Mercer and Kinch

[2008] FamCA 1005

FAMILY COURT OF AUSTRALIA

MERCER & KINCH [2008] FamCA 1005

FAMILY LAW – CHILDREN – Magellan – Interim – School attendance – effect of travel on young child

Family Law Act 1975 (Cth)

FATHER: Mr Mercer

MOTHER: Ms Kinch

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 4998 of 2008

DATE DELIVERED: 12 September 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 12 September, 2008

REPRESENTATION

COUNSEL FOR THE FATHER: Ms. Phelan

SOLICITOR FOR THE FATHER: Perry Weston

COUNSEL FOR THE MOTHER: Ms. Walters

SOLICITOR FOR THE RESPONDENT: Lampe Family Lawyers

INDEPENDENT CHILDREN’S LAWYER Danielle Webb

Orders

1. That the father be at liberty to enrol K born … August, 2002 (“the child”) at C Primary School, to commence attendance at the start of the fourth school term in 2008, and maintain her enrolment until further order. 

2. That the child continue to attend S Primary School in Y for the balance of the third school term. 

3. That until further order the mother be at liberty to attend C Primary School for events, activities and functions routinely attended by parents, including (but not limited to) any reading assistance program or other programs pursuant to which parents spend time in the classroom. 

4. That as soon as practicable the mother serve a sealed copy of this order on the principal of C Primary School. 

5. That pursuant to s.62G(2) of the Family Law Act 1975 a Family Report be prepared and released before 7 November, 2008.

6. That the further hearing of all extant applications be adjourned before the Honourable Justice Brown and the Magellan Registrar on 21 November, 2008 at 10:00 am.

7. That the reasons for judgment this day be transcribed and copies made available to the parties.

8. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and a solicitor appearing as counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4998 of 2008

MR MERCER

Father

And

MS KINCH

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The parties have a daughter, K, who was born in August 2002;  she has just turned six.  The mother has a son, D, from an earlier relationship.  He was born in February 1999.  He will be 10 in February. 

2. D has some difficulties, the nature of which may be in dispute.  The mother's evidence is that he has been diagnosed with Asperger's syndrome, an autism spectrum disorder;  the material imparts a sense that this impacts on a number of aspects of his development and his behaviour.

3. The parties and D’s father were involved in extensive litigation in the Federal Magistrates’ Court in 2006 and 2007.  A family report was prepared by Mr G and on 30 July, 2007, a few days after its release, final parenting orders were made in relation to both children.  D was to live with his mother and have some contact with his biological father, who is not a party to this litigation.  K was to live with the mother.  Her parents were to have equal shared parental responsibility for her.  She was to have time with her father until she started school from Thursday to Monday;  when she started school she was to be with him from the conclusion of school on Thursday to the start of school on Monday.  Orders provided for time during school holidays and on special occasions.

4. In the course of those proceedings numerous allegations were made.  These included allegations of drug use;  of D’s father hitting him and the mother slapping K;  that D took off K’s nappy and had his hands on or near the genitals.  A number of forms 4 were filed with the Department of Human Services.

5. For a brief period, the parties were not before a court.  An application was then filed on 2 October 2007 by the mother, in the Federal Magistrates’ Court, seeking a recovery order to take possession of K.  At that point, a fresh form 4 notice of abuse was filed, alleging the father had permitted K to play with his penis in the shower in July 2007.

6. On 4 October 2007 an order was made requiring K to be returned to her mother by 5 pm that day. 

7. The independent children's lawyer was not reappointed for some time.  A federal magistrate ordered an updated report from Mr. G and the case was set down for a two-day trial to commence on 10 June 2008.  Mr. G’s report was to have been prepared by 5 May, 2008 but events overtook that.

8. On 22 April this year, interim orders were made in the Federal Magistrates Court, by consent, providing for K to live with the father.  He was to ensure she continued to attend S Primary School in Y each day.  Until the adjourned date, which was 2 May, K was to have no contact with her brother, D.

9. On 2 May the case was further adjourned to 7 May and the interim orders were extended.  The case remained in the Federal Magistrates’ Court.  On 7 May the orders of 22 April were - I note the interesting term – “enlarged” until further order.  I assume an intention that they were to continue in full force and effect.  It was on that day that Burnett FM, the fifth federal magistrate to have made orders in the case, transferred it to the Magellan list, in this court.  There is little point in commenting on that order, save to say that it is for this court to determine whether a case is suitable for that list.  I take the view that as the matter cries out for focused case-management, it should stay in this list. 

10. On 5 August 2008 the matter came before Senior Registrar FitzGibbon.  Material was prepared for that hearing, which I have read.  Many facts are in issue.  His Honour was in the same position as I, in that he could not make findings on contested facts in issue at that time.  There was no opportunity for parties and witnesses to be cross‑examined or to adduce responsive or additional evidence in support of their respective cases.

11. It is reasonable to infer that the senior registrar was critical of the father's breach of the earlier order.  The mother's evidence at that time was that from the commencement of term 3, when the father overheld K, she had not been attending S Primary School in Y.

12. The mother lives in Y.  She has been in her present accommodation for some three months.  It is temporary housing.  She may have to leave it in another three months.  She may be able to find other accommodation in the area.  She lived with her children in a caravan park in Y between March and May of this year and lived in that area for a period prior to that.

