FAMILY COURT OF AUSTRALIA
Medvitz & Baginski [2021] FamCA 421
File number(s): SYC 4381 of 2019 Judgment of: MCCLELLAND DCJ Date of judgment: 24 June 2021 Catchwords: FAMILY LAW – CHILDREN – Interim parenting – Major long-term issues – Change to the child’s school – Where the father is the primary carer of the child and obtained employment and accommodation involving considerable travel to the child’s current school – Where the child is currently educated in the specialist private school system – Where by her Further Amended Application the mother seeks the child be enrolled in the specialist private school system near the child’s primary residence with the father – Where the father seeks the child be enrolled in the public school proximate to the child’s primary residence – Where child’s best interests support the change in school to that proximate to the child’s residence – Where findings could not be made at the interim stage as to the “merits” of the competing school systems – Mother’s application dismissed.
FAMILY LAW – PRACTICE AND PROCEDURE – Leave to re-open – Where mother sought leave to re-open interim proceedings – Where mother’s Further Amended Application substantially changed the orders as sought – Application of s 69ZN of the Family Law Act 1975 – Where best interests of the child weighed in favour of granting leave to reopen – Application granted.
Legislation: Family Law Act 1975 (Cth) Pt VIII, ss 4AB, 60CA, 60CC, 61C, 61DA, 65AA, 65DAA, 65DAE, 69ZN
Family Law Rules 2004 r 11.10(b)(ii)
Cases cited: Adelstein & Byron [2021] FamCA 4
Banks & Banks (2015) FLC 93-637
Bant & Clayton (2015) 53 Fam LR 621
Bilz & Breugelman [2013] FamCA 578
Goode and Goode (2006) FLC 93-286
Iphostrou & Iphostrou and Ors [2011] FamCA 20
Johnson & Page (2007) FLC 93-344
Loddington & Derringford (No 2) [2008] FamCA 925
Miller & Cooper [2015] FamCA 997
Re G: Children’s Schooling (2000) FLC 93-025
SS & AH [2010] FamCAFC 13
Hon John Fogarty, ‘Unacceptable Risk – A Return to Basics’ (2006) 20 Australian Journal of Family Law 249
Number of paragraphs: 122 Date of hearing: 15 June 2021 & 24 June 2021 Place: Sydney by web conference Counsel for the Applicant: Dr Barnett (15 June 2021) & Mr Campton SC (24 June 2021) Solicitor for the Applicant: Swan Lawyers Counsel for the Respondent: Mr Schonell SC Solicitor for the Respondent: Vizzone Ruggero Twigg Lawyers Solicitor for the Independent Children's Lawyer: Ms Court ORDERS
SYC 4381 of 2019 BETWEEN: MS BAGINSKI
Applicant
AND: MR MEDVITZ
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
24 JUNE 2021
THE COURT ORDERS THAT:
1.The mother is granted leave to re-open the issues subject to the judgment reserved on 15 June 2021, and to rely on the relief set out in her Further Amended Application in a Case and Affidavit, filed on 22 June 2021.
2.The father is granted leave to rely on his Affidavit filed on 23 June 2021.
3.The mother’s Further Amended Application in a case filed on 22 June 2021 is dismissed.
4.The parties shall sign all documents and do all things necessary to ensure that the child is enrolled in Suburb J Public School to commence in Term 3 of 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Medvitz & Baginski has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCCLELLAND DCJ:
INTRODUCTION
This matter concerns an Application in a Case initially filed on 10 June 2021 by Ms Baginski (“the mother”), who is the Respondent in the substantive parenting proceedings commenced by Mr Medvitz (“the father”), for urgent interim orders in respect to the child, X (“the child”) born in 2013. That application for relief was subsequently amended in an Amended Application in a Case filed on 15 June 2021. Subsequent to the conclusion of the proceedings which were heard on 15 June 2021 and judgment being reserved, the mother filed a Further Amended Application in the Case on 22 June 2021 (together, ‘the Applications’), and sought to rely on the relief sought by the mother in lieu of the relief she sought in her Application in a Case filed on 10 June 2021. At the hearing on 24 June 2021, I granted leave to the mother to rely upon her further Amended Application in the Case Filed on 22 June 2021, pursuant to r 11.10(b)(ii) of the Family Law Rules 2004.
Before I commence my substantive reasons for judgment in this matter, I set out my reasons for judgment for granting the mother leave to amend her application.
The major difference between the mother’s initial Application filed on 10 June 2021, and amended on 15 June 2021, is that the mother initially sought orders that would restrain the father from removing the child from her current school which is located in the Northern Suburbs of Sydney to a school located in the Eastern Suburbs of Sydney. The mother no longer presses that aspect of her application. She does press, however, that orders be made requiring the father to enrol the child in the specialist private school system in the Eastern Suburbs. This is in circumstances where the child is currently being educated in the specialist private school system near the child’s current residence which is in the Northern Suburbs of Sydney.
Associated with the mother’s initial Application in a Case and Amended Application, was an application to increase the amount of time that the child was to spend with her. That application was expressed in the alternative depending upon whether the mother was successful in her application for the restraint. The mother continues to press for an increase in the amount of time that the child spends with her, in her Further Amended Application in a Case filed on 22 June 2021, but only to the extent of the child spending overnight time with her each Tuesday from the conclusion of school until the commencement of school the following morning. That is in lieu of the current arrangement whereby the child spends several hours with the mother of a Tuesday evening in addition to the time that the child spends with the mother every second weekend.
The Applications have been made in circumstances where the father has recently indicated his intention to relocate his place of residence from the Northern Suburbs to the Eastern Suburbs and, consequently, change the child’s school to the Eastern Suburbs.
Unfortunately, the dispute between the parties occurs in circumstances where they had been making considerable progress in respect to arriving at appropriate parenting arrangements and, in that context, had entered into consent orders which have progressively increased the amount of time that the child spends with the mother.
Despite my concerns regarding what I have found to be discourtesy on the part of the father in failing to advise the mother of his intention to change the child’s school, the Court is, nonetheless, directed by statute to make such orders as it considers to be in the best interests of the child. In other words, while the conduct of the parents is unquestionably a relevant consideration particularly where it relates to the issue of acting in an appropriately child focussed and responsible manner, the Court does not make parenting orders with a view to penalising or chastising a parent for inappropriate conduct. The focus of proceedings remains on the best interests of the child.
As result of the mother being granted leave to rely upon her Further Amended Application in a Case filed on 22 June 2021 the issues in the proceedings are, therefore:
(a)Should the amount of time that the child spends with the mother increase to overnight time each Tuesday.
(b)Should orders be made requiring the father to take all necessary steps for the child to be enrolled in the specialist private school system in the Eastern Suburbs, and, if not, what school the child should attend.
(c)If orders are made requiring the father to take such steps to enrol the child in the private system or such other school, what should be the commencement date for the child to change schools.
In that context, in this matter the father has been, since 2016, the primary carer of this young child and the evidence presented does not, for reasons which I set out, satisfy me that it is appropriate to change the amount of time that the child spends with the mother, in the context of these interim proceedings.
Accordingly it will remain the case that the child will continue to spend the majority of nights each week in her father’s care.
In those circumstances delaying the child’s enrolment in a new school in the Eastern Suburbs would result in the situation where, for potentially one term, if the mother’s primary application for the child to commence in the P School School, located in the Eastern Suburbs, in Term 4 was successful, the child would be destined on most days of the week to spend at least two hours and possibly as much as three and a half hours per day travelling between her father’s home in the Eastern Suburbs and her school which is located in the Northern Suburbs. I accept that this would only be for the period of Term 3. Nevertheless, I have determined that this would not be in the child’s best interests. Accordingly, I have rejected that part of the mother’s application that would have the child changing schools at the commencement of Term 4.
In respect to the issue as to whether the father should be directed to take all necessary steps to have a child enrolled in the specialist private school system in the Eastern Suburbs, the evidence, in these interim proceedings is not such that I am in a position to make a factual determination as to whether the child would or would not benefit from remaining in the specialist private school system as opposed to being enrolled in the public school system for reasons which I explain in a greater detail. On that basis I have made orders that the child be enrolled in a school that the evidence satisfies me is proximate to where the child will live with the father in the suburb of Suburb J in Sydney, being the Suburb J Public School.
