KDJ and KPJ - [2004] FMCAfam 54

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KDJ & KPJ

[2004] FMCAfam 54

FAMILY LAW – Children – Schooling – Application to change child’s school on an interim basis – Application of principles in Re G (Children’s Schooling) (2000) FLC 93-025.

Family Law Act1975

Cowling (1998) FLC 92-801
Re G (Children's Schooling) (2000) FLC 93-025
Newbery (1977) FLC 90-205

Applicant:

KDJ

Respondent:

KPJ

File No:

MLM 8535 of 2003

Delivered on:

12 January 2004

Delivered at:

Melbourne

Hearing Date:

12 January 2004

Judgment of:

Walters FM

REPRESENTATION

Counsel for the Applicant:

Mr Bliss

Solicitors for the Applicant:

Bullards

Counsel for the Respondent:

Mr Grant

Solicitors for the Respondent:

White Cleland Pty

ORDERS

The husband’s interim application to restrain the wife from removing the child B from Langwarrin Park Primary School be dismissed.
The wife be at liberty to enrol the said child as a student at the Bayles Regional Primary School, Bayles Victoria, for the commencement of the school year in 2004.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 8535 of 2003

KDJ

Applicant

and

KPJ

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

Before the Court today for determination on an interim basis is the husband's application for an order that the wife be restrained from removing the child B from Langwarrin Primary School. The wife, for her part, proposes that the child be enrolled at the Bayles Primary School. The application comes before me on an interim basis in the context of proceedings commenced by the husband ¾ in which he seeks orders to the effect that B live with him, and not with the wife. Such orders, if made, would disturb the existing status quo.
The matter has come before me at the end of a very long and busy Monday duty list. These Reasons are being delivered on an ex tempore basis. It follows that they are likely to be less structured than I would prefer. Nevertheless, in my view it is essential that the parties learn the result of their competing applications at the earliest possible opportunity. I reserve the right, however, to review and amend these reasons should it become necessary for me to do so.
The history of the parties' relationship is dealt with ¾ to some extent ¾ in each party's affidavit. I do not propose to review that history in these Reasons. I do not propose to do so because, in my view, it is not relevant to the matters in issue before me today. The fact of the matter is, however, that B (who was born on 19 July 1996) has remained in the care of the wife since the parties separated, and orders reflecting that arrangement have been in force on a consensual basis for quite some time. The evidence is that the wife has re-partnered, and affidavit material has been provided to the court by the wife's partner.
I have read and taken into account the following material:
a)the application of the husband filed on 2 December 2003 and its accompanying information sheet;
b)an affidavit affirmed by the husband on 26 November 2003;
c)a further affidavit affirmed by the husband on 1 December 2003;
d)the response of the wife filed on 6 January 2004;
e)the wife's affidavit sworn on 5 January 2004; and
f)the affidavit of the wife's partner, Mr R, sworn on 5 January 2004.
Much of the material contained in the affidavits is not of relevance to the matters in issue before me today.
These are interim proceedings, and it is important that I make reference to the approach that the court should adopt in dealing with interim proceedings relating to the best interests of children.
That approach is set out by the Full Court in the well‑known decision of Cowling (1998) FLC 92-801. The relevant passages from Cowling are contained in paragraphs 18 through to 25 inclusive of the Full Court's decision. In paragraph 18 the Full Court said:
The Family Law Act does not draw any distinction between the principles to be applied in determining residence in interim and final proceedings. The essential difference between them is one of procedure. Interlocutory proceedings do not determine the long term rights and obligations of the parties and their children. The issue for determination at an interim hearing involves the consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties. Accordingly, in determining what orders should be made, the court traditionally looks to the less contentious matters, such as the agreed facts, the care arrangements prior to separation, the current circumstances of the parties and their children and the parties' respective proposals for the future. In some cases, it may also be necessary to consider child protection issues.
Clearly, that paragraph is primarily concerned with applications for interim residence. The orders being sought today are in the category of parenting orders, but they are not residence orders or, indeed, contact orders. Nevertheless, it is of assistance, in my view, to look at the primary cases of the parties — because earlier today I made orders and directions which will have the effect of bringing the substantive proceedings on for trial before me on 31 May this year. It follows that the orders that I propose to make at this time are likely to adhere for the period from now through to 31 May of this year. They could also adhere for a longer period than that ¾ depending upon the result of the proceedings at that time.
The husband's substantive application is for residence of B. In his application he seeks an order that the parties have joint responsibility for making decisions about the long term care, welfare and development of B, but that B live with him. He also seeks that he have sole responsibility for decisions regarding B's day to day care, welfare and development. He proposes that the wife have contact with B.
The husband seeks an order that the wife be restrained from removing B from Langwarrin Primary School, and from removing B from his swimming classes. I do not think that I need to say anything further at this stage regarding the orders that are sought by the husband.
Counsel for the husband did not seek to argue the issue of interim residence today. I surmise that the reason for that decision is the complete absence of any evidence in the husband's material which would support a conclusion that residence ought to be changed on an interim basis. Indeed, it is very difficult to ascertain from the affidavit material filed on behalf of the husband the grounds upon which he relies in support of his application for a change of the present residence arrangements ¾ which arrangements have adhered for a long time.
