Kirkland & Granger - [2007] FamCA 1471

FAMILY COURT OF AUSTRALIA

KIRKLAND & GRANGER

[2007] FamCA 1471

FAMILY LAW – CHILDREN – Orders made in regard to child’s enrolment in a particular school – Significant time – Best Interests

Family Law Act 1975 (Cth)

VR & RR (2002) FLC 93-099
W & G(No. 2) (2005) FLC 93-248

APPLICANT:

Ms Kirkland

RESPONDENT:

Mr Granger

FILE NUMBER:

MLC

3382

2007

DATE DELIVERED:

17 December 2007

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Albury

JUDGMENT OF:

Justice Cronin

HEARING DATE:

23 & 28 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Boyle

SOLICITOR FOR THE APPLICANT:

Harris Lieberman

COUNSEL FOR THE RESPONDENT:

Mr O’Shannessy

SOLICITOR FOR THE RESPONDENT:

Adams Leyland

Orders

That the husband and the wife forthwith do all such things and sign all such documents as may be required to enrol the child L born … November 1992 at the T School, D to commence school there in January 2008.
That by no later than June 2008, or such other time as the parties agree, they attend upon an educational psychologist or some other person with expertise in VCE education requirements to obtain information and recommendations about what school, C born … April 1995 should attend in the future.
That should either party desire to enrol a child in any extra-curricular activity other than those currently undertaken as at the date of these orders, then prior to such enrolment, he or she shall provide the other parent with full particulars of the proposed activity and obtain the written consent for that activity to be undertaken if it requires involvement of the other parent.
That the parents facilitate the children or either of them, spending additional time with the other parent should the child or children so request subject to the following conditions:
(a)such request shall be conveyed immediately by email or SMS message to the other parent along with any relevant information about the surrounding circumstances (if any), discipline and behavioural issues that may have given rise to such a request and details of any difficulty and/or inconvenience that granting such a request would create; and
(b)the parent receiving the request shall agree to facilitate the extra time unless satisfied that the request of the child is being made to avoid the consequences of his behaviour, in which case, the parent receiving the request shall tell the child it is inappropriate to agree and, subject to the foregoing, each party should thereupon do all things necessary to give effect to the request.

THAT BY CONSENT IT IS ORDERED:

That the Orders of the Family Court at Melbourne made 7 May 2007 be discharged.
That the parties have equal shared parental responsibility for the children L born … November 1992 and C born … April 1995 (“the children”).
That the parents consult and make a genuine effort to come to a joint decision in relation to the children’s:
(a) Health;
(b) Education.
That the children spend time with each of the parents as follows:
(a)Save as otherwise provided for herein and paragraph 7 from 22 January until 24 December in each year:
(i)With the Mother from the end of school on Monday until the commencement of school the following Monday in each alternative week, commencing 19 November 2007;
(ii)With the Father from the end of school on Monday until the commencement of school on the following Monday in each intervening week, commencing 12 November 2007;
(b)With the Father from 4.00 pm on Christmas Eve until after the conclusion of the Father’s family Christmas party on Christmas Eve (provided this is no later than 1.00am) in each year with the father to deliver the children to the mother’s home;
(c)With the Mother from after the conclusion of the Father’s Christmas party on Christmas Eve as provided for in 4(b) above until 4.00pm on 8 January 2008 and each alternate year thereafter;
(d)With the Father from 4.00pm Christmas Eve in 2008 until 4.00pm 8 January 2009 and each alternate year thereafter;
(e)With the Mother for four hours on Christmas Day in 2008 and each alternate year thereafter at times as agreed between the parties and failing agreement from 4-8pm;
(f)With the Father for two weeks commencing 4.00pm on 8 January 2008 and each alternate year thereafter;
(g)With the Mother for two weeks commencing 4.00pm 8 January 2009 and each alternate year thereafter;
(h)From 5.00 pm on the Thursday before Good Friday until 5.00 pm on Easter Sunday in 2008 and each alternate year thereafter with the Father and from 5.00 pm on the Thursday before Good Friday until 5.00 pm on Easter Sunday in 2009 and each alternate year thereafter with the Mother;
(i)With the parent the children are not living with on their birthday for a period of two hours as agreed between the arties and failing agreement, from 4.00 pm to 6.00 pm;
(j)From 5.00 pm on the Saturday before Mother’s Day until 5.00 pm on Mother’s Day with the Mother in the event the children are not otherwise living with the Mother;
(k)From 5.00 pm on the Saturday before Father’s Day until 5.00 pm on Father’s Day with the Father in the event the children are not otherwise living with the Father;
(l)At any other times as the parties may agree upon.
That in the event the children would ordinarily be living with the Father on the following dates pursuant to paragraph 5 herein, the “live with” arrangements be suspended and the children live with the Mother on these dates as follows:
(a) On 15 December 2007, from 10.00 am until 10.00 pm;
(b)From 12.00 pm on 1 January 2008 until 5.00 pm on 4 January 2007;
(c)On the weekend that the Mother’s family have their Christmas celebration in each year provided the Mother gives the Father no less than one month’s notice of this date, and it does not fall on the Father’s Christmas time herein.
That in the event the children would ordinarily be living with the Mother on the following dates pursuant to paragraph 5 herein, the “live with” arrangements be suspended and the children live with the Father on these dates as follows:
(a)From 10.00 am on 8 December 2007 until 5.00 pm on 12 December 2007.
That save as otherwise provided for, for the purposes of the time that each parent spend with the children as set out above the parties shall have handover through the school or otherwise handover shall take place at an agreed location or otherwise the husband shall collect and/or return the children to/from the wife’s residence.
For the purposes of handovers facilitated by school, any items required to move between the households to be delivered for Father’s time to the A property and to be delivered for the Mother’s time to her home or as she requests.
That the Father and Mother be able to communicate with the children by telephone at any reasonable time when the children are otherwise not living with them. The children be permitted to telephone the Father and Mother whenever they wish.
That the Mother, her servants and agents be and is hereby restrained from attending the Father’s home.
That both parties, their servants and agents be and are hereby restrained from using corporal punishment on the children.
That the parties each be and are hereby restrained from denigrating the other party to or in the hearing of the children or allowing any other person to do so.
That each parent shall ensure that the children attend all extracurricular activities that occur when the children are living with them and if either parent is unable to facilitate the children’s attendance, they shall advise the other parent by telephone no less than eight hours or as soon as possible before the time of the scheduled activity and the other parent be at liberty to take the children to their scheduled activity.
(a) That in the case of the parents being unable to reach agreement as to medical treatment proposed for either of the children, the parties be required to consult with the child’s treating paediatrician or treating specialist and follow his, her or their recommendation;
(b)That the children shall attend the F Clinic except in case of an emergency or if the clinic has no appointments available for 24 hours;
(c)That each parent keep the other informed of any specialist attendance or appointment before such appointment and as soon as practical after such appointment is made.
(d)That each of the parents be at liberty to attend upon any specialist appointment.
(e)That save in emergency each parent inform the other and consult the other prior to seeking referral to, or the children attending upon, a medical specialist.
That each party provide an authority to the other to enable the other party to be able to request and access educational information from the children’s school.
That each parent be at liberty to attend all school events to which parents are ordinarily invited.
That each party notify the other as soon as practicable of any significant illness suffered by the children or wither of them or of any admission by the children or either of them to hospital whilst in their care.
That each party shall keep the other advised of their current address and telephone number at all times and advise the other within 7 days of any changes thereto.
That the parties do all such things and sign all such documents to arrange personal counseling for C, with such counselor to be as nominated by the Family Consultant, the costs of such counseling to be shared equally between the parties.
That the parents reduce their parental conflict by attending counselling and / or mediation at the Family Relationship Centre to strengthen their co-parenting relationship for such period as determined by the Counsellor and discuss specific issues about their sons as required; about i) education; ii) medical treatment; and iii) extracurricular activities.
That leave be granted to provide to the counselor referred to in paragraphs 18 and 19 herein with a copy of the Family Report dated 10 October 2007.
Pursuant to S65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.
That all extant applications be otherwise dismissed and all proceedings be removed from the list of cases awaiting a hearing.

IT IS CERTIFIED

That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

NOTATION:-

1. That each parent will communicate directly and promptly with the other parent about matters concerning the children unless they are unavailable when their partner may communicate in their place.
2. That each party will be flexible in accommodating family events of the other party that the children wish to attend that fall during their time with the children.