LEAVE TO REOPEN
As noted, on 22 June 2021, the mother filed a Further Amended Application in a Case seeking leave to re-open these proceedings in the period subsequent to them being heard on 15 June 2021.
In reaching my decision to reopen the proceedings and grant leave to the mother to file additional evidentiary material and, consequently responding material by the father, I had regard to the helpful written submissions by senior counsel for the father and the mother.
The relevant principles to apply in considering whether to reopen proceedings were conveniently summarised by Berman J in Miller & Cooper [2015] FamCA 997 (‘Miller & Cooper’) at [54]–[57];
54.Notwithstanding the consent of all parties, the granting of leave to re-open is discretionary. The exercise of that discretion is to be considered by having regard to the interests of justice. As was held by Murphy J in Summitt & Summitt & Ors (Re-Opening) (2009) FamCA 365 his Honour considered:
The essential question is, is the court more able to do justice in the facts and circumstances of a particular case if the application is granted . (see e.g Smith v NSW Bar Association (1992) 176 CLR 256: Urban Transport Authority v Nseiser (1992) 28 NSW LR 471 at [478] and EB v CT (No 2) [2008] QSC 306).
55.In EB v CT (No 2) [2008] QSC 306 Applegarth J summarised the relevant common law principles:
[2] The guiding principle in deciding whether to grant leave to reopen is whether or not the interests of justice are better served by allowing or rejecting the application. Reference is made in Finborough Investments Pty Ltd v Airlie Beach Pty Ltd and in the cases referred to in it to the need for finality of litigation.
[3] In Smith v New South Wales Bar Association, the High Court stated that different considerations may apply depending upon whether the case is simply one in which the hearing is complete, or one in which reasons for judgment had been delivered. As to the former situation, the Court said it was difficult to see why the primary consideration should not be that of embarrassment or prejudice to the other side.
[4] In Reid v Brett, the criteria governing the exercise of the discretionary power to reopen a case to admit further evidence where the hearing has concluded but judgment has not been delivered was said to be as follows:
(a) the further evidence is so material that the evidence of justice requires its admission;
(b) further evidence if accepted would most probably affect the results of the case;
(c) the further evidence could not by reasonable diligence been discovered earlier; and
(d) no prejudice would ensue to the other party by reason of the late admission of the further evidence.
56. Importantly, at paragraph 5 his Honour said:
Reference by the High Court to prejudice to the other party and the guiding principle of the interests of justice, require account to be taken of the strain that litigation imposes on personal litigants. The prejudice caused by the delay in the delivery of an unacceptable judgment at the end of a stressful litigation cannot always be measured in terms of money or cured by an order for costs. The interests of justice is served by finality in litigation, particularly where prolonged litigation imposed a strain on personal litigants.
57. Obviously this is a more acute consideration in a parenting case.
In exercising my discretion I acknowledge that there was little if any additional material presented by the mother in respect to the proceedings on 24 June 2021 that was not reasonably available to her at an earlier time.
Nevertheless, significantly, the wife substantially modified her position from that which she had advanced in respect to the proceedings which were heard on 15 June 2021 and I have outlined the manner in which the mother changed her position in that respect. The fact that the mother significantly modified her position – indeed, it can be said moderated her position – in respect to the orders she was seeking is a relevant consideration. I respectfully agree with senior counsel for the mother that, further to those principles to which I have referred in the decision of Miller & Cooper in respect to the reopening of evidence, are those principles for the conduct of child-related proceedings set out in s 69ZN of the Act.
Specifically, while the Court discourages repeated applications in parenting matters, particularly in circumstances where judgment was yet to be delivered, there are circumstances where the mother has significantly moderated the relief she was seeking, and in those circumstances, I determine that it is in the best interests of the child for the Court to determine the current dispute on the basis of the current contentions by the parties as opposed to the historical context, albeit, in the case of the mother, with that historical context being only a little over seven days old. On that basis, I granted leave to the mother to reopen the issues which were the subject of my reserved judgment heard on 15 June 2021.
BACKGROUND
The father was born in Europe in 1978. The mother was born in 1977. The mother and the father are the separated parents of X who is eight years old having been born in 2013. The child lives with the father and has done so since her parents separated.
The parties commenced cohabitation in approximately 2005 and were married in mid-2010.
From the time of the parties’ separation on 22 April 2016 until September 2019, the father was the sole carer of the child. It is acknowledged that during that period the child had no contact with the mother who was engaged in extensive travelling.
It is also acknowledged by the parties that at the time, the mother confronted significant mental health challenges. The extent to which the mother’s mental health issues have resolved is an issue in these proceedings. However, to the parties’ credit they have acknowledged that the mother is committed to an ongoing program of treatment and, on that basis, the parties have reached agreement for the child to spend an increasing amount of time with the mother including, more recently, unsupervised time.
At the time of the parties’ separation they lived with the child in Suburb K however, in June 2017, the father moved with the child to Suburb L. The child has lived in Suburb L since that time.
On 5 December 2019, Senior Registrar Campbell, as his Honour then was, made orders for the child to spend time with the mother on alternate Sundays from 10 am until 4 pm and each Tuesday from 3.30 pm until 6.30 pm. That time was to be supervised by either or both of the maternal grandparents, a professional supervisor or as otherwise agreed in writing by the parties.
On 20 April 2020, Rees J made orders varying those orders in the context of the impact of the COVID-19 pandemic. While extensive, relevantly for the purpose of these proceedings, those orders provided inter alia for the child to live with the father and spend the following time with the mother, in addition to special days:
·Each Sunday between 10.00am and 6.00pm.
·Each Tuesday during the school term from 3.30pm to 6.30pm.
·One weekend in each calendar month, in the presence of a supervisor, from 10am on Saturday until 6pm on Sunday.
Order (4) of the orders provided for the child’s time with the mother to be “supervised by one of the maternal grandparents; [the mother’s brother] or a supervisor from the F Centre.”
The order for supervision was made in the context where it is acknowledged that the mother has had a history of experiencing challenges with her mental health and while the mother’s mental health has substantially stabilised, there remains concerns about a potential relapse.
On 24 November 2020, Senior Registrar Campbell made the following orders by consent:
PENDING FURTHER ORDER IT IS ORDERED THAT
1.The child [X], (‘the child’) born … 2013, shall live with the father.
2.The child shall spend time with the mother each Tuesday during school terms, from after school until 6:30pm.
3.For the purposes of order 2, the mother shall collect the child from school at the commencement of the time, and at the conclusion of the time the mother shall deliver the child to the father at his home, or at some other reasonably proximate location if agreed.
4.In addition to time with the mother pursuant to order 2, the child shall spend time with the mother and as follows:
a)From after school on Friday 4 December 2020 until 6pm on Sunday 6 December 2020 in the presence of [the mother’s father], [the mother’s mother], [the mother’s brother] or [the mother’s partner];
b) On Sunday 13 December, from 10am until 6pm;
c)From 9am on Friday 18 December 2020 until Thursday 24 December 2020, in the presence of [the mother’s father], [the mother’s mother], [the mother’s brother] or [the mother’s partner];
d)From 10am on Saturday 2 January 2021 until 6pm on Friday 8 January 2021, in the presence of [the mother’s father], [the mother’s mother], [the mother’s brother] or [the mother’s partner];
e)From 9am on Tuesday 19 January 2021 until 6pm on Monday 26 January 2021, in the presence of [the mother’s father], [the mother’s mother], [the mother’s brother] or [the mother’s partner];
5.For the purposes of Orders 4(a), (c), (d) and (e) herein in relation to the mother travelling from the collection of the child to be in the presence of one of the nominated persons, the nominated person need not be present.
6.For the purposes of order 4, the father shall deliver the child to the maternal grandparents’ residence at [Suburb C] for the commencement of the time, and at the conclusion of the time the mother shall return the child to the father at his home, or at some other reasonably proximate location if agreed.
7.During the school term one (1) and two (2) in 2021, in addition to the time in order 2, the child shall spend time with the mother in alternate weeks, from the conclusion of school on Friday until 6pm on Sunday.
8.During the 3rd and 4th school terms in 2021, the child shall spend time with the mother from the conclusion of school on Friday until the commencement of school on Monday.
9.During the holidays at the end of the 1st, 2nd, and 3rd terms in 2021, The child shall spend time with the mother for five (5) nights from 10am on the first Monday of the holidays until 5pm on the following Saturday.
