Maples and Maples - [2011] FMCAfam 510

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MAPLES & MAPLES

[2011] FMCAfam 510

FAMILY LAW – Equal shared parental responsibility – parents deadlocked on which school child is to attend – child commences grade one – each parent takes child to different school in Mackay each week – interim orders made on urgent basis – oral evidence taken from mother as she unable to get legal aid – child of mixed racial heritage – mother indigenous – father non-indigenous – father legally aided.

Family Law Act 1975, ss.60 CC, 69N

Applicant:

MR MAPLES

Respondent:

MS MAPLES

File Number:

TVC 1058 of 2008

Judgment of:

Willis FM

Hearing date:

18 February 2011

Date of Last Submission:

18 February 2011

Delivered at:

Mackay

Delivered on:

18 February 2011

REPRESENTATION

Counsel for the Applicant:

Ms S.M. Jensen

Solicitors for the Applicant:

Legal Aid Qld Mackay

Solicitors for the Respondent:

In person

ORDERS

The child [X] born [in] 2005 (“the child”) attend [B] School.
Each party forthwith do all acts and things to enrol the child at [B] School.
Any books/school equipment that the father has purchased for

[W] School that can be utilised at [B] School are to be provided to [B] School for the child’s use.
The parties are to attend a Legal Aid Conference to occur after

31 March 2011 as and when requested to do so (or earlier subject to the mother having legal representation available at the conference). If the mother is unable to obtain a grant of Legal Aid, Mrs Jenson is the advise the Court in writing and a Child Dispute Conference will be allocated, with an Indigenous Liasion Officer to be present to assist.
If the matter does not resolve at the Legal Aid Conference, the mother is to file and serve her Response and Affidavit material setting out specifically the Orders she seeks within 21 days of the conference occurring.
The father is to file and serve any further Response or Affidavit material in reply to the mother’s material within 21 days of being served with the mother’s material, at which time a one day trial will be allocated.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CAIRNS

TVC 1058 of 2008

MR MAPLES

Applicant

And

MS MAPLES

Respondent

REASONS FOR JUDGMENT

The parents in this matter are locked in a dispute about which school their 5 year old child [X] should attend. Whilst the parents are engaging in this dispute the child, who has started school this year, is attending two schools. One school during the mother’s week and another school during the father’s week.
What I propose to do today is to make time to hear and determine at least on an interim basis, the issue of the schooling as to my mind this matter is urgent. I am mindful of principles for conducting child-related proceedings under section 69N of the Family Law Act 1975 Cth. (“the Act”) and that I should proceed without undue formality, and in consideration of the needs of the child and the impact that the proceedings or in this case, any delay in making this decision, will have on the child.
The mother who is an indigenous Australian presents today without any legal representation and without any material. She has been served with the father’s documents on 19 January 2011. She says she has been to see a couple of other lawyers, and obviously she has been directed to get legal aid, and I do not know why that has all taken so long. It seems the mother applied for Legal Aid a couple of days ago, on 16 February 2011. In order to proceed with this matter today, I have taken the mother’s evidence from her today by having her sworn in and giving her the opportunity to give oral evidence.
The father who is non-indigenous is legally represented by Legal Aid Mackay and his material has been prepared by Mrs Jensen of the organisation. As to whether the parties have been to dispute resolution, I note also that submissions have been made to me about endeavours to get the mother to go to a legal aid conference, and there is no real explanation that I am aware of yet, as to why she did not do that.
The application is set out in the initiating application of 21 December 2010. There is an affidavit accompanied with that filed by the applicant father, and there is a further affidavit e-filed on 15 February 201l.
The background is that orders were made on 17 February 2009, before Jarrett FM that the parties have equal shared parental responsibility for making decisions about the long term issues of [X] (“the child”), born [in] 2005. The Orders provide for the child to live in the Mackay area, and to live with the father each week from Friday afternoon when the father finishes work, or not before 2.00pm if the father is not working, until 6.00pm on Monday, with the father to ensure that [X] has eaten dinner before he returns to the mother. The balance of the week the child is to live with the mother.
I am not sure how that arrangement fits with what is happening now. I am told by the parties that the child is with the father on Friday morning, which is not actually in compliance with these orders.
However, the material tells me that notwithstanding that order, that the parties have been in dispute about where this child goes to school, and the dispute has actually resulted in this child being dragged from one school to another, which I am horrified to read. The mother complains that the father has taken it upon himself to enrol the child at school in [W] without reference to her. However, given that she has refused to go to legal aid mediation about the issue when invited to do so, that complaint is somewhat hollow.
However, the mother has made her own efforts to engage the father in discussion about the choice of school for [X]. She says that this has been unsuccessful as when she tries to talking to the father about where the child is to go to school, the father won’t directly address the issue but instead he has tried to use the opportunity to say that the child should be living with him. The mother did not agree that the child should live with him. The mother said that the father has told her that the child should, on the basis that he would and should be living with him, therefore go to [W] School. This school is not the school closest to where the father lives, or the mother lives. It is the school closest to where the father’s own mother works.
The father, who according to the orders as I read them, should be spending time with this child from Friday after school to 6 pm on Monday and therefore the arrangement for the time that the child lives with him would involve one collection on Friday afternoon from school, and one delivery and collection to and from school on Monday. Contrary to the Order, it seems that the father has been having the child Friday morning in his care and perhaps the parties have agreed to that, I don’t know, but the impression I have is that the mother said that is the way they have been interpreting the Orders. On their changed arrangement which is different to the Consent Orders, the father already has the child on a Friday morning. The father starts work at

