best managed by determining what time [X] should spend between his parents, a decision that is, in any event, based on other factors.

18. Section 60CC(3)(f) deals with issues of parental capacity. This is a significant issue. The father raises concerns about the mother’s capacity to provide for [X]’s emotional needs and, to a certain extent, physical needs. There are reasons to be concerned about the mother’s capacity to remain child-focussed. Her decision to change [X]’s school cannot be construed as child-focussed. Moreover, she has suffered a serious injury as a result of the incident at [M] on 7 December 2013.

19. In her affidavit she describes this as follows, and I quote:

    Your client caused me to injure myself in trying to break out of a glass window to get away from him.

    This comes from the mother’s letter to the father’s solicitor dated 21 March, page 2.  There is no time or necessity to go into this terrible incident.  Neither parent will survive close and sustained criticism about it in due course.  But even the mother agrees that it was, and I quote:

    A terrible mistake in deciding to go up to the house.

20. That comes from paragraph 68 of her affidavit.  It shows a real lack of judgment and insight on her part.  There is a strong inference of an emotionally driven woman oblivious to the possible consequences to herself and to [X].  Another real lack of insight and indicator that she struggles to meet [X]’s needs is her taking [X] out of school for an extended period.  Moreover, the nature and extent of her physical injuries and its impact on parenting is unknown.

21. Section 60CC(3)(g) is not determinative.

22. Section 60CC (3)(h) is not relevant.

23. Section 60CC (3)(i) is probably dealt with under paragraph (f).

24. Section 60CC (3)(j) is dealt with under 60CC(2)(b), so too is section 60CC (3)(k).

25. Section 60CC (3)(l) talks about whether it will be preferable to make an order that is least likely to lead to the institution of further proceedings. All I can say is that there is an overwhelming need in this case to impose a predictable, reliable and stable order for [X]. This is something that he has certainly not enjoyed in the last few months of his life.

26. Section 61DA deals with the presumption of equal shared parental responsibility. Neither parent deals with this in their application but the Act requires me to consider it and there is no evidence to suggest that either subsections (2) or (4) of section 61DA applies. I acknowledge the communication problems and the lack of trust that exists between [X]’s parents but, quite frankly, given the snapshot of the parents’ relationship that the Court has received, one would not trust either parent with sole parental responsibility.

27. Section 65DAA requires me therefore to consider equal time. Equal time is not, on the evidence before the Court, at this time in [X]’s best interests and it is certainly not reasonably practicable, particularly by reference to paragraphs (a), (b) and (c) of subsection (5). An order for substantial and significant time is the next best alternative and the Court can only hope that, as a result of clear orders as well as regularising contact, that this arrangement can be more reasonably practicable.

28. I turn now to consider, having regard to all of the above matters, what order I consider to be in [X]’s best interests.  When all the factors in this case are balanced, [X] should be forthwith returned to the school at [B], effective tomorrow.  When [X] is not living with his father he, that is, the father, is responsible for [X]’s travel to and from school.  On balance, he should spend more time with his father, and the orders I make will reflect this.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Altobelli.

Associate: 

Date:  3 April 2014