10.During the December 2021-January 2022 school holidays, the child shall spend time with the mother for three block periods of seven nights, those nights being the 1st, 3rd and 5th weeks of the holiday period, unless the parents otherwise agree.
11.Notwithstanding the above orders, the child shall spend time with the mother on the child’s birthday, the mother’s birthday, [religious festivals] as agreed between the parents in writing.
12.The child shall have FaceTime with the mother from 6pm until 6:30pm on any Thursday when she is not otherwise with the mother.
13.The mother shall ensure that the child is able to have FaceTime calls with the father during not less than every 3rd day when the child is with the mother from the commencement of overnight time that is not in the presence of other persons.
14.A parent shall not interfere with the child’s FaceTime communication with the other parent or permit any other person to do so.
15.Each parent shall ensure that the child is able to telephone the other parent at any reasonable time.
16.Neither parent shall discuss these proceedings with the child, or permit any other person to do so.
17.Unless otherwise specified in these orders for particular days, or as agreed between the parents, the mother shall collect the child from school or the father’s residence, and the father shall collect the child from the mother at the conclusion of the time.
18.For not less than 12 months from the date of these orders the mother shall attend upon [Dr M] each month, or otherwise as recommended by him.
19.The mother shall forthwith in writing authorise [Dr M] to contact the father in the event of any deterioration in the mother’s mental health and to provide reports to [the mother’s mother], [the mother’s father] and [the mother’s brother] with respect to the mother’s mental health.
20.The Independent Children’s Lawyer shall provide a copy of the court’s orders to the [N School] and [Dr M].
21.Both parents shall attend a parenting after separation course, and advise the other parent and the Independent Children’s Lawyer when they have done so.
22.That Order 7 of the Orders made on 20 April 2020 Her Honour Justice Rees be varied to read “That the father and [Ms O] shall be present at all times that [G] is in the same place as the child and immediately notify the mother in writing if he observes any behaviours or conduct that appears to be inappropriate or distressing to the child”.
23.That within three business days of the date of Order, the parties do all acts and things necessary, including signing all documents, to release to the Wife the sum of $60,224.47 from the Freed and Golding Solicitors Trust Account by way of lump sum spousal maintenance or interim or partial property settlement.
Those orders were further varied by orders made, by consent, on 27 May 2021 (“the consent orders”). Relevantly those consent orders provided for Order (22) of the orders made on 24 November 2020 to be discharged and that otherwise, the orders made on 24 November 2020 remain in force save to the extent that an additional order (Order (3)) was included which required the parents be notified if any other person witnessed “any behaviour as between [the child] and any other children or child in their care which appears to be unusual or potentially harmful to [the child]”.
The consent orders also provided for the child to spend time with the mother on Mother’s Day and the mother’s birthday, the father on Father’s Day and the father’s birthday, as well as orders providing for how the child is to spend time with the parents on Christmas Day and Boxing Day as well as other religious holidays and public holidays. The orders further provided for the child to have telephone communication with the other parent when they were in one parent’s care. Most relevantly, however, the consent orders expanded the amount of time that the child could spend with the mother during school holidays as set out in paragraphs 8, 9 and 10 of the Minute of Consent attached to the consent orders as follows:
8.During each short school holiday period the child shall live with the Father and the Mother as agreed between the parties. In the event the parents cannot agree upon a formulation within 14 days of the commencement of any particular holiday period, then the child shall live with the Mother for the first half of such period and with the Father second half.
9.During the December /January school holidays, the child shall spend time with the mother for three (3) block periods of seven (7) nights, those nights being the 1st, 3rd and 5th weeks of the holiday period, unless otherwise agreed between the parties, in writing.
10.For the purpose of the school holiday periods, the following shall apply:
a.Commencement of the school holidays is deemed to be 3 pm on the last student attendance day of term:
b.Conclusion of school holidays is deemed to be 6.30 pm on the day prior to student attendance in the new term; and
c.Terms and student attendance days will be as determined by the Child's school.
(As per the original)
Until May 2021, the mother resided in Suburb R however, on 1 May 2021 the mother moved into a rental property in Suburb L. The lease on the property is until the end of August 2021. The mother has, however attested, in paragraph 11 of her Affidavit filed on 22 June 2021 that she is able to extend that lease to the end of September 2021. On 20 May 2021, the father signed a contract to commence new employment on 1 July 2021. On 21 May 2021, the father signed a lease on a rental property in the Eastern Suburbs. In his affidavit filed on 14 June 2021, he attests to doing so in order to be closer to his place of employment and also to be closer to where his current partner lives with her children. In that respect the father attests that he will be required to work in the Sydney Central Business District and to visit clients who are primarily located in the Eastern Suburbs.
On 7 June 2021, the father’s solicitor advised the mother’s solicitor, that as a result of the father moving to the Eastern Suburbs he had decided to change the child’s school. The terms of that communication and the significance of it will be set out later on.
APPLICATIONS
Orders sought by the mother
The mother originally sought orders be made in accordance with her Amended Application in a Case filed on 15 June 2021.
l. That leave be granted for short service of this application.
2.That pursuant to section 114 of the Family Act 1975 (Cth) ,
the fatherthat both parties be restrained from removing the child, [X], born … 2013 from N School until further agreement or order.3.ln the event the father does not relocate to [
Suburb J]further then 15 km from the child's school, in the state of new South Wales, that the child shall live with the father and spend time with the mother as follows:Week 1
3.1Each Tuesday, from the conclusion of school until the commencement of school on Wednesday morning and each alternate week thereafter;
Week 2
3.2From the conclusion of school on Friday until 6.30pm on Tuesday and each alternate weekend thereafter;
3.3For the purpose of the child's time with the Mother in accordance with Orders 8, 9 and 10 made on 27 May 2021, if the child spent time with the mother on the last weekend of school holidays, then the child's weekend time with the mother shall commence on the 2nd weekend of the new school tem1 and each alternate weekend thereafter, unless agreed otherwise.
Commencing on l3 July for Term 3
and 6 October for Term 4:Week 1
3.4Each Tuesday from the conclusion of school until the commencement of school on the Wednesday morning following thereafter;
Week 2
3.5From the conclusion of school on Friday until 6.30pm on the following Wednesday, and each alternate week thereafter; and
3.6Such other times as the parties may agree in writing, from time to time.
3.7For the purpose of the child's time with the Mother in accordance with orders 8, 9 and 10 made on 27 May 2021, if the child spent time with the mother on the last weekend of school holidays, then the child's weekend time with the mother shall commence on the 2nd weekend of the new school term and each alternate weekend thereafter, unless agreed otherwise.
4.In the alternative to Order 3 above, in the event the father relocates
away from the Northern Suburbs areafurther then 15 km from the child's school in the state of New South Wales, that the child live with the mother at [Y Street, Suburb L] or at such other address at which the mother may reside in the Northern Suburbs area in the state of New South Wales, and spend time with the father as follows:4.1.From after school
on Fridayeach Thursday until before school on Monday every first, second, and fourthand fifthweek(as occurs from time to time)of each month.4.2.At any times as agreed by the parties.
5.If either party cannot spend time or live with the child while in she is living with or spending time with the child , then the parent with whom the child is not spending time or living with the child, will have the first right to spend time with the child.
6.Costs of this application.
7. Such further or alternative relief as this Honourable Court deems fit.
(As per the original)
By her Further Amended Application in a Case filed on 22 June 2021, the mother sought amended orders as follows:
1. That the Mother be granted leave to reopen the issues subject to the reserve judgment heard on 15 June 2021 and to rely on the following relief in lieu of the relief sought by the Mother at the hearing of the amended application in a case heard on 15 June 2021:
1.1. That immediately on the making of these Orders, that the parties sign all documents, attend all interviews and do all things necessary to ensure that the child [X], born … 2013 (“the child”) is enrolled in [P School Suburb R] (“the school”) situated at [Q Street, Suburb R] in the state of New South Wales to commence in either Term 3 or Term 4 of 2021, on condition that the Mother pay the tuition fees for the child’s attendance at the school until the determination of any final parenting hearing.
1.2. That in the event that the parties can obtain the enrolment that:
1.2.1. That the parenting relief sought by the Mother on 15 June 2021 be varied so that the child remain at [N School] until the conclusion of term 3 of 2021 and thereafter from the commencement of term 4 of 2021, the child attend P School.