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

FAMILY COURT OF AUSTRALIA AT ALBURY

FILE NUMBER: MLC3382 of 2007

MS KIRKLAND

Applicant

And

MR GRANGER

Respondent

REASONS FOR JUDGMENT

This is a parenting dispute between parties who have long been separated but who for 10 years have muddled through shared parenting arrangements. The word “muddled” was used by the family consultant without intending to be denigratory of the parties. They have done their best and in most circumstances, reached agreement usually with the assistance of various professionals. It seems however that they have now hit a brick wall and to a very large degree, sought assistance of the Court.
There are four particular issues that they have put before me. They are:
(a)the question of whether a decision should be made for 15 year old L and 12½ year old C to leave the school that they are currently attending and start in 2008 at the local Catholic school. Within that dispute, there are a number of sub-plots including questions about whether both children should move or just one. There are questions of whether the decision to move should be made at all or whether the parties should meet with some other professional in June 2008 to endeavour to determine the matter themselves as parents. To effectively refuse the change at this stage is effectively making a decision that one party wants;
(b)whether a computer game system known as “X-Box” of which there are two in the husband’s household, used by the children C and L, should be divided up so that each house has one such machine. Within this dispute there is a sub-plot as well in that the father wants an order made that he acquire a new X-Box and provide it to the mother. Another potential sub-plot is whether I should consider allowing the children to carry the X-Box equipment backwards and forwards between the homes and order the parents to facilitate that;
(c)whether the parents ought to be allowed to organise extra-curricular activities without consultation and agreement of each other and thereby impose upon the disagreeing parent, the responsibility of ensuring during his or her week that the children participate in those activities; and
(d)whether there ought to be a clause in court orders that allows the children the flexibility to leave the home during one parent’s week to go and live with the other parent effectively at the whim of the child or whether there should be a policy under which those variations can only occur on a consensual basis of some type.
Although this looks like a relatively modest dispute, it is important to note that the parties commenced the proceedings with a significantly different and greater dispute of a more traditional nature. There were significant disputes about what time each parent was to care for the children and a variety of other parenting issues. To the credit of the parties and their practitioners, the majority of those disputes were resolved.
At the time that the parties attended upon family consultant Ms B in September, all of the disputes were alive and Ms B had to deal with them. Ms B gave evidence after being told that the parties were down to discrete issues.
Also to the credit of the practitioners and the parties was the fact that notwithstanding their affidavit evidence was substantial, they were able to agree on what material within the affidavits I was to read and they would rely upon. Cross-examination of each party was limited to those issues in dispute.

Factual Background

Of this marriage, there were four children. K is aged 20 years. She is studying and is independent. Although there was some reference in the family report to K, I have not taken her involvement into account.
R (otherwise known as …), died in August 2006 aged 17 years. He died of cancer.
The two remaining children are L who was born in November 1992 and therefore 15 years of age and C born in April 1995 and therefore 12½ years of age.
The parties themselves are both aged 48 years. They married in 1983 and their relationship came to an end in 1996. The father and the mother are both people with tertiary qualifications.
To avoid confusion, I shall refer to them as the mother and the father notwithstanding that they were husband and wife. Each of them has remarried.
The father remarried in 1999. His wife has two adult children who live independently of her.
The mother remarried in 2003 and her husband has two children aged 22 years and 17 years.
The father is a professional in the medical industry but is very much involved in teaching. He said he was a lecturer at a University. His wife is a director of a counselling service.
The mother is also a professional in the medical industry and her husband is self-employed in the maintenance industry.
What is also important to understand in this case is that each party espouses the Catholic faith but each apparently at a slightly different level of adherence. That does not affect these proceedings save for the fact that there are some disputes about inflexibility and rigidity which to some extent may have arisen from those attitudes to their faith.
Each parent is not only a good parent but has had a significant role in the care of these children. Apart from loving and caring for the children, each takes the responsibility of parenthood extremely seriously. It is just that they now seem to have got to the point where they cannot parent without assistance of independent parties and it is very sad that they have had to come to court to resolve what on the face of it looks like a relatively modest dispute.
I shall not deal with the questions of why the parties commenced the proceedings because that would be treading in an area where the evidence was not canvassed and may open up old wounds.
What is clear about the background is that each party was significantly affected by the death of R and that has not brought them closer together nor enabled them to make decisions more comfortably together.

The schooling issue

It must immediately be said that the evidence about the respective curricular of two schools was considered but apart from the parties’ own perceptions and a booklet relating to the T School, I was left with very little information about which school could provide what for the children. I will canvass below just what information I have been able to glean from the papers provided to me by the parties but ultimately, I am not sure that that makes a substantial amount of difference.
In relation to C, the issue is not as urgent as it might otherwise appear because he is about to commence Year 7 or High School having just completed his primary schooling. Is it an appropriate time to move him when so many other children will also be moving and he will be just one of the crowd?
The more pressing issue is the question of L who has just completed Year 9. It is an understatement to say that L has had a troubled background right from the very day that he started school. The parties have had the benefit of extraordinary professional help and because he was a troubled child, the parties reached agreement that he should attend the M School because of its program at that time. The sort of program to which I shall refer, had special advantages for L who on any view, was substantially behind where the parties expected him to be at that time.
What is truly remarkable and must be a credit to not only L but also his parents is that during 2007, apart from settling down, he has shown results that have never been seen before in his schooling life. He has caught up with other students and seems to be in a position where he can excel. Whilst his past behaviour was not only troublesome and difficult, he is now a model student who received accolades for that behaviour.
The question that is urgent in relation to L is whether or not he ought to move schools now so that his entrée into Years 11 and 12 will be smoother if in fact the T School is an appropriate place for him to attend rather than M School or for that matter some other school.

