Licata & Buxton
[2019] FCCA 3181
•14 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LICATA & BUXTON | [2019] FCCA 3181 |
| Catchwords: FAMILY LAW – Parenting – interim – schooling – where parties unable to agree where child should commence primary schooling – where the child currently attends two kindergartens – where parties share equal parental responsibility on a week about basis – where mother refuses to attend mediation – where mother unilaterally enrols child in primary school of her choosing – where child displays sexualised behaviour with other children – DHHS investigation into the sexualised behaviour of the child – where the Australian Childhood Foundation provided support to the parties and the child – family consultant not provided DHHS report or s 11F report – where an application for a family violence intervention order prevented the child from spending time with the applicant father – where family violence intervention order has since been withdrawn – best interests of the child – applicable principles – application granted. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 4AB, 60, 60B, 60CA, 60CC, 65D, 70Q |
| Cases cited: Amaca Pty Ltd (Under New South Wales Administered Winding Up) v King [2011] VSCA 447 |
| Applicant: | MR LICATA |
| Respondent: | MS BUXTON |
| File Number: | MLC 6325 of 2019 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 30 October 2019 |
| Date of Last Submission: | 30 October 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 14 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Swann |
| Solicitors for the Applicant: | RNG Lawyers |
| Solicitor-Advocate for the Respondent: | Mr Roberts |
| Solicitors for the Respondent: | Go To Court Law |
THE COURT ORDERS THAT:
The applicant father and respondent mother forthwith sign all documents and do all things as may be necessary to enrol the child X born on … 2014 in A Primary School, Suburb B, to commence in term one, 2020.
Pursuant to ss 65DA (2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes the orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Licata & Buxton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 6325 of 2019
| MR LICATA |
Applicant
And
| MS BUXTON |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain parenting orders that have been made pursuant to the Family Law Act 1975 (Cth) (Act), concerning the arrangements to be made with respect to the primary school education of the child, X, born on … 2014 (Child) with effect from 2020.
In summary, I have concluded that the Child should be enrolled at A Primary School, Suburb B. The parties have identified a range of considerations that were submitted to be given appropriate weight in the overall evaluation of their competing proposals. However, on the basis that the parties share equal parental responsibility on a week about basis, I consider that the school that has been selected will provide for the best interests of the Child in his primary school.
Background
For the purposes of identifying agreed or contested facts and relevant considerations under s 60CC of the Act, it is convenient to address the evidence. Since the matter proceeded as an interim hearing, the matters addressed below do not represent ultimate findings of fact and to the extent they are in dispute, are conditioned upon being evaluated at trial.
The parties are aged in their late 20s and enjoy good health.
The applicant is engaged in full-time employment as a tradesman. The parties are in dispute whether he works five or six days per week with the respondent deposing that he works on Saturdays, while the applicant deposes that he works Monday – Friday.
The respondent performs home duties.
The parties relationship commenced in 2011 when they were both aged 20 and ended in September 2015.
The Child is the only child of their relationship. He is described as a normal, healthy child who is bright, well-behaved and generally happy. The applicant pays child support as assessed.
Following separation, the parties’ shared arrangement for the Child operated in alternative weeks, where the Child spent approximately half of each week with each respective parent. With effect from February 2019, the parenting arrangement was altered such that the Child would spend alternate weeks with each parent with changeover on Sunday afternoons.
Since separation, each of the parties has re-partnered. The applicant has been in a new relationship for about three years and has a child from that relationship who is now aged about 15 months. The respondent’s partner has two young children from a previous relationship. The respondent and her new partner have become parents to twins who are now aged about 19 months. Each of the parties deposed that the Child enjoyed a good relationship with his respective step-siblings and half siblings.
The applicant deposed that the parties had enjoyed reasonably good communication with respect to parenting arrangements until October 2018 when they fell into dispute over schooling arrangements for the Child. The applicant deposed that he initiated discussion on this issue by reason that the Child’s schooling was to commence in 2020. He also deposed that his partner had been able to communicate reasonably well with the respondent.
The respondent deposed that in about October 2018 she became concerned that the applicant and/or his partner were unable or unwilling to appropriately discipline the Child. In the course of an email exchange between the respondent and the applicant’s partner there was discussion in relation to the applicant’s neighbours grandson, F, aged four years. The respondent stated that she did not like the Child spending time with F and that the applicant’s partner replied in terms that she considered F to be, amongst other things, ‘full on’, difficult to handle and that he was ‘a little shit.’ The respondent further deposed that the Child continued to socialise with F and that she held concerns about this. She recounted an event in January 2019 when the Child had gone missing from the applicant’s home and that the applicant’s partner discovered the Child had taken his bicycle and ridden over to the neighbour’s house.
The applicant’s partner described an incident on 21 November 2018 in which, following a telephone argument, the respondent had sent a text message to her stating that in future the Child was to be dropped on her doorstep and that she did not want the applicant to come to her home anymore. The respondent agreed in that description of events.
It is in dispute whether, at some stage in early 2019, the parties held a FaceTime conversation that involved the Child. The applicant’s partner deposed, and the respondent denied, that during this conversation the respondent had told the Child to tell his father of an event which had occurred that day. The respondent then prompted the Child stating “him and G have been playing the bum game.” The reference to G was a reference to one of the respondent’s partner’s children, who was of a similar age to the Child. To this, the applicant responded “What the hell is the bum game.” The respondent replied “they had their pants off and were shaking their bums at each other.” For the avoidance of doubt, the respondent deposed that “this conversation did not occur.”
As will appear, it is alleged that the Child has been the subject of various sexualised incidents occurring at the applicant’s home, the respondent’s home and a pre-school learning centre. In turn, the parties seem to have responded to these alleged events in quite different ways. Moreover, and more troubling, is that the parties have employed these incidents as the basis for allegations that the Child first learned such sexual behavioural traits while in the care of the other parent. Further, while the Child’s sexualised behaviour is not directly relevant to the determination of the present application, it has been deployed in the conduct of the litigation in a manner that provides an insight as to the parenting capacities of the parties and whether they are appropriately child focussed in making decisions in the Child’s best interests. For at least those reasons, an order was made for the parties to undertake a post-separation parenting program if they have not already done so.
The catalyst for the institution of the proceeding arose from an incident that occurred on 6 May 2019 when the applicant’s neighbour and his wife who were then babysitting their four-year-old grandson, F, made a visit to the applicant’s home. The Child and F are of approximately the same age and were about four years old at the time of the incident. While the applicant, his partner and the neighbours were seated around a kitchen table socialising, the two boys were running about the kitchen and adjoining bedroom. During the course of this social occasion, it was necessary for the applicant at reasonable intervals to get up to check on the two boys. On one occasion, the neighbour (a police officer of 26 year’s experience) took the initiative to check on the boys so as to give the applicant some respite from that task. When he did so, he found the boys in the lounge room where he observed his grandson lying on his back on the couch with his pants pulled down and that the applicant’s son had placed his mouth over the penis of his grandson. The neighbour, understandably shocked by what he had observed, yelled at the boys who immediately stopped what they were doing. The neighbour observed the boys to look at him “as if they had done nothing wrong.”
The neighbour then reported this incident to his wife, the applicant and his partner, they were equally, visibly shocked and upset. The neighbour suggested that no one should make any rash decisions. Instead, they discussed the need to inform F’s parents and then formulate a plan of action to deal with the event. The neighbour, who swore an affidavit on behalf of the applicant, deposed that “We all agreed the boys were not at fault but there was a need to further investigate what had led to the behaviour I had witnessed.” The neighbour deposed that the applicant and his partner were deeply concerned about what had occurred and wanted to understand what had motivated the Child’s behaviour in order that they could protect him.
The applicant, who had read the neighbour’s affidavit and agreed with its contents, said that he spoke to the Child on the evening of 6 May 2019. The applicant recounted that the Child had stated he had learned “the bum game” from the respondent’s partner’s four-year-old daughter, G. Asked in relation to the incident involving F, the Child had stated he had only been involved in an incident of that kind on one occasion.
