MALCHER & MALCHER

[2013] FamCA 1000

FAMILY COURT OF AUSTRALIA

MALCHER & MALCHER [2013] FamCA 1000

FAMILY LAW – CHILDREN – Best Interests – Equal shared parenting responsibility – Where the father sought increased time with the children – Where no change to the living arrangements for the children was ordered – Schooling – Where the mother and father do not agree on which school the child should attend – Where one school is significantly closer to the residences of the mother and father – Where the burden on the child of travel to school was a key consideration – Where an order was made for the child to attend the school closer to the residences of the parents.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC & 65DAA.

Champness & Hanson (2009) FLC 93-407;
McCall & Clark (2009) FLC 93-405;
Re G (Children’s schooling) [2000] FamCA 462; 26 Fam LR 143; (2000) FLC 93-025.

APPLICANT: Ms Malcher

RESPONDENTS: Mr Malcher

FILE NUMBER: SYC 3808 of 2012

DATE DELIVERED: 18 December 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 6 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr T North SC

COUNSEL FOR THE RESPONDENT: Mr G Richardson SC

Orders

1. The parties shall forthwith do all things and sign all documents in order to facilitate the attendance of the child D born … 2006 at the W School commencing with the 2014 school year.

2. The Court noted the terms of interim parenting orders made by consent on 6 December 2013.

3. Otherwise the Application in a Case filed by the mother on 12 September 2013, her Reply filed on 13 November 2013 and the Response to an Application in a Case of the Father filed on 13 November 2013 are dismissed.

4. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Malcher & Malcher has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3808 of 2012

Ms Malcher

Applicant

And

Mr Malcher

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are interim parenting proceedings involving the children B who is 11 years of age, C who is 10 years of age and D who is seven years of age (“the children”). The children live in a shared care arrangement with their parents pursuant to interim consent orders.

2. The controversy before the court arises because:

   a)The parents cannot agree about the school to be attended by the child D commencing in 2014, she being unable to continue at her present school; and

   b)The father seeks and the mother opposes an increase in the time he spends with the children. The proposal would increase the time with the father by one night each week.

3. There was a further issue between the parties in respect of the living arrangements for the children during the upcoming Christmas holidays. However the parties were able, with the assistance of their lawyers, to compromise that issue and orders were made in terms of their agreement.

Applications

1. The mother filed her Application in a Case on 12 September 2013. The mother filed a Reply on 13 November 2013 but it did not raise issues that were addressed during the interim hearing.

2. The father filed a Response to the mother’s application in a case on 2 October 2013.

Written Evidence

1. The mother relied on:

   Affidavit of the mother sworn 28 June 2012 and filed 29 June 2012 paragraphs 37-43, 49-80 & 147-166

   Affidavit of the mother sworn 1 November 2012 and filed 2 November 2012 paragraphs 28-33 & 41-49

   Affidavit of the mother sworn 11 September 2013 and filed 12 September 2013

   Affidavit of the mother sworn and filed 13 November 2013

   Affidavit of the mother sworn and filed 6 December 2013

2. The father relied on:

   Affidavit of the father sworn and filed 13 July 2012 paragraphs 14-24, 66-90, 113-143 & 158

   Affidavit of the father sworn 9 November 2012 and filed 12 November 2012 paragraph 3

   Affidavit of the father sworn 1 October 2013 and filed 2 October 2013

   Affidavit of the father sworn and filed 5 December 2013

Oral Evidence

1. Each of the parties was briefly cross-examined.

Expert Evidence

1. The following expert evidence was relied on:

   Report of Single Expert Dr A dated 14 March 2013

   Child Responsive Program Memorandum prepared by Family Consultant dated 13 November 2013

The Hearing

1. Save for brief cross-examination of the parents in respect of the schooling issue, the hearing was conducted on the papers on 6 December 2013 and judgment was reserved.

Short History

1. The mother is 45 years of age and works as a medical professional at the R Hospital. The father is 42 years of age and he is self-employed as a financial services professional. He lives with and is in a relationship with Ms G who is 25 years of age. The parents commenced living together in 1999. They were married in 2000 and separated on 1 March 2011.

2. There are three children of the marriage – B, who was born in 2002 and is 11 years of age; C who was born in 2003 and is 10 years of age and D who was born in 2006 and is seven years of age.