The father’s position

In relation to the schooling, the father’s position was simple. Rather than reject out of hand any change of school for L, the father wanted an order that in June 2008, the parties attend upon an educational psychologist who would assist the parties to determine whether it was appropriate for L to change schools and if so to what school. The husband made it very clear that he was not limiting his options to the T School. What the father proposed was that the parties would be bound to follow the advice of the educational psychologist.

The parties agreed that they had been unable to find an educational psychologist at this particular time and the father’s position was that there was no need to make the change immediately and that the parties should muddle through as they had in the past and ultimately make a parenting decision between themselves.

The mother’s position

The mother’s position was that it was important to get L into a school now in preparation for Years 11 and 12 so that he would be able to fit into an education stream that suited his ultimate needs for longer term life. Her view was that she had examined the T School curriculum and it gave L options that he did not have in the M School.
The mother’s view was that going to the education psychologist in June was too late.

The family consultant’s view

The family consultant was of the view that this was really not a dispute about the syllabus at either of the schools and that I would be unable to determine that issue. Her considered view was that L had an innocent presumption that his parents would work out what was best based upon what he, L, needed. Whether L was amenable to either school or not, the family consultant thought that he would be content provided the school gave him what he was interested in. L expects his parents to create that situation for him. The family consultant felt that L would want his parents to support him in whatever he did and that seemed to be what each party was saying.
However, to change L’s school at this time contained a risk if not a substantial risk, because of the advances that L had made to which I have just referred. Ms B was asked whether she would describe a move as a real risk and she replied that she would.
I inquired of Ms B whether I also had to factor in the attitude of L because his successful integration into any new school, not to mention his continued excellent development, growth and interest in education, depended very much upon his willingness to make it work. Ms B said that she thought that L would be cooperative but that very much depended on whether or not the parties ultimately support whatever concept is either ordered or they arrive at themselves.
The issue for C is a little different having regard to the fact that the risks are not as great and he could move at a later time. The attraction for his movement now is the fact that there will be significant movement of many children from primary school to secondary school and C would have a much better opportunity to fit in with so many other children endeavouring to adapt to change.

The evidence relating to schooling

The mother gave evidence about the behaviour difficulties of L. She asserted that the religious views of the father and his wife were such that she thought them extreme. That in her view, coloured the decisions that the father was making.
The wife said that the M School curriculum is based on an American concept under which the children learn at their own pace. She expressed concern that the work topics were religiously based and the subjects narrow and simplistic. That is evident in some of the annexures to the mother’s affidavit. She also gave an example of a science teaching which would objectively appear to be out of step with modern educational thinking. More to the point, the mother says that M School offers a Year 12ACE certificate and that upon completion of that, a student can apply for tertiary institution admission. She said her inquiries indicated that Melbourne University and Monash University would not grant access on the ACE certificate. The school has been conscious of the problem and there is now a certificate that can be obtained through Australian Christian Academy in Queensland. In a document headed “[M School] ‘Options and Pathways for Post-secondary Education’”, the school talked about students advancing to Year 12 “so that they can plan for tertiary education”. The school’s advice to parents has been that students had to be aware that planning for Year 12 “should begin in middle high school”.
The difficulty with this evidence is just exactly what it means. If it is understood simplistically, a Year 11-12 student has to undertake some other path while doing the M School studies to obtain recognition in Queensland to then hope to get into a tertiary institution. Just whether that imposes not only a burden on the student as well as a restriction, I do not know. What recognition a Melbourne or Sydney tertiary institution might give the Queensland-recognised certificate seems to me to be also unclear.
When questioned about this same subject, the father said he was not “privy” to the information.
The mother tendered the T School in D 2008 course selection guide. The mission statement acknowledges the religious base of its teaching programs. The Year 10 curriculum is prefaced by the statement that it aims to provide a breadth of subject choices and allows students to acquire the requisite skills and knowledge for the successful transition in to Years 11 and 12. That is followed by this statement:
Students selecting subjects for Year 10 need to carefully read the Elective Unit Information and ensure they choose electives that provide them with a general study program to keep their VCE options open.
The philosophies of the two schools seem to be therefore the same. Parents need to plan for the transition into VCE or Years 11 and 12. The T School statement about choosing subjects to keep options open is a clear message to parents to discuss options with their children and decide early what they wish to study in Year 11 and 12.
The mother was cross-examined about this and agreed that L’s state-assessed educational capacity in mathematics and English was generally within parameters. The father’s counsel focussed on putting L’s current settled progress at risk. The mother’s response was that it was not at risk and that L would cope. She disagreed with the husband on this subject. His view is that L is at substantial risk.
On the subject of the father’s view that both mother and father should see and obtain expert advice during 2008, the mother said it was a potential solution but she wanted it done now. She strongly disagreed that a move by L which would mean a start at a new school at the commencement of Year 11 would only minimally disadvantage him.