In his primary affidavit (being the affidavit affirmed on 26 November 2003), the husband reviews something of the history of the proceedings between the parties. He makes reference to the fact that he has a child from a previous marriage, T. T was born on 30 June 1993 and resides with the husband. It appears from the affidavit material filed on behalf of the wife that T's mother is deceased. The husband also deals with the issue of B's schooling, and refers to agreements that were reached regarding the school that B would attend. In paragraph 8 of the affidavit, the husband refers to a telephone conversation which took place in March 2003, but which would not appear to be particularly relevant to any of the matters in issue in the proceedings.
In paragraph 9 of his affidavit, the husband refers to B talking about how much he loves school, and comments about the discomfort that B might have felt at that time regarding his mother's relationship with her present partner. The husband’s case appears to be that B would prefer to reside with the husband. The statement appears (in paragraph 9) that “B was thrilled at the prospect of possibly coming to live with T and myself”. And in paragraph 14, the husband states “B has expressed his desire to live with T and I and to remain at the school at which he currently attends”.
In my opinion, those statements appear to float, as it were, and are directly linked to other matters deposed to by the husband. I note, as well, that the wife denies that B wishes to reside with the husband and his half‑brother. That is a matter, of course, that will have to be considered further at the trial of the proceedings, when proper evidence is provided to the court. In any event, the question of the weight to be attached to the wishes of a child of B's age is one that will need further consideration. Prima facie, it would appear that little weight should be given to the wishes of a child of B’s age.
In paragraph 10 of his affidavit, the husband records his belief that the wife is having difficulty coping with her full‑time shift work as a police officer, and with the parenting of B. He gives one or two examples. The wife, for her part, denies that she is having trouble coping with the parenting of B. The husband's statement is one of belief.
In my view, the matters deposed to by the husband in his affidavit material are insufficient, even if demonstrated, to justify a change in residence ¾ on either an interim or a final basis.
In paragraphs 11, 12, 13 (and the remaining paragraphs), the husband describes some aspects of the interrelationship between the parties, and records the fact that the wife intends to move from Langwarrin to Bayles. Langwarrin and Bayles are approximately 35 kilometres, or half an hour’s drive, apart. The husband deposes (in paragraph 13) to his belief that stability is important in B's life, and that it is important that B spend time and enjoy a relationship with his brother, T. He speaks of the activities that B has involved himself in. In paragraph 14, the husband records his belief that he is in the best position to care for B on a daily basis.
In paragraph 15, the husband deposes to his view that he is able to offer B love, care and stability. In paragraph 16, he asserts that it is important for the two boys to spend as much time together as possible.
The husband’s second affidavit does little more than emphasise the importance of having the current proceedings dealt with prior to the commencement of the 2004 school year. Again, statements of belief prevail in the affidavit. That may well be simply the result of poor drafting, and not be reflective of any weakness in the husband’s case. Nevertheless, I have made reference to the affidavit material filed on behalf of the husband because, in my view, it does not raise anything even approaching a prima facie case to support a change in residence for B. That is so when regard is had to all the factors that are discussed in Cowling, and, of course, to the factors that must be taken into account in a final determination as to residence.
Clearly, parties’ cases can change during the course of the proceedings, and it may well be that between now and when this matter comes on for trial in May of 2004 the husband's case for residence is strengthened in some way. But as it presently stands, and on the papers, and without prejudging it in any way whatsoever, it can only be described as a very weak case for residence. It follows that — at least at this point in time — it is fair for the court to anticipate that, unless there is a radical change in the husband's case, the likelihood is that there will be no change in residence when this matter comes on for trial in May 2004.
Lest it be thought that the comment that I have just made amounts to some form of prejudgment, I wish to emphasise that I have prejudged nothing. I have listened carefully to the arguments that have been presented to me by counsel, and I have read the material filed on each party’s behalf. It is after having had regard to those arguments and that material that I have made the statements set out above. And I do recognise the fact that the husband's case may "firm up" at some time in the future.
It becomes unnecessary, in the circumstances of this case (as I have described them above), to go paragraph by paragraph through the Cowling decision — but I wish to place on record the fact that I have re-read the paragraphs to which I have referred (and that I am very familiar with them in any event).
I take into account the need to ensure stability in the life of a child pending a full hearing of all the relevant issues, and the principle that, as a general rule, interlocutory or interim orders should promote that stability. I take into account, as well, the fact that stability is usually promoted by continuing the arrangements that have adhered prior to a hearing until the matter is finally determined. It is only at the final hearing that all relevant evidence is presented to the court and can be considered. But these principles or guidelines are expressed to be subject to the question of whether there may be strong or overriding indications relevant to the child's welfare to the contrary.