Credibility and Submissions

1. There are some factual disputes and the independent material is inconclusive on some of those issues. Therefore it is relevant to refer to the creditworthiness of the parties.

2. Neither of the parents was an ideal witness. They each see matters from their own perspective. Neither of them was willing to make concessions in relation to their own conduct. They each knowingly or carelessly allowed the records held by two schools about the contact details for the parents to be changed so that it was less likely that the other parent would receive information in relation to the child D’s schooling. Neither would concede that fact. While the parties lived under one roof the mother changed the contact address with a school to her private mail box. The father made no effort to ensure that the mother’s contact details were included as emergency contact details at a school.

3. The mother’s evidence about when and why she brought forward the child D’s enrolment at X School proved unreliable in the face of subpoenaed school records, at least as to the timing of that application. The errors including, when she received a survey from X School about a proposed school bus service, when the service commenced (in each case the wrong year was used) and when she first had discussions with the school, were all apparently in favour of the mother’s case.

4. That said, it is not possible to generally prefer one of the parent’s version of disputed events over that of the other. Findings are not possible on all issues of fact but some inferences are available from the uncontroversial facts.

Background Facts

1. The parents commenced living together in 1999. They were married in 2000 and separated on either 18 February 2011 or 1 March 2011.

2. At all relevant times the parties wanted the children to attend private schools.

3. The children were placed on the waiting lists of several schools at birth.

4. The child D was born in 2006.

5. In early January 2006 the parents jointly signed and then lodged an application to enrol D to attend the W School from 2014, when she would commence Year 3, through to Year 12.

6. Ten days later the parents jointly signed and then lodged an application for D to attend the X School from 2018, when she would commence Year 7, through to Year 12.

7. It is an agreed fact that the X School application was made from 2018, when D would enter Year 7 as the parents were concerned about her travelling a long distance to primary school.

8. In July 2006 the parents jointly signed and then lodged an application for D to attend V School from 2014, when she would commence Year 3, through to Year 12.

9. It is the mother’s evidence that X School was the parties’ first choice of high school for D. The father does not agree, deposing to them having a preference for W School. Neither party was directly challenged about that issue in cross-examination. The objective facts do not clearly favour only one case.

10. Importantly, it is common ground that the parties agreed to send D to W School from Year 3 (2014). The mother deposed that her agreement to that course was a compromise. She recalled the father saying: “We will send [D] to [W School] for 4 years so that public transport is not an issue. We can then send her to [X School] from Year 7 onwards.”

11. Until the end of 2013 all three children attended the S School. In 2013 D was in Year 2 at the K – 2 preparatory school at N School. Girls cannot continue at S School beyond Year 2 and therefore D must start at a new school in 2014. The mother wants D to attend X School and the father wants her to attend W School.

12. On 16 July 2012 interim orders were made by this Court, by consent. Those orders were amended on 15 November 2012. The interim orders, as amended, provide, among other things:

    ·That the mother have exclusive occupancy of the former matrimonial home at Suburb N;

    ·That the parties have equal shared parental responsibility of the children;

    ·That the children live with the father for about half the school holidays, some special days and during school term:

    oEach alternate week from after school on Tuesday to before school on Wednesday and from after school on Friday to 7.00 pm on Monday; and

    oEvery intervening Monday from after school to 7.00 pm;

    ·That the children otherwise live with the mother.

13. The father and his partner live in rented premises at Suburb N, 4 – 5 minutes walk from the former matrimonial home.

14. In 2012 the mother solicited an offer from X School for the child D for 2014 and without consulting the father, accepted the offer. Further, the mother received an invitation for 2014 for D from W School and without discussing it with the father, did not accept it, causing the offer to lapse. The father enquired about D’s place at W School, discovered that the offer had lapsed, had the offer reinstated and without consulting the mother, accepted the offer.

The Expert Evidence

1. Dr A, a Child Adult and Family Psychiatrist was appointed the single expert in these proceedings. He interviewed the family in February 2013 and his report is dated 14 March 2013.

2. Dr A made no recommendation about the child D’s schooling and I assume from his report that neither of the parties raised the issue with him. Given the limited scope of these proceedings it is not necessary to fully discuss Dr A’s report but some observations might assist.