The father’s evidence

The father said that the mother had changed her mind again about school and had consistently undermined teachers to the children telling them it was up to them to decide where they wanted to attend school. Having watched and heard the mother even if that was happening, I could not see anything other than her focus being on the need to decide which school would provide the best VCE program for both boys. My perception is that she was very education-focussed.
When questioned about L having to change to a different system by transferring to what counsel described as a conventional high school, the father agreed that it was different. It was put to the father that to change his educational environment in Year 11 rather than now it would be difficult for L to adjust and to rise to his potential. The father said that if L was ready in Year 10, he would cope. He added that he was told by L’s paediatrician not to move him from the school. I was not told of the context in which that advice was given.

The evidence of the family consulatant

Ms B gave evidence by telephone having completed a family report.
On the subject of changing school, she had little to say. When she saw L in September, he was focussing on issues other than schooling. She said of his views:
Having initially asserted, quite plausibly, that he was settled at [M] school and would stay there, later [L] said that he was more amenable to changing to [T School] in Year 10 after discussion with [the mother]. This was not a dramatic change in view because earlier [L] said that he would change schools if necessitated by his desired career; and he expected both parents to support this.
Ms B opined:
[L] and [C] should attend a school which furthers their best interests academically in preparation for later life and where they will thrive and be happy. If the [M School] curriculum will support [L]’s further studies towards his desired career then perhaps he should remain there as he has settled. [C] however seems to be unsettled for reasons not entirely clear; so moving him to [T School] at some point may be beneficial. A determination or parent agreement incorporated in final court orders may alleviate the family of ongoing uncertainty and distress about schooling.
Ms B was cross-examined. She saw an advantage to moving before Year 11-12 but there was also a real risk that the good progress of L might stop. However, she said that he would be amenable to either school if it gave him what he thought he wanted. Either way however, L wanted his parents to support whatever he did. Ms B said that L had an innocent presumption about his parents working out matters for him based upon his need.

Summary of the school issue

If one looked at this decision as it would be faced regularly by parents, I have evidence that:
(a)there are probably more options at T School, in D than M School;
(b)there may be some problem about the M School course but with additional input from the school, the difficulties could be overcome;
(c)L is looking to his parents to assist him work out a course that he would want to undertake and he wants their positive support. Having said that, L has consistently said that he would change schools but he currently understandably, has no career path in mind other than a vague desire to do something with technology;
(d)whilst L may have that positive frame of mind about the courses, there is a real risk that the progress made in 2007 might stall if he does not handle any possible change of school or even transition from Year 10 to Year 11 regardless of when it occurs.
One way of looking at it is to say that from a parental perspective, L very much needs to be involved and needs the support of his parents. If he was positive about the course he wanted to do and the short and long term options were better at T School, D, the only question would be whether he would cope with and be positive about, the change of school now as against the end of 2008.
In reality therefore, this is a parenting dilemma but one that parents face all of the time.
Mr O’Shannessy for the father said that the advantages were theoretical but that is what all parents face constantly. His submission was that the Court should not interfere.
Ms Boyle for the mother said that the dynamic between the parties was the fundamental difference in the households. One household was flexible and the other was not. That meant that agreement was unlikely. She said that an impasse required court intervention.
The entrenched positions continued despite the espoused desire of both parents to achieve what was best for L. An impasse meant delay. The question is whether the delay would cause or create the very problem of the entry of L into a course which would be to his advantage. On the other hand, if a decision is imposed upon either parent, would it have a negative effect for the person who was disappointed? To impose a decision might militate against the concept of support required by L to continue on with his current excellent attitude and results.
Am I able to stand in the shoes of the parents then and impose something which may affect either or both of the concerns that I have just raised?