1.2.2. That in the alternative to Order 1.2.1 that the child commences at [P School] the commencement of term 3 of 2021 should her enrolment be accepted.
2. That the Mother be granted leave to rely on the evidence of her affidavit filed contemporaneously with this application in the case.
3. Order 2 of the Orders made on 24 November 2020 be varied so that the child spend time with the mother each Tuesday, from the conclusion of school, until the commencement of school on Wednesday morning and each week thereafter.
4. Costs of the application.
5. Such further and alternative relief which this Honourable Court may deem fit.
(As per the original)
The effect of the mothers further amended application is that the father would be unrestrained in changing the child’s school to the Eastern Suburbs save to the extent that the father would be required to take all reasonable steps for the child be enrolled in the P School at Suburb R. The mother further seeks an order that the child’s time with the mother be extended to overnight time each Tuesday in circumstances where currently she spends several hours with the child on Tuesday evenings.
Orders sought by the father
By his Response to the Application in a Case filed on 15 June 2021, the father sought orders including orders pursuant to Part VIII of the Family Law Act 1975 (Cth) (‘the Act’). Those orders were, however, not pressed in these proceedings. The orders sought by the father in respect to parenting were as follows;
1. That Order 8 made 24 November 2020 be varied to insert the words ‘each alternate weekend’ prior to ‘from the conclusion of school Friday’.
2. That the parties sign all documents and do all things necessary to ensure that the child is enrolled in [Suburb J] Public School to commence Term 3 2021.
The father’s proposed first order was resolved by the parties reaching agreement in respect to a consent order that was made on 22 June 2021 which was in terms similar to that proposed by the father in his proposed order one.
Orders sought by the Independent Children’s Lawyer
The Independent Children’s Lawyer also opposes the orders sought by the mother and in the proceedings on 24 June 2021 supported the father’s application that the child be enrolled in the Suburb J Public School.
EVIDENCE
The mother relies upon the following documents:
(a)Further Amended Application in a Case filed 22 June 2021
(b)Affidavit of the mother filed 10 June 2021
(c)Affidavit of the mother filed 15 June 2021
(d)Affidavit of the mother filed 22 June 2021
(e)Case Outline Document filed 15 June 2021
(f)Case Outline Document provided 24 June 2021
(g)Family Report by the Single Expert, Dr S dated 4 June 2020
(h)Affidavit annexing updated single Expert Report of Dr H filed 13 November 2020
(i)Affidavit of the mother’s treating psychiatrist, Dr M filed 12 November 2020
(j)Affidavit of [the mother’s father] filed 24 November 2020
(k)Material from tender bundle (marked ‘Exhibit A’)
(l)Material from tender bundle (marked ‘Exhibit 1’); and
(m)N School Enrolment Placement Policy 2021 (marked ‘Exhibit 2’).
The father relies upon the following documents:
(a)Response to Application in a Case filed 15 June 2021
(b)Affidavit of the father filed 14 June 2021
(c)Affidavit of the father filed 23 June 2021
(d)Family Report by the Single Expert, Dr S dated 4 June 2020
(e)Father’s Case Outline Document provided 15 June 2021; and
(f)Father’s Case Outline Document provided 24 June 2021.
THE LAW – CONCEPTS AND PRINCIPLES
Presumption of equal shared parental responsibility
In terms of the relevant law, concepts, and principles in parenting cases, the presumption of equal shared parental responsibility is set out in s 61DA of the Act. Section 61DA of the Act relevantly provides:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
…
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
In these interim proceedings, it is not possible to make findings of fact in respect to the contentions of the parties, including allegations made by the mother that the father has engaged in conduct that would constitute family violence as defined in s 4AB of the Act and, conversely, allegations made by the father that the mother has irrationally formed a fixed view about the father which prevents her from engaging with him in a child-focussed manner. In those circumstances, it is not appropriate for the presumption of equal shared parental responsibility to apply at this stage of the proceedings.
Accordingly, the pathway set out in s 65DAA of the Act for the determination as to whether the children should spend equal or substantial and significant time with a parent does not apply. The Court is, therefore, at large in making orders that it considers to be in the best interests of the child in the context of the issues raised in these interim proceedings.
Best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a parenting order, the Court “must regard the best interests of the child as the paramount consideration”. This obligation is also reinforced in s 65AA.
Section 60CC sets out the list of matters that the Court must have regard to in determining what is in the child’s best interests. The Act sets out a number of considerations to assist the Court in determining what orders are in the best interests of the child.
The decision of the Full Court in Goode and Goode (2006) FLC 93-286 (“Goode”) sets out the approach which should be taken in considering an application for interim parenting orders. Relevantly, under the subheading “How should interim proceedings be conducted?”, the Full Court determined the approach as follows:
81.In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82. 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)”
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
In circumstances where I have determined it is not appropriate to apply the presumption of equal shared parental responsibility in this case, the Court does not consider the legislative pathway beyond paragraph (e), as set out above in Goode. As I have already dealt with the issue of presumption of equal shared parental responsibility, I will set out my reasoning in this matter having regard to paragraphs (a) through to (d) of the decision in Goode as follows.
Competing proposals of the parties and uncontested facts
I have earlier identified the competing proposals of the parties and, earlier in this judgment I have identified those facts which are agreed or uncontested.
Issues in dispute
The issues in dispute in this matter are:
(a)should the father be required to take all reasonable steps to have the child enrolled in the P School at Suburb R;
(b)if so should the child commence at that school in Term 3 or Term 4; and
(c)should the amount of time that the child spends with the mother be increased such that the child spends overnight time with the mother every Tuesday rather than a period of several hours as she currently does.
Best interest considerations (s 60CC)
As noted, it is the responsibility of the Court to regard the best interests of the child as a paramount consideration even in interim parenting matters (s 60CA). It must do this in circumstances where the evidence of witnesses has not been tested through the process of cross examination and where there is limited expert evidence before the Court.
In Goode, the Full Court observed that a trial judge has a limited ability to resolve controversial factual issues in interim proceedings. In that respect, in Iphostrou & Iphostrou and Ors [2011] FamCA 20 at [44], Cronin J said:
In any situation of an interlocutory nature where the facts are controversial and in dispute, a court cannot make findings of fact. Findings of fact form the basis upon which orders are made within jurisdiction. …
Further, in Banks & Banks (2015) FLC 93-637 at 80,116, the Full Court outlined a practical approach to applying the considerations set out in s 60CC of the Act, in interim proceedings. In paragraphs [48] though to [50] of that decision the full Court said;
48.It should also be said that in parenting proceedings as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim proceedings should be confined to those issues which, in the best interests of the children, require determination prior to a proper determination at trial…
49.… there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
50.When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
(Emphasis added)
Within the constraints identified in Goode, I will address the s 60CC considerations by focussing firstly on those matters set out in s 60CC(3) of the Act before addressing those matters set out in s 60CC(2).
Issues relating to the children – their views, level of maturity, culture and relationships (s 60CC(3)):
Sub-section (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;
Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; and
Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
At page 40 of the Family Report, Dr S, the single expert report writer, recorded that his assessment and the materials which he read “are consistent with [the child] having a strong and quite secure relationship with her father which is also her primary attachment. She also appears to have quite a strong relationship with his partner Ms O”.
At page 41 of the Family Report Dr S, recorded that he was unable to encourage the child to express her views in respect to her relationship with her mother however, Dr S reported from his observation that he “[h]owever I formed the view … that her relationship with her mother is valued and important, and that were she to be able to provide views, an important element of them would be that she wishes her relationship with her mother to resume.”
At page 47 of the Family Report, Dr S conveniently summarises his assessment as follows:
…it is clear that the father has been the child's primary parenting attachment since she was a toddler, and it is to him that she holds her primary and by far her strongest attachment at this juncture. Even though she has enthusiastically embraced the return of her mother into her life[.]
Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
Sub-section (3)(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;
Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and
Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents.
It is not possible, at this interim stage, to make a comprehensive assessment of all of these considerations under the Act. However, central to my consideration of this matter are the cautions Dr S expressed in respect to the mother’s parenting capacity, in the context where it is acknowledged that the mother has, in the past, experienced mental health challenges.