3. The mother told Dr A that the father had been violent to her and to the children on a number of occasions:

   ·She said that in about October 2010 he picked up the child B in a rage and yelled and screamed. The boys cowered in their bed. He flung a piece of pottery at her head.

   ·At the time of a significant trading loss he slapped her around the head and pushed her around the floor.

   ·On another occasion when the child B damaged his car, the mother reported that the father yanked B out of the car in an angry manner and dumped her and the children out of the car and drove like a maniac on two wheels.

   ·On other occasions he pushed her to the floor and kicked her around in front of one of the children.

4. Dr A raised those allegations with the father and he denied them. He agreed that the mother had been pushed backwards on one occasion but said she had not been hurt. However, Dr A reported: “With regard to the issue of anger management, the father acknowledged that his relationship with [the mother] had been frustrating, which triggered his “temper”.

5. The father acknowledged that his forensic history included an AVO application made on behalf of the mother, which application was withdrawn; an allegation by a friend when he was a youth that he had thrown his friend out of a car; a disagreement with a strata tenant over a petty parking issue; and a low range Drink Drive offence.

6. The children told Dr A that their father shouted and swore. The child B reported that in 2010 the parents had a fight and the morning after the father lifted him and the child C off the ground and sent them to their room. That hurt and the boys were scared. B said that was the only time he had been scared of his parents. B told Dr A that he was not fearful that the father would do that again.

7. Dr A did not express an opinion about the truth of the mother’s disputed allegations of violence by the father. He noted, however, that the father’s manner and presentation during the assessment process was consistent with the mother’s allegations. He also noted “In contrast to her more open and forthcoming style, he was seen to be pedantic and avoidant in response to a range of issues during the assessment process.”

8. Dr A reported that should the mother’s allegations be found to be true, it would be inappropriate to consider the father’s shared care proposal.

The Legislation

1. The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. Section 60B sets out the objects of the Part and the principles underlying those objects.  Relevantly[1] the section provides:

   [1] S 60B(4) adds a further object - to give effect to the Convention on the Rights of a Child done on 20 November 1989 at New York

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

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

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

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

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

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

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

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

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

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

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

   ….

3. Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests. Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.

4. The sequence of decision making starts with parental responsibility. Here, an order was made for equal shared parental responsibility on 16 July 2012. Section 65DAA requires that the court consider making an order for equal time and if that is not ordered, for each party to have substantial and significant time.

The Parties’ Proposals

1. There are two issues:

   (a)The mother seeks that the child D attend X School commencing in 2014 and the father seeks that she attend W School commencing in 2014;

   (b)The father seeks and the mother opposes an increase in the school term time whereby the father would spend time with the children:

   oEach alternate week from after school on Friday to before school on Wednesday; and

   oEvery intervening Monday from after school to before school on Tuesday.

2. Thereby the father seeks that his time would increase by one night each week.

3. Findings are made by reference to what is in a child’s best interests. Having set out the parties’ proposals I will consider what findings are possible about the matters set out in s 60CC, determine the questions before me and make any necessary orders.

Section 60CC Considerations

1. Relevantly s 60CC provides that in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3). Subsections 60CC(2) and (3) set out primary and additional considerations. Turning to the relevant considerations:

Primary considerations

Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

(2)(a) the benefit to the child of having a meaningful relationship with both of the child‘s parents

1. A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.[2] The enquiry is “prospective” which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.

   [2] McCall & Clark (2009) FLC 93-405.

2. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents.  Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. The expression “meaningful relationship” is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a “meaningful relationship”.[3]

   [3] Champness & Hanson (2009) FLC 93-407.

3. Dr A’s report and the competing applications suggest that there is and should continue to be meaning in the relationships between each of the parents and the children.

4. It is submitted on behalf of the father that his proposal for the child D to attend W School will promote the meaningful relationships between the parents and D because she will spend less time in transit to school and therefore will have more time for them.

5. Care is needed before directly linking time spent between a parent and child with the level of meaning in their relationship. I will not make that link here.

6. Similarly, the minor extent of the changes proposed by the father in the interim, to the living arrangements for the children is not likely to affect the meaningfulness of the relevant relationships.

(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. ‘Abuse’ and ‘family violence’ are defined terms.

   “abuse” , in relation to a child, means:

   (a) an assault, including a sexual assault, of the child; or

   (b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d) serious neglect of the child.