Discussion

Section 60B(1) says:
(1)      The objects of this Part are to ensure that the best interests of children are met by:
(a)      …
(b)
(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.
Section 60B(2) provides that the principles underlying the objects are that (except where it is or would be contrary to a child’s best interests):
(a)…
(b)…
(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
Under the provision in Part VII relating to parenting agreements, parents are encouraged to:
(a)to agree about matters concerning the child; and
(b)to take responsibility for their parenting arrangements and for resolving parental conflict; and
(c)to use the legal system as a last resort rather than a first resort; and
(d)to minimise the possibility of present and future conflict by using or reaching an agreement; and
(e)in reaching their agreement, to regard the best interests of the child as the paramount consideration.
The provisions of the Act therefore encourage parents to make decisions relating to the bests interests of their children.
If parties cannot agree, they can turn to the Court to seek a parenting order. Section 64B(2) says:
(2) A parenting order may deal with one or more of the following:
(a)…
(b)…
(c)the allocation of parental responsibility for a child;
(d)…
(e)…
(f)…
(g)…
(h)…
(i)…
Section 64B(3) says that a parenting order may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child.
In s 4, “major long-term issues” is defined to include issues of a long term nature about a child’s education. Interestingly, the section refers to education as to both the current and future issues.
There is little doubt therefore that an impasse between parents relating to both current and future education is a matter within the definition of parental responsibility and one which should the parties not be able to agree upon, a court should step into their shoes. The Act gives no guidance as to how that decision-making process is to occur save that any decision must be in the best interests of the child. Section 65D(1) says that subject to matters that are not relevant for this proceeding, the Court may make such parenting order as it thinks proper.
In VR & RR (2002) FLC 93-099, the Full Court held that the word “proper” gave a judge a very wide discretion but that discretion was still very much governed by the provisions now incorporated in s 60CA to the extent that any such discretion could only be exercised if it was in the bests interests of the child to do so.
In my view, the starting premise is that a court should only interfere with parental responsibility where it is important for the child’s best interest that it do so. Carmody J said in W & G (No. 2) (2005) FLC 93-248:
Judicial interference in the performance of an aspect of parental responsibility shall occur only as a last resort or where the welfare of the child will clearly be advanced by the order being made.
Carmody J went on to make a rather profound statement that applies in this case. He said:
It is important to remember, however, that best interests are values not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions on the same body of evidence. They necessarily involve predictions and assumptions about the future which are not susceptible to scientific demonstration of conclusive proof. Predications, and even intuition and guess work, can all play a part in the making of a parenting order. There is no single or simple answer and there is always a real chance, despite best efforts and the search of the best interests’ solution, of getting it wrong.
These are the very concepts that I raised with the parties throughout the hearing of this matter. Each approaches the issue differently, and in one way or another, they had handed that responsibility to me. Mr O’Shannessy as I have pointed out, argued that I ought not make any decision now about changing school but in reality, to do that is in fact the very decision that the father wants.
In this case, the question is whether there is a clear need in the interests of L to not only interfere with parental responsibility but to positively decide that as a value judgment, it is in his best interests that he have the opportunity should it arise to undertake a course at the T School, in D which is probably not available at the M School.
I find that notwithstanding all that has been agreed between the parties in the past, it is unlikely that they will be able to agree on this parental responsibility and if I waited until for example June 2008 as suggested by the father, I would still have to then impose a default position whereby one party or an independent health professional made the decision for the parties if it needed to be made at all. To make an order delegating the parental responsibility at that point in time seems at odds with my capacity and responsibility now. I have taken into account that the father wishes to approach a professional to seek guidance about which school should be attended. I understand that for the father, that means that he wants to negotiate the position as has occurred in the past before a decision is made. In my view, that is at odds with what is in the best interests of L for his future.
I find that the potential delay in making the decision may disadvantage L in a significant way because:
(a)if he was so minded to take a path requiring a particular set of subjects for Years 11 and 12 which he had not done in Year 10, he may be prejudiced in his education; and
(b)the uncertainty of whether or not he changes school may cause him to lose focus and become unsettled.
The opposite of any disadvantage is to give L the opportunity to expand his horizons. Year 10 at T School, D is a prelude to Years 11 and 12. I cannot say that I feel confident about the same pathway for M School. On balance therefore it is the appropriate course that a parent would take to change schools at this point in time.
I do not take the same view about C. Although it may be said that the best time is now to move C because there will be a substantial student movement from primary school to secondary school, the urgency does not seem to me to be present. It may be that the parents upon negotiating will not agree on C’s future education but adopting the words of Carmody J, it is not clear that there needs to be any interference yet. I do not propose to make the orders sought by either party about C.

The X-Box

The second issue related to the X-Box. There are two of these machines. I should only make a decision which is in the best interests of the children. Ownership of these items was a matter of argument but it seems irrelevant. The use of the items in the past seems also irrelevant as I am to determine this on some subjective view about what each child needs. The absurd situation here is that on either party’s proposal, the children would have access to an X-Box. At the mother’s home, they have no X-Box and even if the father bought a new one, it apparently would not have loaded on to it, the same computer games as the one at the father’s home. In addition, rather than have one each, they would have to share.
An alternative that did not seem to be favoured by either parent was for the box or boxes to travel with the children. I keep in mind that these boys are not babies. The father’s response to my suggestion about the travelling X-Boxes was that the hard drive was very fragile and could be damaged. I found that explanation rather odd having regard to one dispute about which the parties expend a lot of litigation energy. It was as follows. During this very circuit, L had a birthday party at his mother’s home. He wanted his X-Box there. The mother’s evidence was that L telephoned the father several times during the week to get confirmation that the X-Box would be delivered. The mother’s view was that L was concerned that the father would not be faithful to his promise. The father’s evidence was that L did ring but the mother was heard in the background prompting him. My impression was that the mother’s view was that this was part of the father’s autocratic way of doing things. The father’s view was that the mother was unwelcome in his household and this was an example of her interference.