The applicant clearly recognised the need to address the incident with the respondent. He deposed that as the respondent did not want him to contact her, he had agreed with his partner that she should discuss the issue with the respondent immediately. The respondent denied this explanation, deposing that the applicant’s partner had disclosed to her (the following day), that she had come to talk to the respondent without the applicant’s knowledge. At all events, it is common ground that the following day, 7 May 2019, the applicant’s partner sent the respondent a text message seeking to meet and talk with her about the Child and “the bum game”. The respondent agreed she had sent a text in reply to the applicant’s partner stating:
hey yeh that would be good, as I have caught G and him doing it a few times last week and they have been in serious trouble about it.
It is immediately apparent that the respondent accepted the Child had engaged in the sort of conduct with G as described.
It was also common ground that later on 7 May 2019, the applicant’s partner visited the respondent where they spent about 30 minutes together. During this visit, they discussed the incident involving F which was recounted to the respondent. The respondent and the applicant’s partner then called the Child into the lounge room and discussed the incident. The Child’s account of what he told them was set out in the respondent’s initial affidavit. In the course of his account, when the Child described playing “the bum game” with F, the respondent deposed that she observed the child to look very upset “by the questioning”. A recurrent theme in ensuing records is that the Child was visibly upset by such discussions.
Following the meeting with the applicant’s partner, the respondent sent her a text confirming that she had spoken with her partner and that they would have “a huge talk” with G and that they would keep reminding the child, in effect, of the need for modesty. The respondent stated that she was “scared he is going to have that bad memory & this could affect him badly & we don’t want to feel he touch his own body or beat himself up over this. It’s such a hard topic to talk about I feel you should think about letting his kinder teacher know. I feel we need to keep all this to ourselves [W]e are not telling anyone.” The respondent expressed concern that she did not want to scar the Child and expressed gratitude that the applicant’s partner had come to discuss the matter.
The parties were in dispute as to whether various other incidents involving the Child, F or G had occurred. They were also in dispute whether the respondent had stated to the applicant’s partner that the respondent and her new partner “did not know what to do” about the incidents described above. Contrastingly, the applicant’s partner deposed that at this stage she believed the parties and their partners were “all on the same page” and wanted to find out where the Child’s conduct had come from. It is clear that the parties had the issue under active consideration and there is at least some suggestion they may have been at a loss as to how they ought properly respond.
Later that evening, the respondent discussed these incidents with the Child in the course of which he described having performed oral sex on F on three occasions and stating “he was pushing my head down with his hands.” This account may be compared with a statement in the affidavit of the applicant’s neighbour who deposed that although he was fairly open minded and had seen a lot of things in his life, what he had seen on the occasion involving his grandson “was something different in my eyes.” For completeness, I note the applicant emphatically denies the respondent’s suggestion that the Child had disclosed that he had engaged in oral sex with F on three occasions.
The applicant’s partner also described to the respondent that she had caught the Child a few days earlier “flashing his bottom” at his younger infant sibling and that when he was asked what he was doing, the Child had responded “I’m playing the bum game”. I understood this evidence to recount an event that occurred sometime shortly before 6 May 2019.
Although the respondent expressed disappointment that the applicant had not contacted her to discuss the incident, she deposed that she returned the Child to his care on 7 May 2019 where he remained until 12 May 2019. Her explanation for doing so, which was volunteered, was that she felt “I had no choice in the matter as this would have inevitably led to a fight in my home” This evidence stands in contrast with her response to events that were to occur soon afterwards.
On Friday, 10 May 2019, the applicant attended a family dispute resolution service (FDRS) centre for the stated purpose of advancing mediation in relation to schooling issues. The caseworker issued a certificate pursuant to s 60I of the Family Law Act 1975 (Cth) (Act), by reason that the respondent had not attended the family dispute resolution appointment. Importantly, in the course of his FDRS attendance, the applicant disclosed the incidents involving the Child, F and G to the caseworker who immediately responded that it was necessary to make “a mandatory report” to the Department of Health and Human Services (DHHS). As a consequence, DHHS initiated an investigation. As will appear, the respondent attributed blame to the applicant for this disclosure and the sequence of events that were to follow.
The applicant deposed to returning the Child to the respondent on Saturday, 11 May 2019 in order that he could spend Mother’s Day with her. The applicant’s partner, who deposed that she was present at this handover and had asked the respondent whether she had discussed the matter further with G, was told that she had not done so. Contrastingly, the respondent deposed that on Sunday, 12 May 2019, the applicant returned the Child to the respondent’s care. When changeover occurred on this occasion, the applicant had asked the respondent whether her partner had spoken to his former partner to inquire whether anything had happened to his daughter, G. One inference is that the applicant was concerned whether DHHS has begun its investigation.
The applicant’s partner deposed that her next conversation with the respondent was on Tuesday, 14 May 2019 when the respondent told her she had received a call from DHHS stating “I can’t believe [the applicant] is such a fucking arsehole” and accused the applicant of having dobbed her in or that “F’s idiot parents have dobbed her into DHHS.” In passing, it appears common ground that the respondent had mistakenly believed the applicant’s neighbours were the parents of F and not his grandparents. At all events, the respondent stated to the applicant’s partner “No you are not having [the child] with you, [the applicant] has fucked it up for everyone” or words to that effect. The respondent denies making the statements.
On 14 May 2019, the respondent received a call from DHHS in relation to the Child having engaged in sexual activities at her home. Soon afterwards, the respondent telephoned the applicant advising him not to come to her home and stating that the Child would have no spend time with him until further notice. The respondent further deposed that she made these decisions because she believed it to be in the Child’s best interests for DHHS to complete its investigation. On one view, having decided that the applicant had “fucked everything up for everyone”, the respondent was more concerned to contain the fall-out, particularly insofar as it concerned an investigation in relation to G.
The applicant deposed that on 14 May 2019 he received a telephone call from the respondent which he was generally unable to understand her, describing the respondent as screaming and incoherent. He was in no doubt however that she stated, in effect, that the applicant “would never see [the child] again.” The respondent denied this account, stating that she informed the applicant: he could not come to her home to collect the Child; that the Child would be staying with her until further notice, and; that she did not want any further contact with the applicant.
On 15 May 2019, the respondent:
a)received a telephone call from DHHS who advised him that the department had elevated its investigation and scheduled a meeting with the respondent and Child for 23 May 2019;
b)contacted police, expressing fear for the Child’s safety and was advised to apply for an intervention order (IVO);
c)the respondent booked a court appointment for 20 May 2019.
On Thursday, 16 May 2019, and again on Saturday, 18 May 2019, the applicant’s partner sent a text to the respondent enquiring as to the plan for Sunday. Having regard to the response, I infer the text was an enquiry in relation to the Child’s week about spend time with the applicant. The respondent replied that she had decided that “for now” the Child would stay with her. The respondent recounted further versions of events that the Child had described to her of his involvement with F and that she had been told to call the police if the applicant or his partner came to her house “Mr Licata is not to come anywhere near my home on police orders, and I have been told to ring 000 straight away if he does. Until there is a court order in place unfortunately this is the way it stays. I will not be sending messages back and forth.” The respondent agreed she had sent that text.
The respondent claimed that on 19 May 2019, she had received a call from her mother who, in a state of distress, reported that the applicant had come to her home demanding the return of the Child. Responding to this allegation, the applicant denied he had done so. Instead, he stated that on 21 May 2019, in the company of his partner and father, he had gone to the respondent’s home to collect the Child but found there was no one at home. The applicant then communicated with the respondent’s parents asking as to the whereabouts of the respondent and the Child. He stated that the parents response was they would not disclose their whereabouts even if they knew. He denied making any sort of threat to the parents and said that they refused his request that he could wait at their home until she arrived (I assume, with the Child).