2. Section 4AB provides:

   Definition of family violence etc.

   (1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member ), or causes the family member to be fearful.

   (2) Examples of behaviour that may constitute family violence include (but are not limited to):

   (a) an assault; or

   (b) a sexual assault or other sexually abusive behaviour; or

   (c) stalking; or

   (d) repeated derogatory taunts; or

   (e) intentionally damaging or destroying property; or

   (f) intentionally causing death or injury to an animal; or

   (g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

   (h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

   (i) preventing the family member from making or keeping connections with his or her family, friends or culture; or

   (j) unlawfully depriving the family member, or any member of the family member‘s family, of his or her liberty.

   (3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

   (4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

   (a) overhearing threats of death or personal injury by a member of the child‘s family towards another member of the child‘s family; or

   (b) seeing or hearing an assault of a member of the child‘s family by another member of the child‘s family; or

   (c) comforting or providing assistance to a member of the child‘s family who has been assaulted by another member of the child‘s family; or

   (d) cleaning up a site after a member of the child‘s family has intentionally damaged property of another member of the child‘s family; or

   (e) being present when police or ambulance officers attend an incident involving the assault of a member of the child‘s family by another member of the child‘s family.

1. The parties’ affidavits contain a number of allegations of one parent against the other. In particular the mother makes allegations of physical violence and verbal abuse against the father. The father denies the allegations. Dr A noted that there were other factors that were consistent with elements of the mother’s case, including, the father’s presentation at interview and findings made by the mother’s psychiatrist and the comments of the children. There is no independent evidence and neither parent was cross-examined about those issues. I am not able to make findings about the accuracy of those allegations.

2. Except for a reference to the venue for one handover each fortnight in the father’s case, it is not submitted on behalf of either of the parties that this consideration will be of importance in deciding the issues before me.

Additional considerations

(3)(a) any views expressed by the child and any factors (such as the child‘s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child‘s views;

1. In relation to the father’s proposal to extend his time with the children during school term, the report of Dr A refers to views expressed by the children that could be relevant to this issue. Dr A interviewed the family in February 2013.

2. Dr A reported as follows:

   (a)At paragraph 75 of his report Dr A said: “[The child B] explained that he would probably like to spend Thursday, or Wednesday and Tuesday every week with Dad. ‘A couple more days or something, just to make it even 6/8 or 7/7, something like that. Now it’s four and a half days.’ [B] told me that he did not get to see his Dad as much as he would like to. He would like to see him more. He stated that he just spent too much time at Mum’s house. Despite this he did not miss his Dad. He reiterated that he wanted to spend more time with his Dad ‘because, I already said, to make it even.’ He didn’t think his Mum would mind. He thought his Dad would be happy. He didn’t think [Ms G] would mind about this new arrangement. He was not sure about [the child C].”

   (b)At paragraph 89 of his report - when talking about his experience of his time with Dad and time with Mum, the child C commented: “It’s good now, but Dad got more time in the holidays. Two days more that Mum. It was a little frustrating. Right now it’s good as it is.” Dr A goes on to say: “He repeated that he enjoyed Mondays and sleepovers on weekends and spending most of his time with Mum. He didn’t wish to spend more time with his Dad.”

   (c)At paragraph 99, Dr A recorded in relation to the child D, that: “She described liking the current arrangements for residence and contact with her Dad. She thought that it would be good to spend more time with Dad: ‘Because we normally spend more time with Mum and because normally we don’t get to see him sometimes.’”

3. The child D did not express to Dr A any views about which school she should attend from 2014.

4. The father’s evidence in his affidavit sworn 1 October 2013 and filed 2 October 2013 starting at paragraph 43 is to the effect that although he has not encouraged her to dislike X School or to prefer W School, and although he has attempted to limit her discussion of this issue, the child D has discussed this issue with him. The father does not identify when the discussions occurred but deposed that on those occasions D was sometimes in tears and hard to settle. She has said to him words to the effect: “I don’t want to go to [X School]. I want to go to [W School]. All my friends are going to [W School]. Why can’t I go there too?”

5. Further, at paragraph 46 of his affidavit the father deposed that:

   [D] has said to be that she would prefer to continue her education with her current school friends.