L and C saved some money from sources which were even disputed by the parties but whatever it was, they bought an X-Box between them. The father upgraded it at his expense. R had been given an X-Box by his work friends. On R’s death, one of the boys took over possession of the X-Box. Notwithstanding both brothers put money into the one X-Box, the father’s evidence was that each boy now uses “their” own X-Box and seeks permission of the other to access that other brother’s machine.
It can hardly be an issue related to some financial benefit or advantage, because second hand X-Boxes are worth very little. Jumping forward to what ultimately happened, it appears that the father delivered the X-Box as promised for L’s party but then attended again at the mother’s home after the party to collect it. It was this behaviour that made me wonder about whether this issue was about the interests and welfare of the children or the possessory rights of property argued by the parents. I suspect it is the latter.
On the evidence, I would not be prepared to find that the various conversations between L and his father were as described by either parent.
Turning then to the respective proposals and their relevance to any parenting issue associated with the best interests of the children, I am mindful of the provisions of s 65D(1) about what is proper. Apart from considering a situation where these children share the items acquired by themselves or their parents, I cannot see how it is proper for the Court to become embroiled in a dispute which should be sorted out between the parents and the children. If the children wish to have “their” particular X-Box at the mother’s home and the father will not permit it or them to travel, I suspect the respect of the children for their parents will ultimately be diminished. Accordingly, I propose to make no order about the X-Boxes.

Extra-curricular activities

The parties differ about whether the parents should organise activities for the children which in turn would impose a parenting burden on the other parent. Notwithstanding these parents have muddled through, this issue highlights the difficulty of shared care of children where there is not a common policy about activities, routine and discipline.
C is very active in soccer to the extent that he is currently being considered for district representation. That involves significant participation which in turn, places burdens on the parents. It is the mother who is more enthused about the sport than the father but to his credit, the father assists.
The parties’ respective positions were set out in their evidence. The father said that he wished to make it clear that he had no desire to discourage the children from participating in extra-curricular activities and he supported them doing things that they enjoyed and in which they excelled. His concern however was that when the children expressed an interest previously, the mother immediately enrolled them without regard to activities to be undertaken during the week that the children were in his care. He sought some form of consultation if there was going to be any new activity so that there could be discussion to ensure there was to be no conflict with any existing activity. He added that there were times where the children had expressed concern about too many activities and had asked him to speak to their mother. He also expressed concern that if he was negative about an activity whilst the mother was positive, he appeared to be the “bad guy” if he declined to cooperate.
The mother’s position was that she had always attended events but she gave an example where whilst the father was responsible for the care of the children, he failed to take them to an award night at which L won two awards. She gave another example of him missing a school concert. The mother also said that she felt it appropriate for the children to participate in two extra-curricular activities each and had recently been asked by C about doing martial arts in 2008 but having asked his father, was told that he had to chose between martial arts and soccer.
It can be seen that the evidence about this issue is modestly scarce. The starting point should be that parents fulfil their duties and meet their responsibilities concerning the care and development of their children.
The mother’s argument is that the children want to do these things and that it is good for them. The father’s argument is that whilst he endorses the mother’s sentiment, it ought not to be to the inconvenience and disruption of his household. In evidence, it was apparent that the father prioritises activities and also withdraws a child’s privilege of attendance at such an activity for disciplinary reasons. The parties have disparate views about discipline. Although I could subjectively determine the appropriateness or otherwise of particular discipline policies, that seems to me to fly in the face of s 63B if there is no welfare issue at stake requiring intervention by the Court. The difficulty is whether it is appropriate to criticise and/or disagree with either parents’ household management or care of the children.
It is important for the sake of the children that neither parent burdens the children with activities that cause difficulty in the other parent’s household. If that were to occur, that is, one parent ignoring the impact of a decision on the other’s household, it could give rise to the risks that:
(a)a child may become overburdened with activities;
(b)a child may be disadvantaged because a parent may not be able to physically carry out that activity;
(c)a child may see the inability or for that matter reluctance, of a parent to carry out an activity, as being unreasonable or unfair thereby prejudicing the parent/child relationship;
(d)confusion about events, equipment and parent involvement can cause embarrassment and loss of self-esteem for the child;
(e)any cooperation and goodwill between parents is strained.
Although not a direct result of a dispute about extra-curricular activities, the example given by the wife about missing the award night can give rise to potential problems and complaints to parents by children and criticism by one parent of the other.
In cases where the parents have formal shared care but tend to parent in parallel way by each doing things in their own way, if a court is to interfere, it is important for the best interests of the children that a court endeavour to permit activities that are likely to be common to both households and accepted positively by the parents. In this case, the evidence does point to the fact that there is flexibility in the mother’s household but more rigidity in the father’s household. That is not a criticism of the father because these children have and will continue to enjoy, the benefits of the rich tapestry of life provided by both parents.
Hence, if there is to be an activity which spans both weeks and requires input from both households, these children should only participate if there is agreement. Therefore, I agree with paragraph 5 of the husband’s proposed orders. To give effect to that, an order should also be made that each parent say to the child when asked by a child about participating in an interest, it is a matter for discussion between mother and father.