Dr S’s assessment of each of the parties’ respective parenting capacities is summarised on pages 42 and 43 of the Family Report as follows:
The child seems to be quite a robust, adaptable, happy child under the circumstances, and there is intermittent corroboration of this in the first four years of her life, in the latter stages of which she was almost entirely in her father's care, either on a day to day basis or in a more protective role. I also note that I felt [the father] exercised good judgment in engaging the child in therapy with [Mr T] in 2019, and in continuing with this therapy despite further allegations of him either abusing or supporting abuse of the child earlier this year. Moreover, the child's school and medical records describe his parenting in positive terms. In my view it is reasonable to conclude that he has demonstrated committed parenting competence. Apart from [Ms U’s] allegations and [the mother’s] beliefs, there is no contrary view.
I have noted that [the mother] has had no involvement in day to day parenting since April 2016 and that her parenting from at least when the child was 18 months of age, if not significantly earlier, was very problematic in terms of unpredictable unavailability, distraction from the tasks of parenting, inconsistency, and severe emotional instability.
One aspect of her anxiety was that she was a less than capable parent. The failures that she indicated in herself suggest that she does have a good understanding of what parents should do, and I think it is reasonable to conclude that her ideas on parenting are appropriate and quite comprehensive.
An important issue for her is going to be whether she has the confidence to put these parenting beliefs into practice and not be distracted by a high degree of anxiety or in particular, by abnormal beliefs. I am of the view that provided she does not suffer from a mental illness which is driving a lack of confidence in this area, her parenting skills will come to the fore in an appropriate way. However I do not think that she is at that point yet, and I note the [F Centre] reports which seem to indicate that understandably, she seems a bit eager to please the child at the moment. Yet I feel reasonably confident that once she is on her own more with her daughter, at least some of this will dissolve and if some still remains, it will be of a degree which can be remedied by sound parenting advice from family or a professional.
(Emphasis added)
At page 47 of the Family Report Dr S states:
…it is clear that the father has been the child's primary parenting attachment since she was a toddler, and it is to him that she holds her primary and by far her strongest attachment at this juncture. Even though she has enthusiastically embraced the return of her mother into her life, I have noted above that I have some concerns about the mother's parenting capacity. Were the child to be placed with her mother, I am of the view firstly that the child would be very distressed about spending far less time with her father, and secondly that the mother does not yet have the parenting skills to manage the child's distressed reaction optimally. …
(Emphasis added)
Issues of family violence:
Sub-section (3)(j) – any family violence involving a child or a member of the child’s family; and
Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.
The mother contends that, in the period prior to her separating from the father in 2016, she had been subject to family violence perpetrated by the father.
In his report, Dr S extracts from the content of medical records that he has read in respect to the history of the mother’s mental health challenges. Having done so, at page 48 of his report Dr S summarises his opinion in respect to these matters as follows:
The mother alleges that she was subjected to physical, emotional and financial abuse by her husband. However I also note that despite having given a social history to mental health professionals in the absence of her husband on numerous occasions over a nearly three year period of mental health care, at no point did she raise these issues. She certainly referred to strains in her relationship with her husband, however on the few occasions where the meaning of this was clarified it appeared that the strain in the relationship amounted to her perception that she was a burden on him because of her anxiety, her inability to care for the child consistently etc. Moreover, there is no evidence from the records that he abandoned her to psychiatric care. The records appear to indicate the opposite - they are consistent with him being supportive, to the point of placing a higher priority on caring for her than on work etc., although he was also stressed by having to balance this with the child's needs. …
Clearly, these issues will be the subject of further enquiry at the substantive hearing of this matter, and that it is not possible to make a determination, in these interim proceedings, in respect to the veracity of the mother’s allegations that the father has engaged in acts that constitute family violence.
Effect of change:
Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
This consideration is relevant in the context of these proceedings.
On the one hand, there is with respect, considerable substance in the mother’s concern that the father’s proposal to move to the child from the specialist private school system to the public education system would represent a significant change for her. In that respect I have had regard to Items 10 and 11 of the mother’s tender bundle which was Exhibit 1 provided on 24 June 2021. I have also had regard to the four items identified as “number 20” in the mother’s tender bundle provided on 15 June 2020 which was marked Exhibit A in those proceedings.
I further accept that a change would occur in the context where, as submitted by counsel for the mother on 15 June 2020, the child by moving from the Northern Suburbs to the Eastern Suburbs, would result in her losing contact with extra-curricular activities that she is currently engaged in, in the Northern Suburbs, which are gymnastics on Wednesday and swimming on Thursday. It would also be necessary for the child to change psychologists from the psychologist she has presently been attending on a Friday afternoon.
The mother further relies upon a letter from N School, identified as Item 26 of the tender bundle marked ‘Exhibit A’ in the proceedings on 15 June 2021, expressing caution about parents changing a child’s school at a point which is midway through the school year, as follows:
Re: Mid year change of school
To whom it may concern,
We are aware that at varying times it might be necessary to withdraw your child from the primary program prior to the end of a 3 year cycle - either at the end of Cycle 2/(Year 3) or at the end of Cycle 3 (Year 6).
The school, though sad to see your child's education interrupted, is always keen to assist you in finding an alternative specialist private school in a new location or indeed support the child should an alternative education approach be selected.
That having been said, we do ask that parents, particularly when moving their child to an alternative approach, to strongly consider the 'move' be made at the commencement of the school year. The rationale for this is multi faceted and has the child's best interest as the key determinant.
Typically (non [specialist private]) schools work on an academic year with introductory/foundation work being provided to the students in the first 2 terms with further study then based on this foundation.
As the year continues the teacher becomes very familiar with the needs of each child and quite potentially has created groupings taking this into account. Coming from an environment where a child is in a multi aged class with a diversity of learning skills placement in a particular group may be challenging.
From a social perspective the new year cohort is explored in the first few weeks with friendships well formed and potentially posing a challenge for a new child.
Typically if a child is moved mid year they will, more than likely, have experienced a relocation or change to their normal routine and be quite vulnerable making the transition potentially quite stressful.
Obviously this is written as an advocate for the child and there may be circumstances when this move is unavoidable. We would obviously support the child should this be the case.
Please do not hesitate to contact me should you wish to discuss this further.
…
(Emphasis added)
Senior counsel for the father contended that the Court should give little weight to what appears to be a generic letter rather than one that, on its face, is not specific to the circumstances of the child in this matter. Nevertheless I accept, as a matter of common sense, that it would be stressful for an 8-year-old child to not only move schools but also to move from one school system being the private system to the public education system.
On the other hand, I have noted above that Dr S described the child as seeming to be “quite a robust, adaptable, happy child under the circumstances.”
I further note that the father, who has been the child’s primary carer since 2016, attests in his Affidavit filed on 23 June 2021 that he has obtained confirmation from the child’s treating psychologist that he would continue to provide support during the period of transition from the specialist private school system to the public education system. The terms of that commitment are set out in an email from the child’s treating psychologist to the husband dated 23 June 2021 which is exhibited and marked ‘A’ to the husband’s Affidavit of 23 June 2021 and which reads as follows:
Hi [Mr Medvitz], in relation to your request for confirmation of my ongoing involvement I agree to continue to provide ongoing support and or advice regarding the proposed transition for the child from [N school] at [Suburb L] to [Suburb J Public School]. The child is an adaptable and resilient young lady who, over the past few years, has demonstrated she can adjust and cope with changing circumstances with the available support. The public school system has a broad range of support structures and ancillary staff who can address any potential social, emotional, academic, or adjustment issues. The child has good peer relationship skills and I believe she would be more than capable of fostering new friendships within a new school environment. …
While, for the reasons which I have set out, I am unable to make findings of fact in these interim proceedings, common sense suggests that it will be a stressful time for the child in changing schools and that the level of stress would be reduced if she were to change to a school that adopted practices and procedures and teaching methods that were similar to those which apply at her current school. On the other hand, the evidence presented by the mother in the context of the opinion expressed by the child’s treating psychologist has not satisfied me that the child will be unable to cope with that change in circumstances where she will have the appropriate support available to her and in circumstances where both the child’s treating psychologist and Dr S expressed the opinion that the child is a reasonably robust child.