On 20 May 2019, the respondent made application for an IVO against the applicant made returnable on 8 August 2019. Set out in the body of the application was an account given by the respondent of why the IVO was needed. I have considered that account. Contrary to the fact, it alleged that there were extant family law orders in place. As concerned the incident which was the catalyst for this proceeding, the respondent stated that the applicant’s neighbour had “walked in on F with his pants down grabbing [the Child’s] head and attempting to force him to suck his penis”. The respondent stated that she had immediately suspended the Child spending time with the applicant. The respondent also stated:
I do not think [the applicant] is taking our son’s safety and well-being seriously. We are also having problems over where [the Child] should attend primary school. The [applicant] is unreasonable and this has led to mediation between the two of us to attempt a resolution. The [applicant] continued to harass me over the issue in the situation is deteriorating on top of the latest sexual conduct our son has been exposed to.
The respondent’s statement in her IVO is also notable in that she raises the issue of mediation in relation to the schooling impasse but does not disclose that she had not attended mediation on 10 May 2019.
The applicant, who was served with this application the following day, had been given no notice of that application. The applicant contested the accuracy of the respondent’s account of the incident involving F and denied that he did not take care for the Child’s safety and well-being or act protectively in his interests.
As a consequence of the IVO application, the Child was unable to see or spend time with the applicant. The respondent would later acknowledge to DHHS that she had been motivated to apply for the IVO in part because of the unresolved dispute in relation to the Child’s schooling.
In DHHS’s report of the interview which took place on 23 May 2019, the respondent’s partner was adamant that there had been no sexualised behaviour involving his daughter and the Child. While his position may be contrasted with the respondent’s text set out at [18] above, his response may perhaps be understood as an indirect denial that the Child had learned oral sex from his daughter. DHHS’s report may also be incomplete as to the content of his statement as to this issue.
When DHHS questioned the Child, he presented as being shy and essentially non-responsive. However, when questioned in relation to the incident involving F, the DHHS investigator observed the Child to be visibly uncomfortable, red-faced and as describing F exposing his backside to him but that he had in turn refused to do so. Accepting this to be the response of a four-year-old, it did not accurately disclose the incident with F. DHHS requested the respondent and her partner to engage with Australian Childhood Foundation (ACF), to supervise the children when in their household and they did so.
On 27 May 2019, DHHS officers interviewed the applicant and his partner. DHHS’s report detailed the accounts which they had given in relation to sexualised behaviours involving the Child and F, and the Child and G respectively, including that the applicant’s partner held correspondence from the respondent acknowledging that she had observed incidents between the child and G on two occasions. The applicant and his partner were also agreeable to engaging with ACF and to supervising contact between the Child and other children whilst at their home. DHHS reported it appeared that both the applicant and his partner “were concerned about the sexualised behaviours and wanted to support X as well as reinstating their contact with him.”
On 29 May 2019, DHHS made contact with the respective preschool centres that the Child attended when in:
a)the respondent’s care: DHHS ascertained that the Child had neither exhibited sexualised behaviour nor made any disclosures relating to sexual activity or abuse. No developmental or behavioural concerns were expressed in relation to the Child. To the contrary, the Child was described as placid, quiet, kind and caring;
b)the applicant’s care: DHHS ascertained that the Child was described as a lovely, happy, well-engaged child with no concerns being expressed for his development, behaviour or ability to socialise. However, a report was made of an incident occurring in April 2019 in which the Child and another four-year-old had exposed their naked backsides to one another. A further incident of this kind had been observed by another educator at the centre.
On 31 May 2019, DHHS interviewed the applicant’s neighbour who gave his account of his observations including that when told to stop they had done so and “looked at him, bewildered”.
On 11 June 2019, the applicant sent the respondent a text message advising that the Child had been invited (as one of three children) to attend F’s birthday party. The respondent refused to agree that the Child could attend the party and deposed that the applicant did not appear to understand how serious the incident with F had been. The applicant met the respondent’s criticism that he had conveyed this invitation to her in two ways. First, he stated that on no occasion during his several dealings with DHHS had he been advised that the Child should not spend time with F. Secondly, he explained that he had tried to maintain as much normality for the child as he could “during this difficult period which includes maintaining his friendship with F which was and remains an important part of his life.”
On 11 June 2019, the applicant commenced this proceeding.
On 12 June 2019, the respondent attended an appointment with ACF. Arrangements were made for the Child to be counselled and his name was placed upon a waiting list. Separately, on the same date:
a)DHHS communicated with ACF who recounted their dealings with the respondent, including that she reported the applicant to having “used inappropriate physical discipline by washing out [the child’s] mouth with soap following the incidences (sic).” ACF also reported that the respondent considered the applicant was not “being protective by not reporting the incidences (sic) to her as much as possible and she didn’t feel it was safe for [the applicant] to have care of [the child] which appeared [to ACF] to be a protective instinct.”;
b)DHHS communicated with the applicant in relation to the ‘soap’ allegations. The applicant explained to DHHS that he had in fact made the Child brush his teeth following the incident involving F and that he had done so for hygienic purposes. The applicant also told DHHS that he had explained to the Child that “in an incident like this occurred again he would wash out his mouth with soap.” DHHS observed that the applicant was able to articulate appropriate methods of discipline when asked to do so;
c)the applicant received an email from the respondent making a proposal that the Child could spend Sundays with him on alternative weekends. The applicant accepted that proposal.
When interviewed by a family report writer on 2 October 2019 the Child stated that soap had not been put in his mouth at his father’s home.
By letter dated 18 June 2019, DHHS advise the respondent’s partner that it had completed its investigation in relation to his daughter, G.
On 22 June 2019, the respondent was served with the applicant’s initiating application, supporting affidavit, an affidavit by his partner, an affidavit by F’s grandfather together with the s 60I and a notice of risk. On that date, the applicant received a phone call from the respondent who stated that, having received the court documents, “you’ve just lost [the Child].” The applicant replied, on more than one occasion, that the respondent should speak with his lawyer. The applicant stated that in the course of the conversation, the respondent had said, variously: “You’re fucked Mr Licata, you are fucked. You have no idea what you have done” and “You’re never going to see him again you’re fucked.” Shortly afterwards, the applicant received a Facebook message from the respondent’s partner which read: “Better keep writing up them lies mate, your sons already calling me dad haha . . . I’m never met such a scared desperate little dog!” It is difficult to conclude that such communications were in any way child focused. The respondent’s partner is about four years older than the applicant.
The applicant recounted an exchange with the Child on 29 June 2019 during which the Child stated that the respondent had told him “to call Mr H daddy and he is my new daddy” or words to that effect. The Child asked the applicant if he could “sleep at your house for 100 sleeps.” The applicant gave further accounts of the Child’s spend time with him and of a telephone conversation which the Child had made to him. At a later weekend with his father, the Child had said that he had asked his mother on some five occasions to be able to make the telephone call. The applicant deposed that in consequence of the spate of recent events including his loss of contact with his father that the Child “now appears anxious, miserable and unhappy and I am deeply concerned about his current welfare.”
On 17 July 2019, ACF contacted DHHS reporting that the applicant had sought the assistance of ACF, wanting to know how best to support the Child through “the changes that had occurred”. ACF described to DHHS that the applicant sounded balanced and reasonable and that he had provided an account which was consistent with the timelines that had been provided to it. ACF described the applicant as constantly returning the conversation to the Child and the Child’s perspective.
On 24 July 2019, DHHS interviewed the Child. DHHS reported that when the prospect of contact with the applicant was raised, the Child appeared excited. DHHS observed in the Child, a state of happiness whilst in the care of the applicant and recorded that the Child wanted to see the applicant more. He adopted the same stance when asked whether he wished to spend time with the respondent. Again, the Child was observed to appear “visibly uncomfortable” when questioned in relation to the incident involving F but as being otherwise unresponsive.
DHHS recorded that the respondent was adamant it was inappropriate for the Child to have contact with F. Whilst the respondent had reported to DHHS that it had been inappropriate for the applicant to have raised the possibility of the Child attending F’s birthday party, otherwise she had “acknowledged that she is not worried about [the applicant] seeing the child because she knows and believes he is a good father however she has her concerns.” As concerned schooling, DHHS recorded that the parties had not been able to agree on the Child’s schooling and that their conflict on this topic had caused her stress and anxiety.