   All my friends are going to [W School]. Why can’t I go too?

   I already know so many girls at [W School].

   All my friend’s sisters go to [W School].

6. At paragraph 36 of her affidavit sworn on 11 September 2013 the mother deposed that the child D expressed an interest and appeared excited at the possibility of attending at X School. She does not say what those expressions and appearances were, save to report that D told her: “I will have my own ‘guardian angels’.” The mother said that was a reference to a buddy system for new girls at X School. D also told the mother: “I can choose to play the cello at [X School], Mum.”

7. That evidence is somewhat equivocal but tends to favour W School. In relation to the weight to be given to the child D’s wishes it should be noted that D is only seven years of age.

   (3)(b) the nature of the relationship of the child with:
   (i) each of the child‘s parents; and

(ii) other persons (including any grandparent or other relative of the child);

1. I have referred to the father’s evidence about the child D expressing a desire to attend at W School because of the other children who are there (subject to a doubt about the placement of the apostrophe - the reference was to “friend’s sisters”) or who plan to go there. If I understand the father’s evidence correctly, it is his contention that of 10 female students out of 48 students in D’s year at S School, the other nine are planning to attend at W School next year. If challenged the evidence would not be probative but it was not challenged, save if I understand the mother’s case correctly, as to the plans of two of those students. The available finding is the most of D’s female classmates at S School are attending W School next year.

2. There is no evidence about the nature of the relationships between D and any or all of those persons. Nevertheless, the fact that a number of D’s classmates are attending W School rather than X School next year favours the father’s proposal.

(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and

(iii) to communicate with the child;

1. This factor is not of importance in these proceedings.

(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

1. This factor is relied on by the mother. The thrust of the argument is that the father has the capacity to provide financial support to the mother and he has failed to do so. It is not possible to make findings about this issue. There is a child support dispute on foot and I cannot presume on the outcome. It is common ground that until mid 2009, the father’s parents paid for the children’s school fees. It is the father’s case that he currently has little income. Presumably in aid of an argument that the father is hiding his income or capital resources, the mother points to evidence of his lifestyle expenditure such as overseas travel. The father says he has relied for flights on frequent flyer points. The evidence is suggestive but not conclusive.

   (3)(d) the likely effect of any changes in the child‘s circumstances, including the likely effect on the child of any separation from:

   (i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. Whether here or under 3(m) below, there is the fact that the mother’s proposal will expose D to a significant increase in daily travel.

2. There is also the fact, under the mother’s proposal of separating D from at least some of her current classmates.

(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child‘s right to maintain personal relations and direct contact with both parents on a regular basis;

1. The parents presently live at Suburb N. It is the mother’s evidence that she is responsible for delivering the children to school eight days out of 10 and collecting them six days out of 10. She plans to live in the former matrimonial home pending the resolution of the parties’ property matters. She deposed: “Should the home be sold, I will reside in accommodation in a similar area to the former matrimonial home, if not further north and closer to [X School].” It was put to the father in cross-examination that given his straitened financial circumstances, he may not be able to continue to rent in Suburb N and might move north. He did not agree. The thrust of submissions on behalf of the mother was that the issue of the distance between Suburb N and X School was ameliorated by that evidence. I gather that the argument was that, given the property dispute between the parties, the location of their residences was uncertain and therefore I could not be certain about the travel impost on the child D of the competing proposals. If I have correctly identified the argument, I disagree.

2. I am to make a decision about these issues now. It is not the mother’s evidence, for example, that she intends to move closer to X School. The father has no such plan. Therefore, for the purposes of my determination, D’s trip to school will commence at Suburb N.

3. W School is located at Suburb Y and the impost on D of travelling to Suburb Y from her Suburb N accommodation would be modest. It is submitted by the father that her travel would be less than 10 minutes and there was no serious contest about that estimate. Importantly, the boys too will be at school at Suburb Y.

4. The parties express their evidence about the travel implications of D attending X School differently but there is no meaningful dispute about the matter.

5. The mother’s proposal will take a significant period of additional time out of the child D’s school week. The estimate put in submissions on behalf of the father was one and one half hours each day. The mother variously deposed that the school bus leaves Suburb N at 7.20 am[4] or 7.30am[5] and arrives at X School at approximately 8.00am[6] or approximately 8.05am[7]. Taking her most recent affidavit, that is an estimate of 45 minutes for the morning bus journey. There is then the travel between either home and the Suburb N bus stop and waiting time at either end of the journey. In the former regard, the parties express the distance in terms that favour their respective cases – the mother says two minutes (I assume by car) and the father says 20 minutes on foot. They could both be right.