Practical difficulty of implementation:
Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
This is also a significant consideration in this matter. Relevantly, if orders are made requiring the father to defer the child’s enrolment in a school in the Eastern Suburbs until the fourth term of 2021, it will be necessary for both himself and the child to engage in considerable travelling on almost all days the child lives with the father, and possibly for handovers with the mother as well. This would be between the father’s new home which will be located in the Eastern Suburbs and the child’s school located in the Northern Suburbs. In that respect, it appeared to be conceded that the travelling time could be between one hour and one and three-quarter hours each journey. In other words, potentially, the total travelling time for the child could be between two hours and three and a half hours per day. In addition, the father would be required to effectively double the amount of travelling time that he would be required to undertake as result of the fact that he would be travelling to the Northern Suburbs to collect the child from school at the end of the day, and similarly, he would be returning from the Northern Suburbs after dropping the child off at her school in the mornings.
In setting out the practical difficulties in respect to the father travelling with the child, I acknowledge that there are also practical difficulties for the mother and it is on that basis that the mother seeks a variation in the amount of time that the child spends with her such that the child spends overnight time with her of a Tuesday evening rather than simply for a few hours.
Comparatively, however, both the father and the Independent Children’s Lawyer contended that the situation which would confront the mother, at least until September 2021, the date up to which she will continue to live in the Northern Suburbs, is precisely that which existed at the time Senior Registrar Campbell made the parenting orders, to which I have referred, in November 2020. That is, at that time, the mother was living in the Eastern Suburbs and the orders were made in the context where it was anticipated that, of a Tuesday evening, the mother would travel from the Eastern Suburbs to collect the child from school and spend a few hours with her before dropping her back to her residence in the Northern Suburbs that evening. It was contended that, that precise situation will occur, if the father now moves to the Eastern Suburbs and the mother remains living in the Northern Suburbs.
Accordingly, the issue of practical difficulty has not persuaded me that there is justification for changing the current parenting orders such that the mother would have overnight time with the child of a Tuesday evening. Indeed, such an order would actually, in my view, present an additional burden for the child who would spend time travelling from her school back to the mother’s home in the Northern Suburbs to spend the evening with the mother, before travelling back from the Northern Suburbs to her school in the Eastern Suburbs on the following day.
While a relatively minor consideration in the context of the issue of risk which I will expand upon below, it is nonetheless a relevant consideration that I have had regard to in determining not to make an order to increase the amount of time at this stage that the child spends with the mother.
Avoiding further proceedings:
Sub-section (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.
These are interim proceedings and while the parties have, prior to the events that gave rise to these proceedings, previously engaged in constructive discussions it appears those discussions have broken down and that this case will inevitably proceed to a final hearing.
During the course of this hearing on 15 June 2021, the Court expressed concern regarding the poor communication between the parties and their respective legal advisers. It is respectfully suggested that the issues which are the subject of these proceedings which have now involved two hearing dates could have been avoided had the parties focussed upon engaging in constructive dialogue regarding, firstly, the father’s proposal to move and when a convenient time for that to occur would be, as well as metaphorically, sitting down to discuss the positives and negatives of each educational option for the child.
Instead, the parties are now seeking for that determination to be made in respect to the child school by an officer of the state namely myself as a Commonwealth judicial officer. This is in circumstances where, as I have set out, the Court has a limited ability to properly evaluate the evidence submitted by the parties.
Other relevant matters:
Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
A relevant matter that I have taken into consideration in these proceedings is that the dispute between the parties arose as a result of the father’s notification, through his lawyers, of his unilateral decision to change the child’s school.
In that respect it is noted that it does not appear that any of the orders made to date, in respect to the child, include an order for parental responsibility. In those circumstances, s 61C of the Act provides that “[e]ach of the parents of a child who is not 18 has parental responsibility for the child.” Section 65DAE of the Act provides that the parents are not required to consult with each other in respect to issues which are “not major long-term issues” and, by inference that they are required to consult in respect to “major long-term issues.” Section 4(1) of the Act provides the definition of “major long-term issues” includes, at paragraph (a), “the child’s education”.
On 7 June 2021, the father’s solicitor wrote to the mother’s solicitor about various matters relating to the parties’ parenting and property dispute as follows:
… We write to advise you that our client plans to relocate to the Eastern Suburbs with [the child] in late June 2021 in order to commence his new employment on 1 July 2021. Our client has secured separate rental accommodation in [Suburb J], he does not propose to reside with his partner at this stage yet their homes are close to one another.
Given our client will be relocating, our client proposes that the child attend [Suburb J Public School]. Our client has made enquiries and the child can commence at the commencement of Term 3 at [Suburb J Public School]. We confirm that the parties have discussed [Suburb J Public School] being an option for the child, when our client relocates, if our client was within the appropriate catchment area.
Our client is not in a position to meet any [private] education therefore, it is not available to our client to enrol the child in [P School]. We also note from your client's disclosure to date that your client does not have capacity to meet [specialist private school] education, given her limited income. We confirm that your client is making Nil contribution to the child's outgoings nor paying any child support to our client.
…
I note that the letter from the father’s solicitors to the mother stated that the mother was “aware that it was never our client’s intention to remain in Suburb L” and I accept that there may have been discussions between the parties in the process of settlement negotiations which have not been related to the Court. Nonetheless, on the face of the letter, I am satisfied that the representation made by the father through his lawyers was presented as a fate accompli as opposed to an invitation to discuss the child’s future schooling arrangements.
This is in the context where Order (20) of the orders made on 24 November 2020 anticipated the child continuing at her current school.
Further, it is clear that both the mother and the child will be impacted by any such change in the child’s school. This is in circumstances where the mother has in recent months moved from the Eastern Suburbs to the Northern Suburbs to be closer to the child which is, pursuant to Orders (3), (6) and (17) made on 24 November 2020, the location from where she is required to collect the child and on some occasions deliver the child in respect to the contact visits. Clearly, it was appropriate in those circumstances for the mother to be consulted in respect to the proposed change in the child’s school.
In those circumstances it is regrettable that there has been such inadequate consultation, regarding the father’s proposal to change the child’s school.
While the father’s failure to properly consult with the mother is regrettable, as previously noted, s 60CA of the Act requires the Court to consider the best interests of a child when deciding whether to make a particular parenting order. This includes orders relating to which school a child should attend. The Court does not make parenting orders for the purpose of chastising or penalising a parent although, a party’s failure to comply with their statutory obligations is clearly a relevant matter in the Court evaluating whether that parent has acted responsibly in discharging their parental responsibilities.
Section 60CC(2) considerations
Meaningful relationship
Section 60CC(2)(a) of the Act requires me to consider the “the benefit of the child having a meaningful relationship” with each of the parties. On the other hand, I must consider the issue of the risk associated with the child possibly being subject to physical or psychological harm, neglect or abuse in the care of either of the parties (s 60CC(2)(b)).
In Loddington & Derringford (No 2) [2008] FamCA 925 Cronin J noted, at [169] that:
There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.
(emphasis added)
Both parties acknowledge that it is in the child’s interests to have a meaningful relationship with both parents. In that context it is to the credit of both parties that they have, until these proceedings, consulted and reached agreement regarding parenting arrangements. It is the parties’ cooperation which has led to an increase in the time that the child spends with the mother consistent with the mother’s recovery from her mental health challenges, and the parties’ and the Court’s satisfaction that there is an appropriate regime of treatment in place for the mother to maintain sound mental health.
Risk
The second primary consideration, as set out in s 60CC(2)(b) of the Act, is the question as to whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with either parent.
In SS & AH [2010] FamCAFC 13 at [100], Boland and Thackray JJ noted that, in the context of the Court considering the issue of risk in interim proceedings:
… Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible, when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
It is to be observed that reference to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect children from that risk. It is clear that, in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for determining such “possibilities”: see Bant & Clayton (2015) 53 Fam LR 621 at [99].
The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or only some of which, are proved to that standard: see Johnson & Page (2007) FLC 93-344 at 81,890-81,891 endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty, ‘Unacceptable Risk – A Return to Basics’ (2006) 20 Australian Journal of Family Law 249.
In this matter the parties have previously acknowledged a potential issue of risk in respect to the child spending time with the mother and, on that basis, orders made previously, in these proceedings, have provided for all and then some of the child’s time with the mother to be supervised. To her credit the mother has continued to undergo a program of appropriate, and, it appears, substantially effective treatment in respect to her mental health challenges. On that basis the parties have agreed that it is appropriate for orders to be made for the child to spend unsupervised time with the mother. In the context of being informed by the opinions expressed by Dr S, who has actually attended discussions between the parties, those orders have provided for the child to spend an increasing amount of time with the mother on a graduated basis.