In its discussions with the applicant, DHHS observed that the applicant considered the Child enjoyed a positive relationship, and enjoyed his time, with him. Although it is not entirely clear, DHHS appears to have received a report from the father in which the Child gave an account of his head being forced onto F’s penis and that, to the applicant’s observation, the Child’s use of the word ‘force’ did not seem to be “age-appropriate behaviour.” DHHS further reported that the father had questioned the Child in relation to this use of language and that the Child had volunteered that the respondent had told him to say that (ie ‘forced’).
Of real concern is that DHHS reported the respondent “acknowledged she sought an IVO against [the applicant] because they couldn’t agree on [the Child’s] schooling, the disagreements were causing her stress and her concern that the applicant was not willing to protect the Child in relation to any contact with F.” DHHS considered, correctly that these matters needed to be resolved between the parties and that they should not be allowed to impact the Child’s contact with his father.
DHHS recommendations
By its report dated 29 July 2019, DHHS recommended that the parties have the equal shared care of their Child, being the arrangement which had been in place prior to its involvement.
DHHS noted that the Child had been in his father’s care every alternate week and was acknowledged by the respondent to be a good father such that the Child should continue to have a relationship with him. DHHS considered that the father remained focused on the Child’s well-being, a view which had also been expressed by ACF.
DHHS also observed that the father supervised the Child and had noted positive interactions between the Child and others and had not identified other inappropriate behaviour. It noted that the Child had no concerns about spending time with his father and, to the contrary, seemed excited at the prospect of doing so.
Equally, DHHS held no serious concerns for the Child whilst in the care of the respondent and again noted that ACF was supportive of that conclusion. Nonetheless, DHHS expressed concern at the respondent’s initial decision to terminate the Child’s spend time and then only to allow very limited contact between the Child and his father on fortnightly intervals “despite there being no clear evidence that [the applicant] specifically is a risk to [the Child]”.
DHHS recommended it to be in the Child’s best interests to have increased and regular contact with his father as had previously been in place and for the parties to continue to engage with ACF and to support the Child in that respect. DHHS expressed the aspiration that the issues could be resolved in order that the Child could be provided with “the best opportunity to thrive throughout his childhood.”
Procedural history
On 11 June 2019, the father filed an initiating application for parenting orders in respect of which his request for an urgent listing was refused.
The father sought orders for equal shared parental responsibility and for the Child to spend time with each of his parents on a “week about” basis. The applicant sought orders that the parties sign all documents and do all things necessary to enrol the Child at A Primary School, Suburb B, to commence term one in 2020. Ancillary and interim orders were also sought.
By her Response, the respondent also sought final orders for the parties to have equal shared parental responsibility for the Child. The respondent proposed interim orders be made that the Child spent time with the father on alternative Sundays. Orders were sought that the Child be enrolled at the Suburb C Primary School.
Each of the parties filed a notice of risk giving rise to the DHHS report that has been considered above. Somewhat tellingly, the parties gave different accounts of the facts and circumstances giving rise to the risks that they identified. While both of them provided a summary of the incident involving the child and F that occurred on 6 May 2019, the applicant identified that the Child stated he had learned this behaviour from his stepsister whilst in the care of the respondent who, he claimed, had observed the Child to engage in inappropriate sexualised behaviour with his stepsister in the preceding period of four to five months. Contrastingly, the respondent stated that the applicant’s partner did not properly supervise the Child; that the Child had ridden his bicycle to the neighbours home without her knowledge; that the Child had engaged in oral sex with F (a matter which was under investigation by DHHS); that the applicant had demonstrated a lack of parental insight by asking for her consent for the Child to attend F’s birthday party, and; that the father had exposed the Child to psychological and further sexual abuse by allowing him to spend time with F.
Contextually, the applicant’s initial affidavit made full disclosure concerning an incident where he had entered a plea of guilty, at age 20, to recklessly causing serious injury. By her affidavit, the respondent agreed with his account of those events. Neither party contended that the incident was relevant to the question of risk and neither of them alluded to it in their respective Notices of Risk.
At the first directions hearing of the proceeding, an order was made for an urgent conference and report with a family consultant pursuant to s 11F of the Act. Nothing further was agreed by the parties.
Section 11F conference and report
The parties attended the s 11F conference. Following that conference the family consultant gave an oral report to the court. The family consultant reported that the parties had been reminded of the importance of remaining Child focused in addressing their options. While the Child demonstrated limited insight, the consultant considered that he had misattributed blame and shame to himself for incidents of sexualised behaviour. His bright and bubbly demeanour changed significantly when asked about why he does not spend much time with [the applicant]; the Child looked down at his feet and replied, ‘I did something really bad.’ He later added that [the respondent] had told him “he was not allowed to stay overnight with [the applicant].” The consultant observed that the Child to exhibit a positive, loving bond with his father and appeared to thoroughly enjoy engaging with him, remaining in close proximity to him, readily asking his father to engage in his activities.
The family consultant considered there was a need to protect the Child from adult conflicts and that the breakdown in communication appeared to have been building for some time. This notwithstanding, the parties were agreed in equal shared parental responsibility.
In addressing future directions, the consultant considered there was no reason why the current equal shared care arrangement could not return to the pre-existing status quo. The consultant identified that despite the agreement for equal shared care, the arrangements had not necessarily prioritised the interests of the Child over those of the parents. For example, the consultant recognise, as the parents could not agree on a kindergarten, the Child was instead attending two different programs. Importantly, the consultant expressed her opinion as follows:
This is symbolic of the wider issue of the parents inability to effectively co-parent. This does not promote stability, consistency and routine for [the child], and puts him at risk of continuing to be at the centre of the adult conflicts for many years to come, and having to manage whatever compromise his parents are able to reach that best suits the adult needs rather than his own.
The consultant assessed the risk posed by the Child’s ongoing relationship with F and correctly recognised that in the circumstances the issue was not one of ceasing contact but rather enacting a safety plan and also mitigating risk as by supervision. It was recognised that a cessation of contact may well be viewed by the Child as punishment and, in turn, may discourage him from speaking out on important issues in the future. The need to address the Child’s sense of shame, both by reassurance and professional assistance was noted. So too, was the need for the parents to present a united front to the Child when dealing with sexualised behaviours. The consultant’s observation on the need for the parents to present that united front was consistent with the respondent’s initial reaction to the matter on 7 May 2019. It is a matter of significant regret that the issue had instead escalated in a way which was, at least in part, motivated by the respondent’s desire to address the schooling dispute collaterally (i.e., via an IVO).
A recommendation was made for the parties to undertake a parenting orders program and to invite their partners to do so. Insightfully, the family consultant observed that if the present failure to prioritise the interests of the Child continued, the situation would likely evolve into one where it would be in the Child’s best interests to have a primary parent and that “either parent could fulfil this role.”
Following receipt of the oral report further orders and directions were made including that the matter be listed for interim hearing so as to address the schooling issue. The proceeding was also set down for hearing at the first available date, being 4 February 2021. Detailed directions have been made for the preparation for that hearing together with an order for a family report.
Consent orders were agreed for equal shared parental responsibility and a resumption of spend time with the Child to spend alternate weeks with each of his parents. A consent order was made for the parties to enrol in, attend and complete a parenting orders program (to which their partners were invited to participate), and for them to continue to engage with ACF and arrange counselling for the Child. A notation to the order was made that the resumption of equal shared parental responsibility was made without prejudice to the right of either parent to apply for orders for the primary care of the Child.
The respondent agreed to withdraw her IVO application. However, when interviewed for the family report, the respondent variously stated that she had been pressured by family and lawyers to agree to withdraw it and that she had made the application because she considered the applicant was using mediation “to make completely unsubstantiated [allegations] about her stepdaughter.”
Family report
A family report dated 21 October 2019 considered various parenting issues including the question of schooling.
While the applicant, his partner, the respondent and Child attended for interview, the respondent’s partner did not do so. The respondent’s partner has not filed an affidavit in the proceeding.