   [4] Paragraph 18 of the mother’s affidavit sworn 11 September 2013 and paragraph 3 of her affidavit sworn 13 November 2013.

   [5] Paragraph 32 of the mother’s affidavit sworn 11 September 2013

   [6] Paragraph 18 of the mother’s affidavit sworn 11 September 2013

   [7] Paragraph 3 of the mother’s affidavit sworn 13 November 2013

6. The father recently drove between Suburb N and X School and it took him 37 and 43 minutes to get to the school in the morning on 3 December 2013 and 5 December 2013 respectively and 46 minutes for the afternoon journey home on 2 December 2013[8].

   [8] Paragraph 2 of the father’s affidavit sworn 5 December 2013

7. As the father notes, there is the potential for D’s travel to interfere with the parties’ travel obligations for the boys. As the children get older there will be school sport and extracurricular activities based at the schools.

8. True it is, under the current orders, the mother’s proposal will have the greater impost of D’s extended travel borne by her. The problem is, however the transport is shared between the parties, the child D will always bear the travel load. 

9. The distances between the schools and Suburb N, favours the father’s proposal.

10. The mother has ascertained[9] that the tuition fees for the two schools are of the same order. For 2013 the Year 3 tuition fee at X School was $19,650 (for new students payable in 10 equal instalments over the year) and at W School $19,311 (or $18,732 if paid a year in advance). X School has the same fee for pairs of years – Years 3 & 4; 5 & 6 etc). W School pairs some but not all years. It looks as though one school would be slightly dearer in one year and the other, in the next year.

    [9] Annexures O & P to the mother’s affidavit sworn 11 September 2013

11. In three years, if she attended X School, D could apply for a scholarship because of her family connection with the school. If she was awarded that scholarship her fees thereafter would be reduced.

12. For the time being the fees are likely to be paid by the mother. To her credit the mother does not suggest that she would meet the fees for X School but not for W School. The quantum of the fees of the respective schools does not assist in differentiating between the schooling proposals.

13. As to the father’s proposals for an increase in his time with the children. His proposal would mean one less change between households each fortnight and that changeover is not at school. Therefore it could be said that the father’s proposal is more practical and avoids the risk of the children being exposed to conflict.

    (3)(f) the capacity of:
    (i) each of the child‘s parents; and
    (ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

1. This is not a relevant consideration.

(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child‘s parents, and any other characteristics of the child that the court thinks are relevant;

1. Either under this consideration or under 3(m) there is the fact of the mother’s connection with X School. The mother attended X School for her high school years. Other members of her family attended the school. The mother’s sisters, the mother’s mother and two aunts attended the school. In my view this is an important factor that weighs in favour of the mother’s proposal that the child D also attend that school. It appears from the mother’s evidence that D is aware that her mother is an old girl of X School.

2. The father advances that he attended a different independent school from S School, where the boys are enrolled. I take it that he argues that there is no imperative in the parties’ family to have the children attend the schools attended by one of their parents. That is as may be but he cannot gainsay the mother’s evidence that the family connection at X School is important to her.

3. There are different traditions in different families and it is trite to say that some families place greater store on children following their parents’ lead in relation to things such as the school they attend. It seems to me that all other things being equal, a family tradition such as that apparently practiced and valued in the mother’s family is an important consideration in respect of the child D’s schooling.

4. As I have recorded, this factor weighs in support of the mother’s proposal.

   (3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
   (i) the child‘s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

1. This does not apply.

(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child‘s parents;

1. This is not a relevant issue.

(3)(j) any family violence involving the child or a member of the child‘s family;

1. I have referred to this issue above.

(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter;

1. There is no relevant order.

(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

1. This issue could be relevant in that if the child D attends W School in 2014, the mother could agitate for her to relocate to X School in 2018. There is no suggestion that if the situation was reversed, the father would press for W School in 2018.

2. That is several years away and there will be other relevant factors at that time. For example, D will be older and capable of expressing a view that will be increasingly influential. In my view this is not an important consideration.

