Lee and Zaplan

[2015] FCCA 3258

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEE & ZAPLAN [2015] FCCA 3258

Catchwords:
FAMILY LAW – Interim arrangements for child aged 5 years – nature of interim hearing – orders pending final hearing scheduled for May of 2016 – family report ordered but not as yet to hand – significant disputes of fact – allegations of family violence – presumption of equal shared parental responsibility – which school should child attend pending final hearing – meaningful parental relationships – section 60CC factors – best interests.

Legislation:

Family Law Act 1975, ss.4AB, 60CA, 60CC, 61DA

Goode & Goode (2006) FLC 93-286
re G: Children’s Schooling (2000) FLC 93-025
Eden & Eden-Proust [2011] FamCAFC 138

Applicant: MR LEE

Respondent: MS ZAPLAN

File Number: ADC 2138 of 2015

Judgment of: Judge Brown

Hearing date: 3 December 2015

Date of Last Submission: 3 December 2015

Delivered at: Adelaide

Delivered on: 8 December 2015

REPRESENTATION

Counsel for the Applicant: Ms Horvat

Solicitors for the Applicant: Rudall & Rudall

Counsel for the Respondent: Mr Charman

Solicitors for the Respondent: Ian Charman & Associates

ORDERS

UNTIL FURTHER OR OTHER ORDER

1. The child X born (omitted) 2010 live with the mother.

2. The father spend time with the child X as follows:

   (a)each Thursday, Sunday and Tuesday of each week between 10:00am and 5:00pm commencing on 10 December 2015; and

   (b)on Christmas Day 2015 between 10:00am and 5:00pm.

3. All handovers other than those which occur at school pursuant to order 5 hereof take place at the (omitted) Police Station.

4. The mother is authorised by these orders to enrol the child at the (omitted) Primary School at the commencement of the school year in 2016.

5. The father spend time with the child X commencing Term 1 in 2016 from after school on Tuesdays and Thursdays until 6:30pm with the father to collect the child from the school and return the child to the mother at the (omitted) Police Station.

6. Further consideration of the matter is adjourned to 24 March 2016 at 9:30am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2138 of 2015

MR LEE

Applicant

And

MS ZAPLAN

Respondent

REASONS FOR JUDGMENT

Introduction

1. This judgment relates to appropriate interim arrangements for the care of a five year old child, X born (omitted) 2010, until the final hearing, which is currently scheduled for 26 & 27 May 2016.

2. In conjunction with the final hearing, it has been ordered that a family report be prepared.  This report will examine X’s relationship with her mother, Ms Zaplan (also known as Ms Zaplan) and her father, Mr Lee.  The report is expected to be to hand on 7 March 2016. 

3. The father seeks that X should live mainly with him or failing that, in a shared care arrangement.  The mother asserts that she has always been X’s primary carer and that the father is a violent and alcoholic person.  On this basis, she proposes that X should spend limited daytime periods with her father and continue to live mainly with her, which has been the situation since the parties separated in May of 2015. 

4. Given this summary, it is apparent that the parties’ positions are literally poles apart.  The family report is likely to investigate issues relating to the following:

   ·To whom is X more closely bonded and where does she derive her sense of emotional security;

   ·How can X have a meaningful relationship with each of her parents, given the mistrust between them and their different cultural orientations and backgrounds;

   ·In this context, is the mother capable of supporting a proper level of relationship between X and her father;

   ·What risks, particularly in terms of exposure to family violence and alcohol usage, do each of the parents pose for X.

5. Notwithstanding the absence of this report and the light it is likely to throw on the many controversies of the parties, the court, at this interim stage, must make the orders it considers will serve X’s best interests until the final hearing.  It is at the final hearing stage that the court will put in place the arrangements, which it thinks will be best for X, in the medium to long term. 

6. At the interim stage, the first task for the court is to outline the matters on which the parties agree and those on which they disagree.  In so doing, the court must bear in mind that this is a truncated hearing, which does not allow it to make any concluded findings of fact, where there is unequivocal controversy.  Necessarily, the final hearing will provide the forum for a more exhaustive examination of the parties’ respective positions. 

Agreed background

1. The father was born in Australia in 1968.  He has retired from the workforce due to a knee injury, sustained by him in early 2011.  Previously, he was a (occupation omitted) employed by (employer omitted). 

2. The mother was born in (country omitted) in 1970.  She remains a (nationality omitted) citizen, but is entitled to permanent residence in this country.  X was born in Adelaide and has lived her entire life in this country.  The parties met, online, in 2007, following the breakup of the father’s first marriage.  Over a two year period, they communicated by email and webcam.  They became close.