Save in respect to one area of disagreement between the parties to which I will refer, the mother has failed to satisfy me that it is appropriate and, most relevantly, in the best interests of the child for there to be an increase in the amount of time that the child spends with the mother at this point in time.
In that respect I have been influenced by the caution expressed in the Family Report of Dr S which is expressed at page 41 of his report as follows:
… The question really is one of whether the mother will adopt rational processes in supporting [the child’s] relationship with her father, or whether she is still experiencing undisclosed irrational thinking about the father-daughter relationship which might cause her to act precipitately, inappropriately or even physically harmfully to protect [the child] from imagined dangers. As [Dr H] infers, in extreme cases this could even lead to an altruistic tragedy.
Further, at page 45 of the Family Report Dr S expresses the opinion that the mother’s belief that the father has perpetrated acts of family violence upon her which, in turn, has caused and or exacerbated her mental health issues, is likely to be “a fixed and false belief.”
Reflective of the mother’s belief, relevantly, it is the father’s unchallenged evidence as set out in his Affidavit of 14 June 2021, that on 8 May 2021 the mother sent a text message to the father in which she stated, “…I planned to do exactly that until you abused me out of my own home and daughter’s life” and “[y]ou’ve actively kept the child away from me for 5 years and NOW you want me to have her tonight after I’ve asked all week?!”.
Also in May 2021, the father contends the mother sent a further text message to the father which read “I’m not putting up with this psychological manipulation and emotional abuse any more. You play with fire, you get burned”.
In a similar context, in February 2021, the mother sent a text message to the father stating “I am well within my rights to discuss with the the child who she sees”, further stating, “so I will be instructing my lawyer to relist … as I told her, you can’t negotiate with a terrorist”. To be clear I infer that the mother’s reference to the father as a terrorist was a view expressed to her lawyer rather than to the child. Nevertheless, the contents of the text remains a concern.
Further, on 21 February 2021 the mother sent to the father a text which included the following statement:
… I’m sick to death of your pathological lying, masked manipulation and attempts to control me and my relationship with my own daughter, for your own self-serving interests. It won’t work any more. We will go to court, and you will lose again.
(As per the original)
It is, of course, possible that, at a final hearing, the trial judge may find the mother’s imputations that the father has engaged in coercive and controlling conduct, that constitute psychological manipulation and emotional abuse, are of substance. However, acting conservatively, as I must do in these interim proceedings, the comments made by the mother, as reflected in those text messages, are also consistent with her having a “fixed and false” and, indeed, “paranoid” opinion regarding the father’s conduct. In that context, at page 45 of his report Dr S stated:
In my view her current beliefs about the cause of her mental breakdown and about being abused by the father are both overvalued ideas. Moreover, holding two such beliefs simultaneously which are basically unconnected to each other suggests that paranoid thinking is still an issue, although not to the degree of overt psychosis. However, a further concern is that she may already hold, or will develop in the future, further overvalued ideas to the point that she would meet the criteria for a paranoid personality disorder or another form of paranoid disorder.
Without the benefit of the parties’ evidence being tested in a final hearing and without the benefit of receiving further input by the expert witnesses, in light of the parties’ testimony, it is, in my view, unsafe, at this point of the proceedings, to make orders for there to be an increase in the child’s time with the mother. Specifically I find that there is an unacceptable risk in doing so.
Most relevantly I am not in a position to determine the question identified by Dr S on page 41 of his report, that is, “whether [the mother] is still experiencing undisclosed irrational thinking about the father-daughter relationship which might cause her to act precipitately, inappropriately or even physically harmfully to protect the child from imagined dangers.”
I also note that on page 47, Dr S questioned whether the mother, as yet, has “the parenting skills to manage the child’s distress reaction optimally” in the event of there being orders for her to spend “far less time with her father”. I note that the amended order proposed by the mother in her Further Amended Application in a Case filed on 22 June 2021 seeks an increase in overnight time by only one night per week, however, in the absence of being able to canvass the views of the single expert in these interim proceedings, and again, acting cautiously as I must do, I am not satisfied that it is appropriate at this point in time, for orders to be made to increase the amount of time that the child spends with the mother.
Conclusion in respect to section 60CC considerations
Having regard to the totality of the s 60CC considerations to which I have referred and, most relevantly, concerns that I have expressed in respect to the mother’s current parenting capacity and the issues of risk that I have identified, I am not satisfied that it would be in the best interests of the child for orders to be made, in the context of these interim proceedings, increasing the amount of time that the child spends with the mother over and above the time currently provided for in the orders made by Senior Registrar Campbell on 24 November 2020 as varied to provide for the child to spend time with the mother during school holidays and special days.
Should the parties be restrained from changing the child’s school?
In circumstances where it is agreed that the father should be permitted to change the child’s school, the question becomes what school the child should be enrolled in and when should that occur.
In Re G: Children’s Schooling (2000) FLC 93-025 (‘Re G’) at [66] the Full Court held that the object and principles in s 60B “are to be taken into account in the course of considering the relevant matters in [s 60CC of the current Act] which provide a check list to meeting the essential enquiry required by [s 60CA].”
In addition, the Full Court noted at [65] that “the reality of the children residing predominantly with one parent” may be a relevant consideration. A further relevant consideration, as stated at [92] is which school is closer to the child’s primary residence.
At paragraph 95 of his Affidavit filed on 9 June 2021 the father attested to the Suburb J Public School being approximately 400 metres from the property where he will be living with the child when he moves to the Eastern Suburbs. He further attested to the property being 100 metres away from where his partner resides.
As noted by Harper J in Adelstein & Byron [2021] FamCA 4 at [12]:
12.In relation to schooling, the leading authority is the Full Court of the Family Court of Australia's decision in Re G (Children’s Schooling) (2000) FLC 93-025; (2000) 26 Fam LR 143; (2000) 155 FLR 459; [2000] FamCA 462. This decision has been followed many times. In Bilz & Breugelman [2013] FamCA 578 at [81]- [83] Austin J explained the relevant principles as follows:
[81]Schooling disputes are not resolved by application of a "blanket presumption" or preference for the views held by the residential parent (Re G at [29], [45], [65]). The [C]ourt is required to apply the objects and principles of Part VII of the Act and to consider the statutory criteria in forming conclusions about the child's best interests (Re G at [66]-[68]).
[82]That is probably self-evident, but other more generalised observations were made by [the Full Court]. In particular, the process of evaluation should not entail an assessment of the relative merits of the schools preferred by the parties, at least in circumstances where the competing schools are prima facie satisfactory (Re G at [91]-[92]). Ordinarily, it will be in the child's best interests to attend a school close to his or her residence, and further, it is proper to consider evidence as to any greater effect of the decision upon the resident rather than non-resident parent (Re G at [92]-[93]), but that does not mean the convenience of the non-resident parent is ignored (Eden-Proust at [56]-[63]). While the views of the child are relevant to the inquiry, as s 60CC(3)(a) of the Act now stipulates, those views are usually not determinative. That is because, unless a child is actively unhappy in a particular school environment, it is not at all unusual for the child to express a desire to remain at his or her existing school (see Re G at [96]).
[83]There is conflict in the authorities about whether any prior agreement between the parties concerning the child's schooling is influential (see Re G at [92]; Eden-Proust at [48]). There also seems a difference of opinion about the need to refer specifically to each of the factors enumerated in s 60CC or whether it is permissible to simply analyse the evidence discursively with those factors in mind (see Re G at [67]-[90]; Eden-Proust at [69]).
In this matter, senior counsel who appeared on behalf of the mother on 24 June 2021, contended that the Court should have regard to the fact that the parents have previously agreed to the child attending a specialist private school. It is self-evident that the child has attended such a school and presumably the parents reached an agreement to that effect. Nevertheless, the father attests to the parties considering a range of schooling options at the time the child commenced school. In the absence of evidence as to the nature of any agreement at the time the child commenced school in the private system, it is not possible for me to infer, as a matter of probability, that the parties agreed that the child would remain throughout her schooling in the private system. Moreover, as noted in the decision of Austin J in Bilz & Breugelman [2013] FamCA 578 (‘Bilz’), referring to Re G, the existence of any such agreement would not be determinative of this issue.