The only issue for me to determine today is which school B should attend between now and May of this year. The Full Court has considered the question of schooling in the decision of Re G (Children's Schooling) (2000) FLC 93-025. I am conscious that the decision in Re G(Children's Schooling) was a decision reached by a trial judge after a trial dealing with all relevant issues. It was not an interim determination, such as I am being asked to make in this case. Mr Grant has correctly drawn the court's attention to the thrust of the reasons given by the Full Court in Re G(Children's Schooling). Of importance is the fact that the Full Court indicated that the trial judge had applied the law as it was expounded in an earlier case (Newbery (1977) FLC 90-205), and that her Honour had fallen into error by applying that approach. Newbery is no longer good law.
When trying to determine how to approach a case of this nature, however, it is necessary to look at the manner in which the Full Court itself exercised its discretion relating to the question of the children's schooling in that case — because it provides some guidance as to how I should approach the matter (on an interim and a permanent basis). In paragraph 65 of Re G, on page 87,416, the Full Court said:
We approach the question of the wife's application without any legal presumption that favours acceding to the proposal of the parent with whom the children are living. Section 65E of the act requires a determination between the competing proposals on the basis that the best interests of the child are the paramount consideration.
I pause here to place on record that I have had B’s best interests (as I perceive them to be) uppermost in my mind, when considering the orders that are most appropriate. B's best interests are certainly the main, or the paramount, consideration in this case. But, as the Full Court said in Re G, they are not the only consideration.
The Full Court continued:
Although there is no legal presumption in favour of the residence parent and, correspondingly, no hurdle or onus faced by the other parent, that is not to say that the reality of the children residing predominantly with one parent has no relevance.
Their Honours then cited a passage from the decision of Kirby J in AMS v AIF. The reality in the case now before me is that B resides with his mother and that, on the basis of the material now before me, it is unlikely that that situation will change in the foreseeable future. The mother has set out in her affidavit her preferences as far as B's education is concerned, and I shall revisit the relevant passages a little later in these Reasons. I place no burden on either party to prove anything in this case and I apply no presumptions one way or the other — but I do take into account the fact that the wife is the primary caregiver for B in this case, and that she has had that role for all of the time since separation (and for much of that time with the consent of the husband).
The Full Court continued (at paragraph 66) to refer to certain factors in section 68F(2). The sorts of factors that might be relevant in a decision of this nature, at least on a final basis, are referred to in paragraph 67. The first is the question of B's wishes. Each of the parties asserts that B wishes to either change his school (according to the wife) or remain at his school (according to the husband).
I have read the material attached to the wife's affidavit, and in particular the letter from Peninsula Health dated 16 December 2003. I am conscious, of course, that the material attached to the wife's affidavit is hearsay and that the husband has not had the opportunity to test the evidence in the usual way. Nevertheless, no argument was addressed to me to the effect that the matters contained in the documents attached to the wife's affidavit are either inaccurate or inappropriately presented to the court. What is clear from the Peninsula Health report (which relates to an assessment of B on 11 April) is that he is a “bright and vigilant child” who — at that stage — was anxious about his visits to his father. The comment continues:
He expressed concern about his father's strict discipline. He seemed worried about remaining loyal to both his parents, whose relationship was angry and conflicted.
The affidavit material reveals that the latter part of that paragraph is accurate. I say nothing about the allegations regarding the husband's strict discipline. That is a matter that may have to be determined at another time.
In the school material which is attached to the wife's affidavit, I read that B is progressing extremely well at his present school. Both parties (through their counsel) have emphasised that B is an intelligent and capable child. One of the comments appearing in B’s report for the second semester of 2003 — and it is under the heading Physical Education — is as follows:
B is very sociable. He really enjoys the company of others and is rarely lost for words.
Then, surprisingly enough, the comment appears:
B needs to develop good habits of communication.
By and large, the school was extremely happy with B's progress and it would seem that the child is coping very well with his education. I recognise, however, that he was only in year 1, and that he will be commencing year 2 this year at one of the schools referred to by the parties.
I cannot determine (at this stage of the proceedings) what, precisely, B’s wishes may be, and I certainly cannot determine what weight should be attached to them. Suffice it to say, however, that he appears to be a child who is sufficiently bright and sociable to cope with change where it is required. B does not appear to be described — in the material that has been presented to me — as a child who would be traumatised by a change in schools.
In paragraph 67 of Re G, the Full Court refers to the need to consider the nature of the relationship of the child with each of the child's parents, and with other persons. The precise nature of B's relationship with his father would appear to be in dispute in these proceedings, and I can make no final determination regarding that subject at this stage. It is likely, though, that he has a close and loving relationship with both his parents. It is likely, as well, that he has a close and loving relationship with the wife's partner, Mr R. I do understand that the husband places that in issue, but when I read his affidavit material, it appears to me the evidence that the husband relies upon in support of the suggestion that there may not be a good relationship is now somewhat dated and, in any event, is not the strongest of its sort.