3. In February of 2009, the father travelled to (nationality omitted) to meet the mother in person.  They married, in (country omitted), on (omitted) 2009.  The mother was able to obtain a visa to enter Australia in October of 2009.  The father paid all the expenses related to the mother’s migration to this country.

4. The mother has a child from an earlier relationship.  She is Y.  She came to Australia under the father’s sponsorship.  Y is now an adult, studying (course omitted) at (school omitted).

5. At the time of the mother’s arrival in Australia, the father was still working for (employer omitted), on a full-time basis.  In early 2011, he sustained his injury, which caused him considerable physical difficulties and emotional stress.  Significantly, the parties both agree that, following this injury, Mr Lee began to drink alcohol heavily.

6. The father ceased his employment, with (employer omitted), in December of 2014.  Prior to that time, he was in receipt of WorkCover payments.  Currently he receives social security and hopes to qualify for a disability support pension sometime in the future.

7. The mother obtained employment, in 2011, as a (occupation omitted) at a (employer omitted).  Initially, she worked 15 hours per week.  It is undoubtedly the case that there were many stresses in the parties’ relationship following the father’s significant injury. 

8. During the parties’ relationship, they lived at a property owned by the father at Property P.  When the parties finally separated, on 15 May 2015, the mother left this property with X.  A few days prior to this, a case worker from Families SA visited the Property P property in connection with a report that X was at risk.  At this time, X attended the (omitted) Kindergarten, which is near the Property P property. 

9. Since separation, the mother has moved into premises at (omitted), following a period of time living in a domestic violence shelter.  She has enrolled X at a kindergarten nearby.  In 2016, X is due to commence at primary school.  The father wishes her to attend the primary school associated with the (omitted) Kindergarten; the mother wishes her to attend (omitted) Primary School.  Both are state funded schools. 

10. In the difficult circumstances following their separation, the parties met one another, at a (omitted) in (omitted), on 7 June 2015.  It was agreed that X would spend some time with her father on 9 June.  The parties apparently discussed other arrangements for X’s care, but disagree about the content of those discussions and particularly what was agreed. 

11. X was in the father’s care between Tuesday, 9 June and Thursday, 11 June.  On this latter date, the mother attended at the (omitted) Kindergarten and removed the child from there.  The father’s position is that he was of the view that X could live with him for around a week.

12. The father commenced these proceedings on 16 June 2015.  He sought the issue of a Commonwealth Information Order relating to the whereabouts of Ms Zaplan, as he did not know the precise whereabouts of the mother.  He also sought the child’s re-enrolment at the (omitted) Kindergarten.

13. The mother responded to the application on 3 July 2015.  The parties competing applications were first listed for hearing on 31 August 2015.  On this occasion, the parties agreed that X would continue to live with the mother and see the father from 11:00am until 2:00pm, each Sunday.  X was to be exchanged between the parties at (omitted).

14. In addition, orders were made preventing X leaving Australia. Significantly, as matters have since transpired, orders were also made pursuant to the provisions of section 69ZW of the Family Law Act requiring both Families SA and SAPOL to produce records to the court relating to any notifications of abuse relating to X.

Issues in dispute

1. The significant areas of controversy, between the parties, which cannot be definitively resolved at this stage, can be summarised as follows:

   ·Who has been X’s primary carer, particularly following Mr Lee’s knee injury in 2011?

   Ø The father asserts that, prior to his injury, the parties shared parenting duties, however following the injury he became X’s primary carer because his work hours were curtailed and the mother was busy studying English full-time, as well as working;

   Ø The mother disputes this.  It is her case that the father barely changed a nappy and was content to leave parenting duties to her.  She concedes that she worked and studied, but not as extensively as the father contends.  It is her case, that during these periods, X was largely in childcare. 

   ·What was the extent of the father’s drinking and what is his current level of alcohol consumption;

   Ø The mother asserts that the father would drink a carton of Bourbon and Cola each day, as well as excessive amounts of port.  She further asserts that he mixed alcohol with pain killing medication and, when affected by alcohol became aggressive and abusive.  She alleges that he would become physical with X at times;

   Ø The father asserts that it would be physically impossible for him to drink to the extent alleged by the mother.  He denies ever having physically handled X.  Whilst conceding that he had a problem with alcohol, following his injury in 2011, it is Mr Lee’s current position that he now drinks moderately and has regular alcohol free days. 