Further, the Full Court cautioned at [91] in Re G against the Court engaging in “an assessment of the relative merits of the schools preferred by the parties.” That guidance has particular significance in the context of interim proceedings, where each party has presented their respective arguments as to the desirability or the undesirability of the specialist private school system.
Instead, it is clear, that the Full Court in Re G placed greater consideration on matters of practicality including, most relevantly, for the purpose of these proceedings, and as noted by Austin J at [82] in Bilz, referring to Re G, that “[o]rdinarily it will be in the child’s best interests to attend a school close to his or her residence …”
In this matter, I am without evidence as to the distance between the father’s residence and the P School which is located in Q Street, Suburb R, nor have I been provided with evidence as to the travelling time that would be involved. In that respect it is not possible to draw inferences regarding the potential impact of local traffic conditions at school commuting times or to purport to draw inferences from the fact that both Suburb J and Suburb R are in relatively close proximity to the Sydney Central Business District. I am simply without evidence to make a determination of those matters. They are, nonetheless, clearly matters that the Court would require evidence about in order to make a proper determination as to the impact of travelling to and from school upon both the child and the parent with whom the child is primarily living which, in this case, is the father.
However, contrary to the absence of evidence from the mother regarding travelling time and distance, the father has provided evidence regarding the close proximity of the Suburb J Public School to his place of residence and also the residence of his partner. This is in circumstances where the mother had the opportunity of adducing evidence about travelling distances and times in circumstances where she filed an Affidavit on 22 June 2021 subsequent to the evidence provided by the father in his Affidavit filed on 14 June 2021.
In those circumstances and in circumstances where both the P School at Suburb R and also the Suburb J Public School are “prima facie very satisfactory”, as noted in Re G at [92], the evidence regarding the close proximity of Suburb J Public School to the home where the child will live is a highly relevant consideration. As against that consideration I accept that, as a matter of common sense, it may be less stressful for the child to change to a school that adopts similar practices and procedures to her existing school. On the other hand, I have considered the evidence of the child’s treating psychologist and, to a lesser extent, the opinion of Dr S regarding the child’s robustness notwithstanding the circumstances which she has confronted. Having regard to that evidence and where I am satisfied that appropriate support will be provided to the child to adjust to a new school environment, I am satisfied that the child will be able to cope with the change without undue trauma and distress.
On balance, therefore, in circumstances where I have been provided with evidence regarding the close proximity of the Suburb J Public School to the home where the child will live, in applying the principles adumbrated in Re G, as summarised appropriately by Austin J and also followed by my colleague, Harper J, I will make the order proposed by the father of the child to be enrolled in that school.
For reasons which I have previously set out, I am not satisfied that it is in the best interests of the child for that enrolment to be deferred until the commencement of Term Four of this year. In summary, that is because of the amount of the travel which would be imposed upon the child in travelling to and from the Eastern Suburbs during Term 3 to the Northern Suburbs.
For the avoidance of doubt I have considered the submission of senior counsel for the mother that a relevant consideration in this matter is the potential for the child’s current school to render an account to the parents in respect to the cost of the child’s education for Term 3. This is in circumstances where a policy document tendered as exhibit to in the proceedings on 24 June 2021, indicated that it is a policy of the school to require one term’s notice. While I have given consideration to that matter, it is a minor consideration insofar as the notice requirement would appear to apply to the child being removed from the school at the end of Term 2 irrespective of which school the child is subsequently placed in. There is not, on the face of the document for instance, a reference to fees being waived if the child is to be enrolled in another school in the private system.
For reasons which I have set out, I have determined that it would be contrary to the child’s best interests to defer her change of school until the commencement of Term 4. I was not addressed by the parties as to which party should pay the fee of the child’s current school, if such a fee is rendered in respect to inadequate notice. In those circumstances I am unable to determine whether the liability would be that of either parent or whether it would be the joint liability of the parents. Either party would, however, be free to make a further application if there is a dispute regarding payment, if such a demand should be made by the school.
CONCLUSION AND ORDERS
For all of these reasons, I dismiss the mother’s Further Amended Application in a Case filed on 22 June 2021 and I make an order in terms of the order proposed by the father in his Response filed on 15 June 2021, for the enrolment of the child in the Suburb J Public School to commence Term 3 of 2021.
I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McClelland. Associate:
Dated: 8 July 2021
- AGLC
- Medvitz & Baginski [2021] FamCA 421
- Case
- [2021] FamCA 421
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether to grant the mother leave to re-open the interim proceedings, and if so, to then determine the best interests of the child regarding the competing proposals for schooling and the extent of the mother's time with the child. Central to these determinations was the application of section 60CC of the *Family Law Act 1975* (Cth), which mandates that the best interests of the child are the paramount consideration. The court also considered the presumption of equal shared parental responsibility under section 61DA of the Act, noting that it was not appropriate to apply this presumption at the interim stage due to unresolved allegations of family violence and differing parental capacities.
McClelland DCJ granted the mother leave to re-open the issues, finding it to be in the child's best interests given the mother had significantly moderated the relief she was seeking. In determining the schooling issue, the court noted that it was not possible to make definitive findings on the merits of the competing school systems at the interim stage. However, the court found that the child's best interests supported a change in school to one proximate to the child's residence. The court relied on expert evidence, including a Family Report by Dr S, which highlighted the father's consistent and competent parenting and the mother's past difficulties with parenting capacity due to mental health challenges, while acknowledging her commitment to treatment and increasing engagement with the child.
Ultimately, the mother's further amended application seeking enrolment in a specialist private school was dismissed. The court ordered that the child be enrolled in Suburb J Public School to commence in Term 3 of 2021, reflecting the father's proposal and the court's finding that this was in the child's best interests at this interim stage. The parties were directed to sign all necessary documents to facilitate this enrolment.
Orders
Orders of the court
SYC 4381 of 2019
BETWEEN:
MS BAGINSKI
Applicant
AND:
MR MEDVITZ
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
24 JUNE 2021
THE COURT ORDERS THAT:
1. The mother is granted leave to re-open the issues subject to the judgment reserved on 15 June 2021, and to rely on the relief set out in her Further Amended Application in a Case and Affidavit, filed on 22 June 2021.
2. The father is granted leave to rely on his Affidavit filed on 23 June 2021.
3. The mother’s Further Amended Application in a case filed on 22 June 2021 is dismissed.
4. The parties shall sign all documents and do all things necessary to ensure that the child is enrolled in Suburb J Public School to commence in Term 3 of 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The issues in dispute in this matter are: (a)should the father be required to take all reasonable steps to have the child enrolled in the P School at Suburb R; (b)if so should the child commence at that school in Term 3 or Term 4; and(c)should the amount of time that the child spends with the mother be increased such that the child spends overnight time with the mother every Tuesday rather than a period of several hours as she currently does. Best interest considerations (s 60CC) As noted, it is the responsibility of the Court to regard the best interests of the child as a paramount consideration even in interim parenting matters (s 60CA). It must do this in circumstances where the evidence of witnesses has not been tested through the process of cross examination and where there is limited expert evidence before the Court. In Goode, the Full Court observed that a trial judge has a limited ability to resolve controversial factual issues in interim proceedings. In that respect, in Iphostrou & Iphostrou and Ors [2011] FamCA 20 at [44], Cronin J said:In any situation of an interlocutory nature where the facts are controversial and in dispute, a court cannot make findings of fact. Findings of fact form the basis upon which orders are made within jurisdiction. … Further, in Banks & Banks (2015) FLC 93-637 at 80,116, the Full Court outlined a practical approach to applying the considerations set out in s 60CC of the Act, in interim proceedings. In paragraphs [48] though to [50] of that decision the full Court said;48.It should also be said that in parenting proceedings as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim proceedings should be confined to those issues which, in the best interests of the children, require determination prior to a proper determination at trial…49.… there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582. 50.When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.(Emphasis added) Within the constraints identified in Goode, I will address the s 60CC considerations by focussing firstly on those matters set out in s 60CC(3) of the Act before addressing those matters set out in s 60CC(2).Issues relating to the children – their views, level of maturity, culture and relationships (s 60CC(3)):Sub-section (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;Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; andSub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.