(3)(m) any other fact or circumstance that the court thinks is relevant.

1. The mother raises the fact that if D is to attend X School in 2018, it would make that transition easier if she starts there now. The problem with that proposition is that there is no suggestion of a current agreement between the parties for D to attend X School in 2018.

2. In Re G (Children’s schooling) [2000] FamCA 462; 26 Fam LR 143; (2000) FLC 93-025 (“Re G”) the Full Court canvassed several authorities in relation to a decision about a choice of schools. There was reference to the debunking of the proposition from earlier cases that would have the parent with whom a child mainly lives, having a greater say in a matter such as this, than the other parent. There is a suggestion of this being raised in the mother’s case before me. She sets out in her affidavits that in order to attend school, D leaves from her home and returns to her home more often that applies to the father’s home. There is reference to the fact that she is meeting the lion’s share of the costs of the children, including, albeit with some difficulty, all of the children’s school fees. In my view, in the context of this case, those matters do not provide support for the mother’s case. In Re G, that issue worked in reverse, with one party’s proposal adding unfairly to the impost on the other party. To the extent that is an issue before me, the mother’s proposal will add to the father’s weekly travel commitments and that would not favour the mother’s case.

3. The mother raises another issue canvassed in Re G. She suggests that the facilities, ethos, school community and environment favour X School over W School. I understand it to be common ground that I am not in a position to make a finding that differentiates between what is offered by the two schools, scholastically or otherwise. Learned senior counsel for the mother asked me to note, however, that the mother is satisfied that X School is superior to W School in several ways, and I do so. In Re G the court noted that the mother had thoroughly researched schools in the area.  Her selection of a school was based on those inquiries. The father in Re G conceded that he had not made similar inquiries and that his knowledge of the school derived from living in the locality for 40 years. Under cross-examination, he further explained that his view of the school was also based on observing the people who had gone there and speaking “to different people about their thoughts” about his favoured school.

4. I cannot find that the mother had thoroughly researched the competing schools. There is at least a risk that she embarked on the enquiries revealed in her affidavits with a particular end in sight. This factor is of no assistance in choosing a school for the child D for 2014.

5. Another issue considered in Re G was the fact of a prior agreement about the choice of school. I have referred at length to the evidence about that issue in the proceedings before me. 

6. It is common ground that the parties agreed to send D to W School from Year 3 (2014). V School being excluded, W School is the only school they booked D into for 2014. The mother deposed that her agreement to that course was a compromise. Compromise or not, that was the agreement. There is no probative evidence that the parents have since agreed to change that decision.

7. In Re G the Full Court did not place much store in a prior agreement: “We do not consider that the fact of a prior agreement between the parties as to [School A] carries much weight in the changed circumstances of the family.”

1. For what it is worth, the fact of a prior agreement argues in favour of the father’s proposal.

2. Turning to the issues to be determined:

Living Arrangements

1. There is an order that the parents have equal shared parental responsibility and therefore s 65DAA does apply.  

2. The importance of that provision is the compulsory, sequential consideration of equal time and substantial and significant time. The conditions for those orders to be considered are unremarkable. It is an obvious pre-condition for any parenting order that it be both in the child’s best interests and reasonably practicable.

3. The second element of the provision has no application here as in my view, there is already in place an arrangement that provides for substantial and significant time. There is no requirement to explore marginal improvements in that arrangement.

4. Therefore I must consider whether the children spending equal time with each of the parents would be in their best interests. It appears from the legislation that this consideration is not limited to the proposals before the court. Here neither parent proposes such an arrangement albeit that the father’s proposal would take the school term arrangements to eight nights and six nights each fortnight.

5. Based in part on the mother’s allegations, Dr A has expressed concern about such an arrangement. In the circumstances it is possible that equal time would not be in the children’s best interests. In as much as neither party has sought it before me, such an arrangement may not be reasonably practicable, in the short term.

6. I will not order that the children spend equal time with each of their parents.

7. I return to the father’s proposals. He seeks that the regime for his time with the children established by the orders of 16 July 2012, as varied on 15 November 2012, be extended over each Monday night. Thus he seeks an arrangement that would mean the children would be with him during school term:

   a)Each alternate week from after school on Friday to before school on Wednesday; and

   b)Every intervening Monday from after school to before school on Tuesday.