5 am
. He has a rostered day off each alternate Friday.
He tells me that the child should go to [W] school because that way he can make sure the child gets to school which he can do only with the assistance of his own mother who works at [W]. Otherwise, he’s not sure how he will get the child to school. The father lives with his mother at [A], quite close to the mother. The father says taking into account the traffic congestion, he needs the child to attend at [W] otherwise, if he went to a school close to home such as [B] or [A] Schools, his mother would have to drop [X] at 8am in the morning in order to get to her own work. The father considers this is too early to start school. In my view those logistical problems arise from the issue of the father’s own work requirements. The solution he has arrived at however, creates even more difficulties for the mother.
The father’s difficulties arise once in week one (Friday morning which the Orders do not provide for in any event) and twice on the following Monday. I ponder on the benefit of having [X] spend an additional night with his father on Thursday night, only so the father can get up and go to work at 5am. In any event, the difficulties identified by the father, are less as compared to the mother with whom the child lives four nights and five days. The mother has many more days to deliver and collect the child from school, twice each day. The father’s arrangement is therefore to suit his own and in particular his mother’s work obligations and convenience. He has offered me no solution as to how the mother might get the child to school at [W] given that she has no vehicle, other than to say he will get his own mother to drive to the mother’s and collect the child on the days that the child lives with the mother, take him to school and return him each afternoon. I consider that the father has given little consideration to the mother’s wish to be involved in the child’s schooling and little consideration to her position as far as the difficulties in getting [X] to and from school in [W]. The change that the father’s plans involve reduce the mother’s ability to be involved in the day to day schooling of the child and involve the mother being dependent on other’s to get the child to school during her time.
The father also tells me that [W] is a school that is a smaller school and does not have as many students in the prep area. The father says that this factor is an important consideration for him as prior to school commencing, the child had only been to day care or some other similar related child institution for a couple of days a week, and that the day care was only a small centre. Mrs Jensen for the father submits that her instructions are that the father is very mindful that it would be good for [X] to go to a smaller school.
On inquiry by me as to how big the [W] school is and in particular the number of prep classes or students enrolled at [W], I am told by the father and his lawyer Mrs Jensen that there are five separate prep classes at [W] of approximately 24 students in each. On asking as to the size of the [B] school, where the mother wishes him to go, it is agreed that they have two prep classes. On the face of it, the father’s argument is inconsistent with the facts.
One of the considerations I consider is significant for [X] is the fact that he is a child of mixed racial heritage. His mother is an indigenous Australian and the father is not. I am required under Section 60 CC (3) of the Act to look at that as a factor, and consider the child’s right to enjoy his Aboriginal culture and his right to enjoy that culture with other people who share culture, and the impact that any proposed parenting order will have on that right. I have not heard any submissions from the father that there is any better cultural or indigenous program for him at the [W] school. The mother’s evidence however is that some of his cousins are going to [B] School. The comfort and support of having his cousins at the same school together with a genuine opportunity for [X] to engage and share his culture with others who share the same culture is in my view a most positive feature of his attendance at [B] school.
I am aware that there is no presumption in the case law that a child will go to a school, as chosen by the resident parent however, the fact that the child lives longer with one parent than the other is a practical consideration in terms of what is the effect or burden on the resident parent of getting the child to a school that might be further away. The obvious advantage to me, at this stage, is that [B] is close to the mother’s home. It is also close to the father’s home as he lives not far from the mother. [W] is [location omitted] and on the other side of Mackay some distance from either the home of the mother or father. It would require a car trip from the mother’s home, whereas the mother can walk [X] to school at [B] School. The mother, who is the primary parent, does not own a car, and she is not able to get the child to and from home and school if the child attends at [W]. The father’s solution to that is that is to say that he will take charge of that issue by organising his own mother to collect the child from the mother’s each day and return him at the end of the day. I do not accept that as a practical or child focused solution. The child is essentially going to a school which is not in the closest area to the home of either the mother or father.