An anomaly which emerges from the family report is that the author stated it was unknown what the father was proposing in terms of parenting orders. This is perhaps explained by the list of documents read by the family report writer which discloses that she had not read the father’s initiating application that stated explicitly the relief being sought. Another feature of the family report is a recurring series of allegations that the respondent is manipulative and controlling. Contrastingly, allegations of manipulative and controlling behaviour had not been raised in the respondent’s affidavits. The family report writer recorded the respondent’s view that “If it’s not Mr Licata’s way it’s the highway” and that he became very angry when things did not go his way. She also recorded that the respondent said she had been pressured to agree to equal shared parental responsibility.
The family report writer interviewed the applicant’s partner who considered that there had been a very supportive agreement and cooperation prior to the incidents of May 2019. The writer observed that the respondent and applicant’s partner appeared to have had a reasonably good relationship before May 2019, but that communication was now poor in part because the respondent considered the applicant had fabricated information, in particular in relation to her stepdaughter.
The family report writer observed the Child to have a strong emotional bond with his mother and a reasonably strong bond with his father and his father’s new partner. The author considered the Child was more likely to have stronger relationships with his maternal stepsiblings by reason that they were of similar ages. It was also noted that the Child appeared to have frequent contact with both of his extended families.
In her evaluation of the matter, the family report writer observed the applicant to speak over the top of her and appeared to characterise this trait as being indicative of his need to be in control during the interview. She also considered the applicant to be competitive in terms of the amount of spend time that the Child had with each parent. She concluded that the applicant appeared to lack insight and reflective skills which may indicate his inability to consider seriously the point of view held by an ex-partner or the professional opinions of others.
While the family report writer considered the applicant not to be focused upon the incidents involving the Child in sexualised behaviour, she found the respondent to be very distressed by them. She also found that whilst the respondent had gone to some lengths to cooperate in the past, there had been no evidence that the applicant had done likewise; “[t]hat is, put himself in the position to travel extra distance to accommodate the respondent.” The family report writer noted the respondent’s concern about the practicality and stability for the Child of being transported on most days and collected by the respondent. In particular, the author stated that in the Prep year it would be very important for the Child to have little other emotional and psychological changes and adjustments to make because, developmentally it is a significant milestone. I address this issue below.
The family report writer insightfully, and in my opinion correctly, recognised that whether or not the Child had learned sexualised behaviour – that is, to perform oral sex – from G or F, this was very concerning because it was considered to be very unlikely that children would have “accidentally witnessed that kind of behaviour” and moreover that “there was a lack of a sense of the need to be protected from the parties and more a sense of the need for the parties to blame each other for what had occurred”. I agree.
The family report writer recognised the practicality of the respondent driving the stepsiblings to a nearby primary school in Suburb C and then taking the Child to Suburb B; however, she also noted the applicant’s view that the respondent had held employment in Suburb B and not encountered difficulty in driving there for that purpose.
Although it is not an issue that arises for the purpose of the present application, and as it is clear that parenting issues are not determined on the basis of a “trial by expert”, the family report writer thought it would benefit the Child to live primarily with his mother. Another curiosity in the family report is that the justification for the expression of that opinion was that the child “has not been in an equal shared care arrangement for more than a few months”. This statement appears, with respect, to have been focused on events since August 2019 and leaves out of account altogether the shared parental arrangements, which had existed before then up until the May 2019 incidents. The parties had equal shared care from at least October 2016, and from February 2019 had proceeded with shared care and alternating week spend time.
The family report writer made certain recommendations as to the amount of time the Child should spend with the applicant.
A further oddity in the family report recommendations was that, as concerned F, the Child should have no contact with him “if there have been concerns in the subpoenaed documents or reports from DHHS about sexual behaviour”. The expression of this opinion raises a number of issues. First, the author had earlier recognised it was very unlikely that either F, G or the Child had accidentally witnessed oral sex. Secondly, while making a conditional recommendation as to the cessation of contact between the Child and F, no equivalent conditional recommendation was made in relation to the viability of contact between the Child and G if independent evidence provided a basis for concluding that the impugned behaviour had been learned in the respondent’s home as distinct from the home of F’s parents. Thirdly, and most importantly, the family report confirms that the family report writer had not read the DHHS report or the s 11F report each of which would have been important sources of information for the consideration of the matter. Fourthly, the circumstance that the family report writer had not had those reports available to her, served to deny her the opportunity to consider this other independent evidence of the apparently strong bond between the Child and his father. While there may of course be some explanation, it is most surprising that the author felt able to express some of her opinions in the knowledge that she did not have those other important sources of information.
Present application
The parties remain in dispute over the Child’s schooling.
The parties filed detailed affidavits addressing this issue, each of which I have examined. The matters addressed in their affidavits were also distilled by the helpful submissions of their advocates.
Moreover, the issue of schooling was addressed in the family report dated 21 October 2019, doing so pursuant to a direction in the orders made on 1 August 2019. I have also examined that family report.
Applicable principles
Part VII of the Act concerns the subject, Children. It is arranged in 16 Divisions comprising ss 60 – 70Q. Section 65D provides that the court may make such parenting order as it thinks proper. In Bondelmonte v Bondelmonte,[1] the Court said of s 65D:
A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child.
[1] (2017) 259 CLR 662, [8].
The objects of Part VII are stated in s 60B(1). They include to ensure that the best interests of children are met by protecting them from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence: s 60B(1)(b). The principles underlying those objects recognise the manifold rights of children with respect to their parents: s 60B(2). It must also be recognised that the principles in s 60B(2) are expressed as being subject to an exception: “except where it is or would be contrary to the child’s best interests”.
In determining the best interests of a child, two primary considerations must be taken into account. By s 60CC(2), the court must consider:
a)the benefit to the children of having a meaningful relationship with both of their parents; and
b)the need to protect children from physical or psychological harm, or being subjected, or exposed, to abuse, neglect or family violence.
See ss 4(1) (abuse); 4AB(1) (family violence); 60B(1)(c), 60CC(1) (determining child’s best interests); 60CC(2) (primary considerations). Additional considerations are prescribed by sub-s.60CC(3)(a)-(m).
The court is required to give greater weight to protecting children from physical or psychological harm and from being subjected, or exposed, to abuse, neglect or family violence.[2] Where the circumstances require, the need for protection from harm as addressed by par 60CC(2)(b) may well assume prominence over allowing for a meaningful relationship with both parents as addressed in par 60CC(2)(a). This conclusion is reinforced by the exception provided for in par 60B(2).
[2]By operation of amendments to the Act effected by sub-s 60CC(2A) which require the court to do so in respect of proceedings instituted after 7 June 2012.
When deciding what parenting orders ought to be made in proceedings under Part VII of the Act, the best interests of the children are the paramount consideration: s 60CA. Accordingly, the principles contained in s 60B(2), which express rights of children in relation to their parents, may yield to the paramount consideration expressed in s 60CA that in deciding whether to make a particular parenting order, a court must have regard to the best interests of the child. Approached another way, where it would be contrary to the child’s best interests to make orders which accord priority to the principles in s 60B(2) (as by facilitating the child’s right to spend time on a particular basis with both of their parents or other people significant to their care), the mandate, which is expressed by the paramount consideration to pay regard to the best interests of the child, may support orders appropriate to promoting and protecting the child’s best interests including, orders that may protect a child from harm.
Interim orders
The principles in Goode v Goode, apply to the determination of an interim application for parenting orders.[3] There, the Full Court drew attention to the amendments to Part VII of the Act,[4] the objects of Part VII and the mandatory requirement expressed in s 60CC that the Court must have regard, as the paramount consideration, to the best interests of the child in deciding parenting orders.[5]
[3] (2006) 36 Fam LR 422, [66]-[82].
[4] The relevant amendments to Part VII took effect from 1 July 2006.
[5] (2006) 36 Fam LR 422, [7]-[10].