   ·Why did Families SA attend the Property P home on 13 May 2015;

   Ø Was the attendance secured by the mother’s contrived notification designed to assist her to vacate the home, with X, on the basis of manufactured allegations of abuse, as the father contends;

   Ø Or did the mother attend upon a psychologist, following a referral from her family doctor, who regarded her (the mother’s) reports of the father’s excessive drinking and family violence as matters requiring a mandatory notification. 

   ·What happened following the meeting between the parties on 9 June 2015 and what was agreed then;

   Ø Did the parties agree that X would spend significant periods of time with her father, including for block periods of around a week, as the father contends;

   Ø Or is it implicit that X would return to her mother’s care shortly as the mother contends.

The contents of the documents produced to section 69ZW

a)Families SA

1. Prior to 29 April 2015, no notifications have arisen in respect of X.  On this date, an unidentified notifier indicates that assistance has been provided to the mother to contact a domestic violence gateway service and that concerns have arisen relating to the father’s drinking. 

2. The notifier reports that he/she has been told that the father is a nice person but when he drinks he becomes aggressive.  The notifier goes on to disclose that he/she has been told that X has been shaken by her head, by the father, but was not physically harmed. 

3. Families SA contacted the family, as a consequence of this information, by telephone, on 8 May 2015.  During this telephone conversation, the mother was able to speak to a trainee social worker in (language omitted).  The mother allegedly disclosed to this social worker the following:

   ·The father used alcohol to numb his frustrations and was constantly screaming at her and X and threatening to kick them out;

   ·The father had grabbed X’s hair and shook her head, which was behaviour she could no longer accept;

   ·The father had been in a bad temper for a year.

4. As a consequence of this information, Families SA arranged a home visit on 13 May 2015.  At this stage, both particular and X were at home.  The mother spoke to the trainee social worker, in (language omitted), during this visit. 

5. X was described as being an energetic child, who had a reasonable attachment to both her parents.  X was reported as being safe at the time of the visit.  No evidence was detected of her having suffered any physical harm.

6. In interview, to Families SA workers, the father is reported to have said that he had been diagnosed with depression and anxiety.  In respect of his drinking problem, he reported that he had several dry days recently but could still function after drinking 20 cans, without being like a drunk.  The father currently refutes that he made this statement. 

7. The mother’s concerns are recorded as follows:

   “She and Mr Lee are already separated, but living under the same roof.  For the safety concern, X sleeps with her.  Mr Lee treats X well when he’s not in the impact (sic) of alcohol.  He would be like another person when he’s drunk.  After the incident, X had nightmares and cries during the nights.  She did not expect this, but she has to divorce Mr Lee if he continues drinking.

   Ms Zaplan said she was so frightened and did not know what Mr Lee would do, as it was not predictable.  She believes domestic violence affects her study and work a lot.”

8. The record further indicates that the mother telephoned the (language omitted) speaking social work student, shortly after the home visit had concluded and reported that the father had gone to purchase alcohol immediately following the visit.  The implication of this report is that the father had gained no insight from the Families SA visit about the potential consequences for X, of his drinking.

b)     Police records

1. The police records, which have been made available to me, deal with the period in June, when X returned to the care of her father, prior to the mother retrieving her from the (omitted) Kindergarten.  The mother apparently sought the assistance of the police at this time and they undertook a welfare check at the father’s home.  The police record indicates the following:

   “Child was happy though and no concerns.  Mr Lee appeared genuine but possibly too smooth.  Called Ms Zaplan, obtained her account, she stated Mr Lee was physically assertive with the child (but not such that it constituted an assault on her, just custody issues). States he is always drunk (wasn’t today, nil indications of being alcoholic except for being obese) and hurts child and this was the reason Ms Zaplan left him.  If true, there is genuine reason for the child not to remain in his car but nil sign of any injury on the child.”

c)     Other documents

1. The current proceedings have now been on foot for approximately six months.  During this period, each party has followed the common practice of filing answering affidavit material, which refutes, paragraph by paragraph, what is asserted by the other parent.  In these circumstances, independent documentary evidence, particularly from sources such as Families SA and the South Australian Police assumes some importance.

2. In addition, the father has provided reports from his occupational physician, Dr S and his psychologist, Mr G.  Mr G indicates that he has been treating the father since December 2014 in respect of a chronic pain condition.  He reports as follows:

   “… this process has distressed him psychologically, however I believe that he has the ability to manage the parenting of his daughter competently now and into the future.