The mother’s proposal enables her to walk [X] to school as it is close enough for her to do so, both in the mornings and afternoon. It is not practicable for the mother to spend her days catching buses (even if there was such a service) and travel over the other side of town and back to her home, up to four times a day to deliver [X] to school, return home and then return to school in the afternoon and return home again.
In attending the school on the other side of Mackay at the [W] School the child would also be at a school at [W] where, in terms of having friends in the area, it is likely that the friends he would make would live in the surrounding area, rather than closer to either of his mother or father’s homes. At the school closest to his mother’s house at [B] School he is attending a school in his own neighbourhood. He will be able to have friends over after school or go to friends places or after school activities with much less difficulty than adding the expense and inconvenience of going to a school out of his home area. As I have said, both the mother and father live quite close to each other. This consideration applies to the time that the child spends with the father also. I am told by the parties that generally children in the area they each live would be going to [B] School or [A] School. I note that he has spent some time at [B] School already.
In my view this child has already been subjected to the most unnecessary upheaval in the beginning of his school life, because this mother and this father could not agree on a school. I cannot imagine a worse start to school than being dragged from one school to another from week to week. I am horrified that he has had two lots of uniforms, and there have been attempts to make him go to two schools, and I think each of the parents ought to hang their heads in shame that it has come to this.
This application is made in the context of existing parenting Orders. In looking at the provisions of Part V11 of the Act and having considered the particular issues in relation to this discrete issue of schooling, on an interim basis, in this abbreviated hearing, it seems to me that an order that the child attend the [B] School is the Order which is in this child’s interest. It enables him to walk with his mother to and from school most days, it is the school in his own area and close to each of his parent’s homes. It is the smaller of the two schools, which the father submits is his preference, and there are benefits in my view in him attending a school with his cousins. The practical difficulty of getting him to school on the days he spends with the father (and I say again that the Orders do not provide for the child to be living with the father on Thursday nights) is unfortunate, however, on weighing up the factors I have referred to, I consider that his best interests are served by him attending one school and that until further Order, that school should be the [B] School. I intend to Order that each of the parties do all acts and things to enrol him in the [B] School forthwith.
I am aware that books have been purchased by the father for [X] at the [W] school and he submits that this is another reason why I should Order that [X] continue at [W] School. I will make an order that any of those books which are also required at the [B] school are to be provided by the father to the school, who will give them to [X] for use at that school. I do not want a situation where books that have been purchased and are able to be used are withheld from the child simply on the basis (as is my impression of the father’s position) that there is some resistance to allow those books to be used, because [X] is not attending the school of his choosing.
If the father wishes to continue to argue that this child should go to the [W] school on a final basis, a final hearing about that matter will be listed on a date to be determined. I will order the parties to go to a legally-aided conference. Each of the parties must attend and engage in a genuine attempt to resolve the dispute. If for some reason the mother doesn’t get funding as anticipated for the forthcoming legally aided conference, I will direct the solicitor for the father to inform the court accordingly and I will make an notation on the next Order requesting legal aid consider the mother’s application for legal assistance. I consider that the mother should have legal representation at the forthcoming legally aided conference number of reasons. If for some reason the legally-aided conference cannot be organised, I will schedule a child dispute conference, and have an indigenous liaison officer present. I understand that the Legal Aid conference can be organised to occur after the next three weeks.
These orders are staying in place until further order.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Willis FM

Date: 25 May 2011