The Full Court recognised that interim proceedings were interlocutory in nature and confirmed some statements in Cowling & Cowling,[6] accepting that the procedure in making interim parenting orders would continue to be an abridged process such that the scope of enquiry was, of necessity, to be significantly curtailed from that which obtained at a trial. Yet the Full Court recognised that that principle was constrained by the requirement “that the court must have regard to the best interests of the child as paramount in deciding what interim orders to make”.[7] In holding that Cowling’s case must be reconsidered in light of the amendments to the Act, the Full Court held:[8]
In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child. (emphasis added)
[6] (1998) 22 Fam LR 776.
[7] (2006) 36 Fam LR 422, [69].
[8] (2006) 36 Fam LR 422, [72].
Goode’s case holds that the Act evinces a legislative intent that generally favours the substantial involvement of both parents in the lives of children, both as to parental responsibility and as to time spent with children. However, the general legislative intention in favour of substantial parental involvement cannot be read as being divorced from the mandate to observe the paramount consideration of the child’s best interests, the prescription to give greater weight to the need to protect children from harm, from abuse and family violence, or the exception to s 60B(2) that the child’s rights to parental involvement may yield as to what would otherwise be in their best interests or reasonably practicable.
The following principles stated in Goode’s case[9] are applicable when following the legislative pathway:
In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
[9] (2006) 36 Fam LR 422, [82].
(e)-(k) . . .
Relevantly, for the purposes of the present application, Goode’s case confirms that the abridged conduct of interim applications for parenting orders remains qualified by the need to protect children from harm or from being subjected to or exposed to abuse or family violence.
Goode’s case holds[10] that in making interim decisions, the legislative pathway must be followed notwithstanding that the court will often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child.
[10] (2006) 36 Fam LR 422, [81].
In the context of the present application for interim parenting orders, the court must have regard to the considerations in ss 60CC(2)-(3), and, where the exception in s 60B(2) is engaged, that the rights of the child in relation to their parents should yield to the paramount consideration of what orders are in the child’s best interests: s 60CA.
It must also be recognised that the capacity to evaluate and weigh the material on an interim hearing is constrained by those considerations. For that reason, the conclusions expressed at an interim hearing are necessarily couched in qualified terms.[11]
[11] Marvel & Marvel [2010] FamCAFC 101, [120]; SS & AH [2010] FamCAFC 13, [88].
The court is nonetheless not required to ignore a contention or evidence merely because it is untested.[12] To the contrary, having regard to the imperative requirements of s 60CC(2A), the court must give greater weight to the risk to a child of exposure to abuse, neglect or family violence and for those reasons must assess the risk of such harm. This assessment requires a predictive evaluation of the likelihood of the occurrence of harmful events and then consideration of the severity of the impact caused by those events, neither of which can be postponed.[13]
[12] SS & AH [2010] FamCAFC 13, [100].
[13] Deiter & Deiter [2011] FamCAFC 82, [61].
However, because there will be little uncontested evidence at an interim hearing, only limited consideration of the factors identified in s 60CC may occur and such consideration as is required at an interim hearing is in large measure defined by the manner in which the parties join issues.[14]
[14] Banks & Banks [2015] FamCAFC 36, [47]-[50].
The court well recognises that, while they should be considered, an exhaustive discussion of the factors in s 60CC is not required. Indeed, to do so may risk that sight is lost of the forest for the trees, including where the available evidence leads inexorably to a particular conclusion. Instead, the paramount consideration is to have regard to a child’s best interests. The fact that I have not traversed each of the considerations identified by s 60CC or every aspect of the parties’ evidence does not mean that they have not been considered. It largely reflects that I have examined the issues that were emphasised by the parties’ submissions. Put another way, while I have regarded the parties’ submissions as identifying the relevant considerations, I have not disregarded other considerations addressed by s 60CC unless they are plainly irrelevant.
Schooling
The principles applicable to the determination of a schooling dispute are well settled. As in all parenting proceedings, decisions as to schooling are to be determined having regard to the best interests of the child.[15]
[15] Act, ss 60CA – 60CC.
Education is a major long-term parenting issue: Act, s 4. Where parties have equal shared parental responsibility, they are each entitled to participate in the decision-making process relating to educational issues.
Where a schooling application is brought forward on an urgent basis, it is not, in a legal sense, a final order; accordingly, it is appropriate to determine the matter on the principles applicable to an interim hearing: Sheill & McMurr.[16] I have addressed those principles above.
[16] (No.2) (2014) 51 Fam LR 385, [52]-[53].
There is no legal presumption that favours a child’s primary carer choosing the relevant school that the child attends: Re G, Children’s Schooling (Re G);[17] Low & Chapman.[18] Consequently, there is no onus of proof cast on either party in the determination of the application.
[17] (2000) FLC 93-025, [29], [45], [65].
[18] [2017] FCCA 3102, [48].
The day-to-day reality of where a child does reside predominantly with one parent is, however, of relevance.[19] In general, it will commonly be in a child’s best interests to attend school which is close to his or her predominant place of residence: Bilz & Breugelman;[20] Re G.[21] However, to state a general principle in that form necessarily invites attention to the anterior questions: what is the child’s predominant place of residence? Why is it in a child’s best interests concerning attendance at a school which, although close to one residence, is distant from the other?
[19] Re G, (2000) FLC 93-025, [65].
[20] [2013] FamCA 578, [82] (Austin J).
[21] (2000) FLC 93-025 [92]-[93].
The parents’ interests in securing an arrangement that is convenient for them is a matter that is appropriate to take into account: Eden & Eden-Proust.[22] This is because, while the interests of the child are required to be the paramount consideration, s 60CA does not provide that those interests are the sole consideration: AMS v AIF;[23] Eden & Eden-Proust.[24] It follows that some regard should be had to the relative inconvenience to each of the parents with respect to matters such as any necessary transport arrangements: Eden & Eden-Proust.[25]
[22] [2011] FamCAFC 138.
[23] (1999) 199 CLR 160, [193] (Kirby J).
[24] [2011] FamCAFC 138, [60].
[25] [2011] FamCAFC 138, [61]-[62].
For example, in Low & Chapman,[26] Monahan J observed that to enrol a child at a school which was located at a place mid-point between the parties’ residences was perhaps ‘an obvious option’ where the parties live some distance apart. I did not understand His Honour to be suggesting any more than that such an option may be an obvious point for consideration alongside any other suitable options.
[26] [2017] FCCA 3102, [31], [64].
While it will ordinarily be of importance to consider the effect on the resident parent, this does not mean that the convenience of the non-resident parent is ignored: Bilz & Breugelman.[27] Again, it may be added that the distinction between a resident and non-resident parent becomes diluted where the parties have agreed upon a week about parenting arrangement, particularly one that has been on foot and to which the parties have adhered to for some years.
[27] [2013] FamCA 578, [82].
The views of the children may be a relevant but usually not a determinative consideration: s 60CC(3)(a) Bilz & Breugelman;[28] Re G.[29] The child’s views on schooling may be of lesser weight if the child is of a young age: Stevens & McLaren.[30]
[28] Ibid, [82].
[29] (2000) FLC 93-025, [96].
[30] [2017] FCCA 2960, [34].
The process of evaluating competing school proposals should not entail an assessment of the relative merits of the schools preferred by the parties, at least in circumstances where those schools are prima facie satisfactory: Bilz & Breugelman.[31] The location of the school to the children’s residence remains an important factor: Re G.[32]
[31] [2013] FamCA 578, [82].
[32] (2000) FLC 93-025, [92].
The court may be assisted in the resolution of a schooling dispute by the opinions of an expert: Stevens & McLaren.[33] By s 60CD(2) the court may ‘inform itself of views expressed by a child’ by a number of means, including a report given to the court by a family consultant under s 62G(2) or, subject to the Rules of Court, ‘by such other means as the court thinks appropriate’: Bondelmonte.[34]
[33] [2017] FCCA 2960, [76].
[34] (2017) 259 CLR 662, [19].
Competing views have been expressed as to the relevance of the parties’ agreement as to how schooling should be implemented. In Eden & Eden-Proust,[35] Thackray J indicated that the existence of an agreement between parties would be an important factor. In Re G,[36] the parties’ prior agreement on the issue was held not to carry much weight.