   Indeed, he has attended with his daughter on several occasions and displayed competent parenting skills.”

3. Dr S writes as follows:

   “In relation to Mr Lee competency as a parent, I have seen Mr Lee’s daughter on a regular basis when he attends my rooms with her.  She attended a case conference with him and the employer once.  There did not appear to be any inconsistency with his presentation with his daughter here in my rooms and she appeared to be well looked after.

   Mr Lee continues to exhibit good insight and good parenting skills while he is here in my rooms and although he has medical issues which clearly need ongoing management I understand that he has been looked after well by his general practitioner who continues to monitor his general health.  At this stage I continue to monitor his work injury although any further treatment is limited by the compensating authority restriction in relation to the treatment that Mr Lee is allowed to access.”

4. I do not doubt the good intentions of these two persons.  However, I am concerned that they are providing opinions outside the role of their relevant expertise and base their views on limited exposure to Mr Lee and X.  For obvious reasons, the family report, which will include input from the mother, is likely to provide a more helpful assessment of the father’s parenting.

The application legal principles and how they are to be applied in the context of an interim hearing

1. Part VII of the Family Law Act 1975 deals with orders relating to children. Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration [Family Law Act section 60CA].

2. The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC.

3. Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a)(b) namely:

   (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. 

4. As a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

5. Accordingly, one of the main focusses of the Family Law Act is on protecting children, who have been exposed to family violence or some other form of abuse or neglect and who may be at risk of further such exposure, in the future. 

6. Fundamentally, this task requires the court to assess the risk to a child, in both physical and psychological terms, of interacting with a parent who has behaved in a violent way previously.  As such, the task is both retrospective and prospective. 

7. In this context, it may also be necessary for the court to assess the impact on the other parent, in psychological terms, of the child interacting with a parent, who is perceived, by him or her, as having behaved violently or inappropriately on past occasions.

1. Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. 

2. Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.

3. The same legal principles must be applied at both the interim and final hearing stage.  The difference being that interim hearings do not determine long-term arrangements for children, whereas final hearings do. 

4. Given the importance, which the applicable legislation places on the co-involvement of parents in their child’s life and development there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].

5. The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents. 

6. The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].

7. The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].

8. Significantly, at the interim stage, the court has a discretion not to apply the presumption if it is considered that it would not be appropriate to do so in all of the circumstances prevailing [section 61DA(3)].

9. In Goode & Goode[1] the Full Court outlined the pathway to be followed, at the interim stage, by the court in determining arrangements for children.  This pathway can be summarised as follows:

   ·consider the section 60CC matters relevant and, if possible, make any relevant findings of fact;

   ·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:

   Ø there are reasonable grounds to believe abuse or family violence has occurred;

   Ø or, in interim proceedings only, if it would not be appropriate to apply the presumption. 

   ·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters.

   [1]  See Goode & Goode (2006) FLC 93-286

Consideration

1. The mother’s case is that she and X have been exposed to family violence, which had its origins in the father’s heavy drinking.  In these circumstances, she asserts that the presumption of equal shared parental responsibility is rebutted and it would be in X’s best interests to live with her because she (the mother) has been the child’s main provider of care and any major change in X’s circumstances is likely to be unsettling for her. 

2. The father’s case is that the mother has exaggerated her claims of his heavy drinking and fabricated allegations of family violence against him to enable his removal as a significant figure in X’s life and care.  It is his case that he has historically been X’s primary carer and therefore it is in the child’s best interests to return to his predominant care.

3. Given the emphasis on protective concerns in the Family Law Act, it is necessary to turn more closely to the particular provisions, which relate to family violence, particularly how that concept is defined and how children are taken to have been exposed to it.

4. Family violence is defined by section 4AB(1) of the Family Law Act.  It means:

   “violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”

5. Interestingly, the legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:

   ·An assault;

   ·Repeated derogatory taunts;

   ·Stalking;

   ·Unreasonably denying a family member financial autonomy;

   ·Unreasonably withholding financial support needed to meet the reasonable living expenses of the family member concerned.

6. Accordingly, family violence means not only violence which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that unreasonably coerces or controls that person. 

7. Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”.

8. At the interim hearing stage, I am unable to determine definitively whether Mr Lee has exerted family violence, over Ms Zaplan, in the sense envisaged by the applicable legislation and whether X has been exposed to that behaviour. 