Flexibility of movement

The final issue related to the flexibility of orders for a child to be able to seek and obtain, extra time in the home of one parent or the other. The mother’s position was:
That the parties shall facilitate the children, or either of them, spending additional time with either parent if the children or either of them so wish, and the parties shall keep each other advised of same.
The father’s position was:
That [L] and [C] be able to spend extra time with the other parent occasionally as desired, where mutual agreement by the parents beforehand.
There are a number of issues at play here. The mother’s evidence was that arrangements have been made that the father requires that any time he does not have, be compensated for or replaced. That seems to be the situation whether it is the child’s desire or if the mother organises a special event during the father’s time with the children. Conversely, the mother seemed quite flexible about the issue. It is important to recognise that these two boys are teenagers and not very young children.
In her family report, Ms B said that L thoughtfully explained that he would be “really sad” if he had to live mostly with either parent and spend much less time with the other parent. She quoted C as saying that he was scared that the judge would interfere with the current arrangements and that that would be a disaster and he would run away. The message was clear that C did not want the current arrangement interfered with and that is exactly what the parties have agreed upon.
Ms B said that C confirmed that the father would not allow extra time usually whereas the mother would. He expressed a concern that his father avoided an outright refusal by delaying giving an answer.
Ms B opined that introducing occasional flexibility to vary the week-about arrangements may be helpful to the children on the basis that being able to move in such a way would give a beneficial message to the children. This was particularly so where both boys expressed needs to spend as much time as possible with each parent. Ms B therefore recommended that they be able to spend extra time with their other parent occasionally as desired.
All of that is really commonsense. As the family consultant said, each parent needs to vary their current parenting policy. In my view, to avoid the risk of either child “voting with their feet”, each parent needs to consider the impact of their way of doing things on the children in the other parent’s household.
The difficulty for the father is in the concept of flexibility. He insisted that he had a household to run and that it was inappropriate for the good management and stability of the household to be disrupted. He also has concern that discipline in his house could be circumvented by too flexible a situation. That is clearly reflected in his proposal. It flies in the face of the family consultant’s recommendation but equally it is sensible for the parents to have control over the children not the other way around.
In my view, it is in the best interests of these children that they do have flexibility. I intend to order that if either L or C requests time with the other parent such being made verbally to that parent, then:
(a)such request shall be conveyed immediately by email or SMS message to the other parent along with any relevant information about the surrounding circumstances (if any), discipline and behavioural issues that may have given rise to such a request and details of any difficulty and/or inconvenience that granting such a request would create; and
(b)the parent receiving the request shall agree to facilitate the extra time unless satisfied that the request of the child is being made to avoid the consequences of his behaviour, in which case, the parent receiving the request shall tell the child it is inappropriate to agree and, subject to the foregoing, each party should thereupon do all things necessary to give effect to the request.
In any parenting order, the best interests of the child are the paramount but not the only consideration. The stability of the respective households is an important consideration.
To assist in the determination of what is in the best interests of the children, s 60CC provides mandatory guidance. However, many of the factors here do not assist in respect of the determinations because, apart from their personal relationships with one another, each of the parties is a competent, capable and loving parent. There is no difficulty here with any of the primary considerations set out in s 60CC(2).
I have taken into account the views of the children and given them significant weight. The relationship of the children with each parent is good as is evidence by what they told the family consultant. Whilst there is some reservation about the rigidity in the father’s household, it could not be said that there is not a willingness to facilitate and encourage the relationship of the children with their mother. The mother has also shown that willingness.
There is no practical problem about implementing these orders as the parties live close to one another. Each parent has the capacity to provide for all of the needs of the children. There are no cultural issues involved in this case.
There are no family violence issues here of any relevance.
I have made much comment about the schooling issue and the factors at play however it is important in my view for L to have some certainty in his life now without the parties having to come back to court again. Whilst the potential for that is still there for C, I would hope that the parties take the course of action suggested by the father and begin planning now. If he showed the aptitude to go on to tertiary education and there is a modest risk that he could not do so in his current school, the parents would be well advised to do what the T School, D suggests which is get in early to determine the pathway. That should be done without resort to the Court but if that occurs, the parties should only do so after all alternative dispute resolution systems have been exhausted.
Accordingly, I propose to make the order I have indicated.

I certify that the preceding One Hundred and One (101) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 17 December 2007