[35] [2011] FamCAFC 138, [48].
[36] (2000) FLC 93-025, [92]
Consideration
In making interim decisions, the legislative pathway must be followed notwithstanding that the court will often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child.[37]
[37] Goode’s case, (2006) Fam LR 422, [81].
The parties’ submissions and those of the ICL did not closely follow the progressive or staged analysis that is identified in the authorities addressed above. Adopting the principle that the consideration which is required at an interim hearing is largely defined by the manner in which the parties have joined issues,[38] I decided upon the orders that ought be made in the Child’s best interests having regard to their submissions.
[38] Banks & Banks [2015] FamCAFC 36, [47]-[50].
The parties competing proposals and relief being sought are clear.
The sole issue in this application involves the question of whether the Child should attend one school or another.
As concerns contested facts, as stated at [3] of these Reasons, I have made no ultimate findings as they are necessarily conditioned upon them being tested and evaluated at trial. Nor do I rehearse all of the matters that have been considered above. The observations which have been made have provided some context to the nature of the present application and why it was made. Where there has been agreement on particular matters it has been noted.
The following considerations may be distilled from those materials.
The parties have consented to equal shared care and week about arrangements with changeovers occurring at each other’s home on Sundays.
The applicant lives with his partner of four years and their infant child. They live in a home that they have purchased in Suburb D. He works a five-day week, leaving for work at 5:45am and arriving home by 3:15pm.
The respondent lives with her partner, his two children and their twins in a five bedroom rental property. It is not clear as to the number of occasions on which she has moved residence in recent times.
The respondent’s partner works as a tradesman in the city. When interviewed for the family report, the mother stated that she was due to commence a casual babysitting role three days per week.
Both of the parties appear to have settled in their new relationships.
It is a 20 minute drive between the parties homes.
The parties submissions were somewhat elastic as to the precise distances, and travelling times, from their respective residences to one or other of the schools. This evidence could have been more precise.
Suburb C Primary School is about 3.5 km from the respondent’s house. But it is about 20 km from the applicant’s house. However, it is a 20 minute drive from the father’s home to C Primary School. As the present arrangements are for equal shared parental responsibility with the Child residing in the parties respective residences on alternate weeks, it follows that in the week the Child was living with the applicant there would be a 40 to 45 minute round-trip involved in the delivery and collection of the Child each morning and afternoon respectively.
It is about 10 to 15 minute drive to A Primary School from the applicant’s house and a similar drive time from the respondent’s house. Whatever be the precise position, these travelling times are not unduly onerous to either party. The position is quite obviously different as concerns the potentially 40 to 45 minute round-trip mentioned above.
At present, the Child continues to attend two preschool centres. Consistently with the views of the s 11F consultant, the choice of day care centres appears not to have been child focused but to suit the parents respective convenience for the weeks that the Child is in their care.
Before attending kindergarten in 2019, the Child had attended an early learning Centre in Suburb B. He had also been enrolled in sports in Suburb D but it appears the respondent withdrew the Child from that enrolment, instead enrolling him at sports in Suburb C. Likewise, the Child is enrolled in sports in Suburb C.
The children of the respondent’s partner spend time with their father in the same week that the Child spends time with his mother. Those children attend, or are planned to attend, Suburb C Primary School.
The respondent has unilaterally, and without the applicant’s consent, enrolled the child at Suburb C Primary School. That this occurred is to be assessed in the context that the applicant made arrangements for mediation by FDRS in May 2019 which the respondent failed to attend. Similarly, it seems sufficiently clear that the respondent unilaterally terminated the Child spend time with his father following his disclosure at mediation that the Child had exhibited sexualised behaviour which, on one view, was traced from the Child’s disclosure to one or more incidents involving the respondent’s stepdaughter. The respondent instead attributed the source of this learned behaviour to F. As the family report writer noted it seemed inherently likely that the Child’s responses to any enquiries upon this subject were likely to be unreliable. Until DHHS initiated its investigation, the parties were essentially agreed that they were “on the one page” about how to handle the issue. Nonetheless, the respondent appears to have reacted somewhat violently to the ensuing DHHS investigation, including by making application for an IVO that she admits was motivated in part by the schooling dispute. Neither parent makes allegations against the other of sexually inappropriate or other abusive conduct toward the Child.
There has been an agreed restoration of the status quo for agreed shared parental responsibility and a resumption of alternate weekly spend time.
Suburb C Primary School caters for 177 students where each has a class of about 20 students with teachers able to spend individualised time with the children. The school has positive ratings. Several of the Child’s close friends will be attending Suburb C Primary School in 2020. The Child has some familiarity with the school by reason that the respondent drops off and collects her partner’s child from that school. The Child’s twin siblings will attend the school in 2023. I accept that these matters would aid in the Child’s transition to school.
A Primary School is situated on a 17 acre site located in a natural bush setting. It caters for 320 students, including two Prep classes where class sizes are capped at 20 students. In addition to the teacher there is a teacher’s aide. The school provides before and after school care. It also provides a range of facilities and extra-curricular programs.
As noted above the Child had attended an early learning centre in Suburb B for approximately three years. He had also been enrolled in sports in Suburb D, being a town from which children are enrolled at the A Primary School. As a result, of each of these matters, the Child knows other children who will be attending that school, including his best friend from childcare.
Neither of the parties are practising Catholics and the respondent denies the applicant’s sworn evidence that he attended A Primary School, stating that he attended Suburb E Primary School.
As also noted above the family report writer considered it very important for the Child to have little other emotional or psychological changes and adjustments to make in 2020 because, developmentally, primary school is a significant milestone. Each of those considerations should be accepted. However, it does not follow and I do not accept that the selection of Suburb C Primary School becomes the default or only means of promoting that the Child does not face such changes and adjustments.
As noted above, the trial of parenting issues is not trial by expert and it should not be assumed that the tender of an expert opinion will in all circumstances be of determinative significance upon a matter put in issue by the parties. In Amaca Pty Ltd (Under New South Wales Administered Winding Up) v King,[39] Nettle, Ashley and Redlich JJA undertook a detailed consideration of the topic ‘Trial by experts?’ Their Honours held that a court is not required to have competent or trustworthy expert opinion before being entitled to make an affirmative finding upon a disputed fact and that, to the contrary, “the tribunal of fact is authorised to decide, on all the evidence, that the plaintiff has established that fact as a matter of probability”.[40] Those principles are instructive in the present case. In particular, to the extent that some shortcomings may be noted in relation to the family report, those matters may be more fully addressed at trial. For present purposes, I do not consider the basis on which the family report made recommendations as to the selection of one school over another to be sufficiently persuasive that I should adopt it having regard to all of the evidence that was before me.
[39] [2011] VSCA 447.
[40]See also Ted Brown Quarries Pty Ltd v General Quarries (Gilston) Pty Ltd (1977) 16 ALR 23, 25-26 (Barwick CJ); HTW Valuers (Central QLD) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640, [47] (Gleeson CJ, McHugh, Gummow, Kirby and Hayden JJ); TCL Air-conditioner (Zhongsha) v Castel Electronics Pty Ltd [2014] FCAFC 83, [166] (Allsop CJ, Middleton and Foster JJ).
Insofar as submissions were made that the Child has no religious background and that the school has a strong focus on A Primary School education, the applicant readily accepted that if the respondent was opposed to such education then the Child should not be enrolled in those religious classes which are, in any event, optional. In this regard, I note the applicant’s initiating application, together with his initial affidavit, actively promoted schools other than A Primary School. By contrast, Suburb C Primary School is and remains the only school in the contemplation of the respondent. An important aspect to the applicant’s submission was not that he was a devout Catholic. Rather, he assigned value to the benefit to the Child of receiving an education which valued and placed emphasis upon caring for one another.