9. However, at the interim stage, that is not my responsibility.  Rather, I must consider whether there exist reasonable grounds for me to believe that he has engaged in such behaviour and what should be the consequences of these grounds in terms of interim arrangements of X’s care. 

10. Given the matters identified in the Families SA records, I consider that there are reasonable grounds for me to believe that Mr Lee has behaved in a coercive and controlling fashion towards Ms Zaplan and X has been exposed to this behaviour. 

11. The gravamen of the Families SA record is that X has been emotionally and mentally affected by her father’s behaviour, when he has been intoxicated.  She is reported to have suffered nightmares and emotional disturbance.

12. In addition, the evidence available to me does not indicate that Mr Lee’s alcohol consumption can be regarded as being confined to isolated incidents of use.  Rather he concedes that he has had significant difficulties with his alcohol use in the past.  In my view, these difficulties are confirmed by his disclosures to Families SA, albeit that he now alleges that the case workers concerned misinterpreted him. 

13. In all these circumstances, I have come to the conclusion that the presumption of equal shared parental responsibility is rebutted.  In addition, given the current polarised nature of the parties’ parenting relationship, it appears unlikely that the parties will be able to agree on any workable arrangement for X’s care. 

14. The next task for the court is to consider what are the appropriate interim parenting arrangements, for X, against the criteria delineated in section 60CC, bearing in mind the truncated nature of the hearing and my limited ability to make findings of fact.

15. I accept that X has a warm and loving relationship with each of her parents.  This is confirmed by both the Families SA records and those provided by SAPOL.  It also confirms with the opinions of Mr Lee’s occupational physician and his psychologist. 

16. At this stage, it is not possible for me to discern who of the parties has been X’s primary carer in purely attachment terms.  It seems likely that both have been significantly involved in her care.  It is also relevant, I think, that she has spent periods of time at day care and in her father’s care, whilst the mother has been working or studying.  These are issues, which will be more thoroughly canvassed in the family report. 

17. However, Mr Lee concedes that Ms Zaplan was very significantly involved in X’s care in the first two years of her life.  It is his case that he stepped up his involvement, in 2011, following his work related accident.  This does not seem improbable. 

18. In this overall context, what I consider more important is the uncontested fact that X has been living predominantly with her mother since the parties separated, now around six months ago. In my view, this is a factor which militates there being any significant change in arrangements for X’s care, in the short term, particularly against the background of uncertain and contested evidence [see Family Law Act section 60CC(3)(d)].

19. At this stage, each party is highly critical of the other in respect of his/her parental capacity and the attitude which each has exhibited to the responsibilities of being a parent, thus far.  In particular, the father asserts that the mother has concocted allegations against him, in order to unnecessarily restrict his relationship with X.  For her part, the mother asserts that the father behaved improperly, when he withheld X from her, following the (omitted) meeting on 7 June. 

20. These are difficult issues to determine, at the interim stage.  What is clear however is that, given the parties’ poor and mistrustful relationship with one another, the court needs to put in place a clear regime to oversee the specific time X spends with each of her parents. 

21. The emphasis, in the father’s case, is on the extension of time, which he currently spends with X.  He aspires to blocks of time, which would include overnight time.  The mother is opposed to such a regime because of her concerns about the father’s parental capacity, which she alleges is likely to be compromised by heavy drinking.  From her perspective, overnight time, at the present point of proceedings, is a bridge too far. 

22. The father’s evidence is that X has indicated to him a yearning to spend more time with him. Given X’s age and the intensity of the dispute between the parties, I consider that any weight to be given to X’s views, at this stage, should be limited [see section 60CC(3)(a)].

23. More significantly, in the context of the Families SA records, I believe that it would be imprudent for me to consider that Mr Lee’s issues with alcohol are largely behind him.  In these circumstances, I do not dismiss the mother’s concerns that X may be at greater risk of coming to some form of harm, in an overnight setting. 

24. In addition, it seems to me to be axiomatic that Ms Zaplan will be more concerned about X spending time with her father in such an overnight setting.  Given that she has been X’s predominant carer, certainly since the parties separated, her anxiety, in this regard, may have implications for her capacity to parent X to the full extent of her abilities. 

25. In my view, an overall consideration of all relevant section 60CC factors results in an interim outcome which sees X continuing to live predominantly with her mother. However, I also accept that her best interests dictate that she should have a meaningful level of relationship with her father. Given X’s age, in my view, this indicates that she needs to spend more than three hours per week in her father’s care.