What has been impressed upon me today by Mr Bliss on behalf of the husband is the importance of B's relationship with his half‑brother, T. That is a matter that I take into account in these proceedings. Quite clearly, the boys have a close and constructive relationship. Mr Bliss emphasised the fact that T attends the Langwarrin Primary School and that it is a very positive factor from B's point of view that his older half‑brother attends the same school as he attends. I take that factor into account, and I give it weight. It would appear, however, that the age difference between the boys is such that the school does not prima facie encourage the half‑siblings to play together. I take into account, as well, the fact that the husband has significant defined contact with B in any event and that, irrespective of the orders that I may make in relation to B's schooling, there will continue to be considerable interreaction between the boys. It is not as if the boys’ relationship is going to be severed — or even strained — if B is to attend another school. I can understand that the husband would prefer that his two sons attend the same school, but I must look at all relevant considerations in this case. Nevertheless, there is no doubt that this particular factor supports the husband’s case.
The next factor is the likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either of his parents or any other child or other person with whom he has been living. It is not suggested that B is to be separated from either of his parents if he were to leave one school and commence another. It is certainly suggested that there will be a change in the contact arrangements, and hence the relationship that B has with his half‑brother, T. But this particular consideration does not require me to focus on the nature of the relationship between the two boys. It requires me to consider the effect of any change in B's circumstances. Again, and on the evidence before me, I cannot conclude that — even on an interim basis — there is likely to be any adverse effect on B if he were to attend a different school from his older half‑brother. There is no evidence before me that would suggest that B could not cope with that situation.
A further factor that the Full Court refers to in paragraph 67 is the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents. The parties have been critical of each other in their affidavit material, regarding certain behaviours and attitudes to the child. I have already referred to the matters raised by the husband. In my view, they do not raise any significant concerns regarding the wife's attitude to B, or regarding the responsibilities of parenthood demonstrated by the wife. Certainly, the wife's material raises significant concerns regarding the husband's attitude to the responsibilities of parenthood. One of those responsibilities, as Mr Grant has emphasised, is the obligation to financially support children where that possibility exists. Nevertheless, at this stage I cannot make any findings regarding that subject — and I make none. I am aware, however, of the criticisms that each party makes of the other and I am aware of the fact that, at least on the surface, the criticisms raised by the wife are of much more significance, than the criticisms raised by the husband. All in all, it is my view that this is not a particularly important factor in proceedings of this nature at this time.
“Any other fact or circumstance that the Court thinks is relevant” is a further factor. It was argued before me that the comparative size of the two schools is a consideration which should be taken into account, and one that favours B's continuation at Langwarrin Primary School as opposed to the school at Bayles. So, it is argued, is the fact that B is a child who may be regarded as a gifted child, and that his education may proceed more effectively and more successfully at Langwarrin because of the programs that a larger school might offer to gifted children. As well, there is a suggestion that B may be subject to some form of teasing, or taunts, at a new school.
I take these matters into account — but I give them little weight. I give them little weight because the husband is the applicant in this case. If he had been minded to do so, he could have provided particulars of precisely why it is that a larger primary school is likely to better cater for B's educational needs than a smaller primary school. He could have dealt with this subject in one of the two affidavits that he filed in support of his application. He could have given more detail — or some detail — about the effect on B of changing schools, such as the taunts to which he may be subjected. He could have dealt with all sorts of factors in his affidavit material. He well knew that the wife was relocating to Bayles, and he applied to this Court to prevent the change in schooling. He did not put direct evidence relating to those matters before the court. Although I take them into account, they are (in my view) of little weight in the context of these proceedings.
The Full Court also said in Re G (under the heading “Conclusion”) that there was much substance to arguments on the wife's behalf in that case that weight should be given to the travel commitments associated with the school that the children attend. I do not propose to read out paragraphs 92 and 93 of the Full Court's decision (which appear on page 87,419) but they emphasise that the residence parent has, in most cases, greater day‑to‑day responsibilities in relation to the child. The Full Court said:
It is the residence 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 residence parent should not be subject to more irksome and unnecessary additional restraints than such commitments already entail.
When I have regard to the complexity of the arrangements that the wife and her partner must make for the supervision of B, and to the fact that, when I read B’s report, her parenting and the parenting of the husband seem to be working extremely well and in his best interests, it seems to me that the distance that B is going to have to travel, and by implication one of his carers is going to have to travel if the wife relocates to Bayles and B remains at Langwarrin, is a very significant factor in this case.
In paragraph 23 of her affidavit, the wife denies that she is experiencing difficulty in handling her new career as a member of the Victoria Police. She goes on to say:
I am currently stationed at Rosebud, with a new posting being due in March of 2004. I have not been advised quite where that posting may be.
The wife says further:
Barry works on a rotating shift basis which results in him having two days off work per week. I have a 12‑hour shift roster which allows me four days off per week. My roster is worked out six weeks in advance. The benefit of our shift rostering arrangements is that we both have an extremely good opportunity to arrange our shifts to interfere as little as possible with child care arrangements. We expect no difficulty in arranging times to suit in the future.
The wife continues:
I deny that B is left in the care of others for substantial amounts of time as is alleged. There is no need for this to occur.
In paragraphs 54 to 59 inclusive of the wife's affidavit, she deals with the subject of B's schooling. She describes the fact that the school that B is to attend is only some 200 metres from the new home of the wife and her partner, and that B has seen the school and met with the principal and appropriate teachers. According to the wife, he is enthusiastic about the school, and keen to commence. In paragraph 56, the wife describes the school population as being 77 pupils, and emphasises the positive qualities of the school — but I cannot possibly determine (on the evidence before me) that one school is preferable to the other insofar as its facilities for tuition and/or its standards are concerned.
In paragraph 57, the wife deposes to having spoken with B about attending a different school to T and, according to the wife, B is not deterred by that prospect.
In paragraph 59, the wife says that significant uniform and book expenses have been incurred with respect to B's attendance at the Bayles school. The wife then states:
In addition to this, there will be considerable difficulty experienced in transport arrangements if B is unable to commence at his new school at the commencement of the school year.
When I have regard to the passages in paragraphs 92 and 93 of the Full Court's decision in Re G, it seems to me that the proximity of the child's school to his principal residence is an extremely important consideration, even on an interim basis. I do not minimise any of the arguments put forward, in my view very effectively, by Mr Bliss on behalf of the husband. There are certainly arguments which would favour his client’s view of the case. The principal one, of course, is the fact that B has been attending the Langwarrin school up to this point in time. They are not minor matters, but it is necessary to weigh all relevant considerations in this case.
When I have regard to the other factors to which I have referred and, in particular, the likely inconvenience to both B and his primary caregiver (being his mother) if he is to attend a school some 35 kilometres — or half an hour's drive — from his home then, when I have regard to B's strength of character as described in the material provided and attached to the wife's affidavit, it seems to me that the balance must come down on the side of the wife's case. When I add to that the fact that the husband's case for residence appears, at this stage, to be very weak, the likelihood, it seems to me, is that B is going to eventually attend the Bayles school. That is certainly not a final determination. It is simply an observation of and reflection upon the evidence as it currently stands.
To return, therefore, to the approach set out by the Full Court in Cowling, I have reached the conclusion that there are indeed “strong or overriding indications relevant to B's welfare” that compel the Court to conclude that it is in his best interests that the change of schooling should take place now, at the commencement of the 2004 school year. I have not ignored any of the other factors set out in Cowling but, in my view, the most important factor is the one to which I have already referred — being the distance between the child's principal place of residence and the school that the father would have him attend (and the effect of that distance on B and on his principal carer).
The husband's application to restrain the wife from changing the child's school on an interim basis will be dismissed.

I, Paul O'Halloran, certify that the preceding fifty (50) paragraphs are a true copy of the Reasons for Judgment of Walters FM

Associate: Date: 15 March 2004