The respondent advances a submission that F will also be enrolled at A Primary School and then points to the opinion evidence of the family report writer which cautioned, in conditional terms, against the Child having contact with him. I have noted the somewhat regrettable circumstance that the author of that report had not been provided with either the DHHS report or the s 11F report. I reiterate the observations made in relation to those issues at [84] above.
Further, it is of concern that in neither of her initial or more recent affidavits are allegations made by the respondent that the applicant is controlling or manipulative. Neither are such allegations made in her Notice of Risk. Yet part of the basis on which the family report writer was being asked to make parenting recommendations, including in relation to schooling, was that the respondent made those allegations during her interview. Without investigating whether these allegations are recent invention, the weight that could properly be attached to them is diminished by the circumstance that they had not been made previously. If allegations of recent invention are to be raised, they must be put to the party against whom they are made.[41]
[41] Commissioner of Taxation v Cassaniti [2018] FCAFC 212, [45] (Steward J).
The family report writer considered it would be preferable for the Child to attend Suburb C Primary School with his stepsiblings. The author appears to have recognised that to the extent the obligation of driving was onerous, it would be a reciprocal burden for the parties. Again, it seemed implicit in the opinion that having regard to the working obligations of both the applicant and the respondent’s partner respectively, the driving burden was one which would fall on the respondent in the week where the Child resided with her and with the applicant’s partner in the week where the Child resided with the applicant.
While it is appropriate to take into account, the parents’ interests in securing an arrangement that is convenient for them, equally, it must be recognised that what is ‘convenient’ for one party may impose a corresponding ‘inconvenience’ on the other. This is starkly illustrated in the present case where Suburb C Primary School is 3.5 km from the respondent’s house but ~20 km from the father’s house.
Contrastingly, A Primary School is at a midpoint between the two houses where the Child will reside in alternate weeks.
The family report writer seems to identify the obligation to pay the private school fees of attending A Primary School as contributing to an increase in conflict rather than a reduction in it. The identification of this factor seems not to have been stated by either party but rather was one which the author supposed would occur. Another point of view is that the applicant is prepared to incur annual fees of educating the Child at a private school because he considers that education to be in the Child’s best interests.
While the considerations raised by the family report writer are relevant, and I have considered them, they are not determinative and the whole of the case must be assessed.
Section 60CC considerations
The court must consider the primary and additional considerations set out in sub-s 60CC(2)-(3) when determining what is in a child’s best interests including in an application of the present kind: sub-s 60CC(1). The parties quite properly gave differing levels of attention to the many considerations posed by sub-s 60CC(2)-(3). These reasons reflect the levels of emphasis given to them by the parties respectively.
The primary considerations to be brought into account are twofold. First, the benefit to the child of having a meaningful relationship with both of his or her parents. Secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.[42]
[42]Act, para 60CC(2)(b): ss 4(1) (abuse); s 4AB(1) (family violence); ss 60B(1)(c), 60CC(1) (determining child’s best interests); s 60CC(2) (primary considerations).
As to the primary considerations it is clear that the Child has and should maintain a meaningful relationship with both of his parents. I do not accept that he faces a risk of harm either as a result of his relationship with, or being in the care of, either parent. Nor do I accept that the Child is at risk of harm by being enrolled at either of the proposed schools.
Views of the child – para 66CC(3)(a)
As the Child is at pre-school age, the applicant correctly submitted that his views should not be given any weight. I agree. To that extent I discount the mother’s evidence that the Child has expressed a view upon the matter. In reaching a conclusion, I draw upon the expert evidence of the family report writer that statements made by children of this age may well be unreliable.
Relationship of the child – para 60CC(3)(b)
I accept that the Child has well-established bonds with each of his parents together with their partners, his stepsiblings and half siblings.
I do not accept that for the Child not to be enrolled at C Primary School would damage those relations or preclude him from strengthening his bonds with any of them, in particular with the other children.
There was some force in the submission that as the Child presents as a vivacious and enthusiastic Child who is eager to engage in play,[43] and likes to play outdoors that he may well benefit from the freedom of an educational environment which is located in 17 acres of natural bush.
[43] Section 11F report, p. 2.
Decision-making – para 60CC(3)(c)(i)-(iii)
I have set out in some detail above a variety of incidents in which decisions have been taken unilaterally by the respondent in relation to matters which, properly understood, were decisions for which both parents were entitled to give due consideration.
I reiterate the opinion of the s 11F consultant that to this point, decisions as affecting the Child have been parent rather than Child focused. Both parties need to be more child focussed. Only the applicant appears to have completed a post-separation parenting program.
Insofar as the family report writer appeared sympathetic to the respondent’s claims that the applicant was manipulative and controlling, no such claims were levelled by the respondent in either of her affidavits or notice of risk. The absence of those allegations was the more notable where the respondent’s second affidavit was directed to the present application and the issue of schooling.
Manner of maintaining the child – para 60CC(3)(ca)
The additional consideration to which para 60CC(3)(ca) is concerned draws attention to the extent to which each of the Child’s parents has fulfilled or failed to fulfil their obligations to maintain the child.
I regard as commendable that the applicant has undertaken to be solely responsible for the Child’s educational costs at primary school. For the reasons above I do not accept the view that this would contribute to an increase in conflict rather than reducing it. Given the history of the matter to this date, if the costs of that education became an issue in the future, I have little doubt that the respondent would immediately remind the applicant of his undertaking to bear those costs.
Effects of any changes on child – para 60CC(3)(d)
The applicant correctly accepted that beginning school represented a significant milestone in the life of a child. In this case, the Child has attended childcare and preschool centres and participated in extracurricular activities.
Whichever school the Child was to attend his transition will occur in circumstances where he will know other children from day one.
The evidence contra-indicates that the Child is shy or anxious. Rather, it suggests that the Child will embrace the experience of schooling.
Practical difficulties – para 60CC(3)(e)
I have discussed this topic above, particularly in the context of the relative distances and travelling times between the parties’ residences.
I am not satisfied that there are any relevant practical difficulties which militate against the selection of A Primary School. However, for the reasons above I am satisfied that there are practical reasons why the selection of Suburb C Primary School would operate to the detriment of the Child in those weeks where he is living with his father and travelling at least 20 to 25 minutes each way (with the driving party travelling for twice that amount of time both in the morning and afternoon).
Child’s needs – para 60CC(3)(f)
I have also addressed the parties’ capacity to provide for the Child’s best interests. I think there was some force in the submission that the respondent’s objection to A Primary School and her preference for Suburb C Primary School was largely based on her own convenience and in disregard of the relative inconvenience to the applicant and/or his partner respectively.
In any event it is clear that both parties have the capacity to facilitate the child being in attendance at either school.
I also accept that having regard to the recommendations of DHHS and the s 11F consultant respectively of the desirability that the Child should have access to counselling, the pastoral care available at A Primary School may well compliment that counselling.
Characteristics of the child – para 60CC(3)(g)
Each of the parties correctly submitted that the Child was ready to start school. Their submissions variously described him as a bright boy with an enthusiastic personality who liked playing outdoors.
Other matters
No other sub-s 60CC(3) factors are the subject of submission.
Conclusion
Ultimately, where the parties have agreed on equal shared parental responsibility for a reasonably significant period, expressly agreed in such equality when defining the relief sought in their initiating application and response respectively and resuming such parenting arrangements following the impasse following the May 2019 incidents, a powerful consideration supports the conclusion that the Child should receive an education at a midpoint between the parties’ residences. Particularly is that so where, as here, the travelling times to A Primary School cannot be considered onerous for either of the parties.
In like situations, it has been recognised that any attempt to explain the preferred outcome runs the risk of presenting a solution which appears arbitrary: Eden & Eden-Proust.[44] This arbitrariness is a product of pressing a contested interim application. The parties, being unable to agree, present two choices, and (unless, as a matter of discretion, the court concludes that neither is in the Child’s best interests), the court must select one of them. The difficulties so presented are themselves a by-product of the parties’ failure to adopt pro-active steps to see that their Child’s primary education was properly addressed before this date.
[44] [2013] FamCAFC 138, [67].
I certify that the preceding one hundred and seventy-three (173) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 14 November 2018
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