26. The question for the court, at this stage, pending final hearing and the release of the family report, is how this can occur safely and without X being exposed to either conflict between her parents or some possible level of compromised parenting, possibly arising from Mr Lee’s alcohol use.

27. I appreciate that the circumstances surrounding Mr Lee’s current use of alcohol are heavily contested and cannot be resolved, by the court, at this point.  However, notwithstanding this evidentiary difficulty, I consider that the exposure of X, to her father, in an overnight setting, does constitute an unacceptable risk, so far as X’s safety is concerned. 

28. This finding is not an end to the court’s determination of risk, so far as X is concerned.  In my view, there is also a risk, for X, of her not having a proper level of warmth and intimacy, in her relationship with her father, if the court does not make orders for her time, with Mr Lee, to be extended. 

29. Balancing these concerns, I have come to the conclusion that X should spend three periods of time, with her father, each week, between 10:00am and 5:00pm.  I propose that these periods fall on each Thursday, Sunday and Tuesday of each week, commencing on 10 December 2015.  This will also include Christmas Day, which is not an occasion apparently celebrated by Ms Zaplan. 

30. On 3 November 2015, I varied the place of handover from the (omitted) at (omitted) to the (omitted) Police Station.  I did this on the application of the mother and over the forceful objections of the father, who submitted that there was no need to move away from a neutral location to one which was potentially subject to scrutiny by an independent agency, such as members of the police force. 

31. These proceedings have been vigorously contested.  In my view, there are significant cultural differences between the two parents concerned.  Serious allegations have also been made.  In these circumstances, I see no reason to move the handover location away from the (omitted) Police Station. 

32. The final issue remaining is also one of significant controversy.  It concerns which primary school X should attend from the start of 2016.  From the father’s perspective, the (omitted) School is superior in every regard.  He submits that it is academically better and X has more friends, from her kindergarten days, who will be progressing to it.

33. From the mother’s perspective, the (omitted) Primary School is closer to her home and, as she remains X’s main provider of care,  it is appropriate that she should attend a school, which is close to the home in which she mainly lives.

34. At this interim stage, I am unable to determine which is the superior school academically.  I note however that both are funded by the South Australian Government, and as such, are likely to have a similar syllabus.  I am also well aware that the issue of where and with whom X should live predominantly is also hotly contested. 

35. However, the current impasse between the parties requires the court to make a decision, about the school, because the parties themselves cannot. 

36. There is no legal presumption in favour of one parent being able to make a decision pertaining to an educational issue, affecting a child, because the child concerned lives more with that parent than the other parent.[2]

    [2]  See re G: Children’s Schooling (2000) FLC 93-025

37. However, notwithstanding this presumption, I adopt what was said by the initial judicial decision maker in Eden & Eden-Proust.[3]

    “… it would be fair to say that most reasonably minded people in the community would hold to the view that, generally, absent any agreement to the contrary, a child should attend a school close to his or her primary place of residence.  Obviously, travelling time to and from school is dead time for the child and takes away from him or her the opportunity to use such time for more productive/enjoyable purposes, such as school work or sporting activity.”

    [3]  See Eden & Eden-Proust [2011] FamCAFC 138 at page 2

38. Until final hearing, X will be living more with her mother than her father.  In my view, this dictates that she should attend the school closest to where she lives.  The final hearing, in this matter, is a relatively short period of time away.  As such, the decision about the appropriate school for X can be re-visited.  It is also likely to be an issue canvased by the family report writer. 

39. I appreciate that Mr Lee will be greatly disappointed by the decision, which I have made in this case.  I also appreciate that his mother, X’s paternal grandmother will also be disappointed.  As I pointed out, at the end of the interim hearing, I appreciate that X is a much loved child. 

40. However, it falls to the court to make a decision, which it considers will best serve X’s interests.  This is a difficult task to accomplish, particularly at this provisional stage and when the intensity of the emotions released by the parties’ separation and the subsequent legal proceedings are so intense.

41. I hope both parties will keep these considerations in mind in the period leading up to the final hearing, particularly that the interim proceedings are not the conclusion of the proceedings between them.  I also hope that the family report will assist them to focus on what is in X’s best interests. 

42. The arrangements for X to spend time with her father will have to be revisited once X commences primary school, as the day time periods envisaged will no longer be appropriate.  In these circumstances, I propose that X spend from after school on each Tuesday and Thursday until 6.30 pm.  This will enable the father to provide an evening meal to X on these days.

43. I will list the matter for further directions, after the family report is to hand, on 24 March 2016 at 9:30am.

44. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:                  8 December 2015