8. The mother opposes that change.

9. As to the section 60CC factors, the primary considerations are not relevant. The children revealed a level of ambivalence to Dr A and were not united in wanting an increase in time with their father. The father’s proposal means less ‘tooing and froing’ and would avoid one non-school changeover.

10. There is an issue about whether and in what circumstances changes should be made on an interim basis. Just because an application has been made does not mean that the Court is obliged to make a change.

11. In Australia, parents are responsible for making decisions about the living arrangements for their children. If they cannot agree they cannot approach a Court until they have met the requirements for compulsory mediation. If the dispute comes to a court, the Court must make a decision. That does not mean making one or more interim decisions. There is no entitlement to an interim determination of disputes. More than that, for all the reasons to which the authorities have referred over the years, it can be burdensome and dangerous to impose interim parenting solutions on a family. As a general proposition, as applies here, an interim hearing is usually conducted on the papers. There is little or no capacity for testing the evidence of lay and expert witnesses. The objective material is usually limited. That in turn limits the scope for findings of fact.

12. Parents are free to make decisions about their children on the spur of the moment and without any objective enquiry. A court represents the community and stands in the shoes of the parents. Among other things a court needs to be comfortably satisfied that a change it imposes is better than the current arrangement and in any event, that it does no harm. The abiding concern in relation to interim issues arises where reliance must be placed on evidence that, when tested at a final hearing, may prove false or unreliable. The father’s proposals do not seem inherently unreasonable. Nevertheless, it is not necessary that those matters be addressed now. The few section 60CC factors about which findings are possible, are equivocal. If the parties cannot reach agreement about minor adjustments to the living arrangements then the issue should be left to the final hearing.

13. The question of the costs associated with interim proceedings is not of necessary importance here because the parties did have an issue that had to be determined on an urgent basis. Otherwise, it should also be remembered that, even if the private cost does not concern the parties and it should, there is a considerable community expense in servicing interim hearings.

Conclusion

1. The father’s proposal would make a small change in the living arrangements for the children. The available findings under s 60CC do not comfortably support the father’s proposed changes. The father’s application for those changes will be dismissed.

The child D’s school from 2014

1. As to the s 60CC factors, the primary considerations are not relevant.

2. The child D is only seven years of age. While making positive statements to the mother about X School she has strongly expressed a wish for W School to the father. She made particular reference to fellow S School students attending W School. In Re G the Full Court expressed a reluctance to place much weight on the wishes of children. However, in that case the children were deciding between their current school and another. The Full Court noted that there would be an understandable preference for the existing school. That is not the issue here. The child D will attend a new school in 2014. That said, D is only seven and there is no independent witness to her expressed wishes.

3. The travel impost on D of attending X School in year 3 was a matter that the parties agree, excluded that school from their contemplation when D was born. The only change since then is that D could travel on a school bus rather than a government bus. There are two interlinked factors arising, there is the discomfort of the journey to and from school and the time lost out of D’s school week. Time she could otherwise use for friends, family and recreation. The travel implications strongly favour W School.

4. The fact that a number of S School students will also attend W School next year also favours that school.

5. In 2006 the parties agreed to send the child D to W School from Year 3 (2014). V School being excluded, W School is the only school into which they booked D for 2014. The mother has since changed her mind but the father did not. That factor argues in favour of the father’s proposal.

6. The mother’s connection with X School strongly favours D attending X School.

7. A choice for X School would exclude the risk of further litigation in relation to Year 7 and beyond and if D is to attend X School from 2018, it would make the transition to high school easier if she starts there now. In my view these are not important factors.

8. In Re G the Full Court concluded at paragraph 92 that “weight should be given to the travel commitments associated with the school that the children attend. Where a decision must be made by a Court in circumstances where parents are unable to agree as between two schools which are prima facie very satisfactory, we see advantages to the children attending a school which is closer to the children’s residence.” 

9. Weighing all of the matters referred to above, on balance, the best arrangement is for the child D to attend W School.

Conclusion

1. There should be no change to the living arrangements for the children, other than those agreed between the parties.

2. The child D will commence year 3 at W School in 2014.

I certify that the preceding two hundred and twenty seven (127) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 18 December 2013.

Associate: 

Date:  18 December 2013