13. The father lives in C.  It is a 70 to 80-minute drive from his home to S Primary School in Y.

14. It must be said that when the orders were made on 22 April, requiring K to attend school in Y, the adjourned date was 2 May, less than two weeks away.  It was then extended to 7 May;  no doubt the parties believed that the Federal Magistrate’s Court would determine the matter soon after that.  It is unlikely either thought the interim orders would remain on foot for this length of time.

15. The father, in a recently sworn affidavit, sets out the facts on which he relies as supporting an order which would allow him to enrol K in C Primary School, a school she attended briefly at the start of term 3.  He has deposed to the effect of the travel on K, and on him.

16. The interim orders provide for K to live with her father in C during the week but attend S Primary School in Y on each week day.  Further, they provide for her to have day contact with her mother on each Saturday and Sunday in Y.  This means that K is driven between C and Y every day of the week.  It is a lot of driving for a child.  It is also a very expensive proposition, given the price of fuel.

17. The father’s evidence is that K is tired and is not as responsive at school as she could be.  The mother's evidence is that K is thriving and not at all tired at school.  The mother has some involvement at the school with reading; the extent of that is a little unclear but she has deposed to some recent attendances, and some earlier attendances.

18. A letter from the school has been tendered by the independent children's lawyer, who spoke with the principal.  It is dated 12 September, 2008 and reads as follows :

    [K] has been attending [S] Primary School as a prep enrolment.  She has been travelling from Melbourne daily to attend school.  We have noticed that she is tired by the end of the week.  [K] has settled back into [S Primary School] well.  She engages in all class activities and is a keen learner. 

19. I do not place weight on the father's concern that she is now the only girl in her class, or that she might have said that she is unhappy at that school.  Children of her age can express one view one day, one another.  They can also be attuned to their parents’ thinking;  even when a parent does his or her best not to implicate them in the dispute, they may tell a parent something they think that parent would like to hear.  It would be dangerous, at this stage, to place too much weight on K’s expressed views. 

20. The parties are also in dispute about the weekend contact K has with her mother.  The mother alleges that the father has failed to deliver K, on occasions.  He alleges she bears responsibility for not seeing K, because she was late.  He alleges she has overheld K, and kept her overnight;  on one occasion he arranged for the police to collect her, when the mother did not return her as required.

21. Weight is placed by the mother on the fact that she has been able to play a role in K’s life at school (for example, attending reading) because the school is close to her.  She submits that this would be impossible if K is at school in C.  If it is okay for a six-year-old to travel, it is okay for an adult to travel;  if the child changes schools, there is no reason why the mother could not be involved in her school life in C.  An order could make that clear.  Regardless of the father's wishes in that respect, the mother could, for example, attend for reading on one day a week or even attend two days a week.  She would have to travel one or two days a week.  This child is travelling five days of the school week.

22. I appreciate transport is often a problem for people of limited means.  Access to vehicles can be difficult and funds to pay for petrol inadequate.  But the court's focus has to be on the best interests of children.

23. I have heard briefly from Ms. H, a family consultant who is assisting the court this morning.  Ms H’s evidence relates to children in general, rather than to K in particular.  She has given evidence of the relevance of K’s developmental age and stage and the importance of children of her age exploring the world outside home, from a secure home base.  She also spoke of the ramifications of this much travel on a little girl of K’s age.  Not only is it likely that she will be tired by the end of the week or, indeed, tired at the end of the day, but the travel impacts on her everyday life.  She cannot do, before and after school, the things that a child can do if only five or 10 minutes away from school.  She cannot spend time with her school mates after school, because she must travel.  She cannot play at home before and after school, because she must travel.

24. I am aware this question has been argued before and orders were made for K to stay at S Primary School.  This matter is now in the Magellan list and will be managed to a trial as soon as possible.  Additional material is before the court.  The court's emphasis must be the best interests of K;  her parents' wishes and desires have to give way to those interests.  It is not a question of punishing or rewarding a parent.

25. I am not satisfied that it is in her interests for K to continue to do this much travelling until this case gets to trial, which cannot be fixed until further material is before the court in November.

26. I do propose to allow the father to enrol K at C Primary School, commencing in the fourth term.  She is to go to school in Y every day from now until the end of the third term.  She may then be enrolled at C Primary School from the start of the fourth term, which is a short term.

27. The mother will be at liberty to attend all events, activities and functions routinely attended by parents at that school and her solicitor can serve a copy of this order on the school principal.  I make it clear that this includes parental reading assistance in class and any other activity which parents routinely undertake.  There will be no limit on that.

28. I am not satisfied the orders for weekend time should be varied to provide for K to stay overnight with her mother.  Until the allegations can be determined, the court must err on the side of caution.  D has been (according to the mother) in South Australia for three weeks, living with her mother.  I understood the mother to say it was “an unpermanent arrangement”.  Whatever her intentions in that regard, the court needs further evidence about D’s interaction with K and the mother’s long term plans.

29. I make it clear to the parties that the orders are to be obeyed and that includes the orders for weekend time.  K is to be delivered pursuant to the orders and collected pursuant to the orders.  She is not to be overheld by the mother.  She is to be delivered by the father.  Each of the parties must understand compliance with the orders will reflect on his or her understanding of parental responsibility, and understanding of the obligation to foster the child's relationship with the other parent.

30. I will order that a family report be prepared by a family consultant in this court.  The next Magellan date will be 21 November 2008.  The family report will be released by 7 November 2008. 

I certify that the preceding
30 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2008.

…………………………………………
Associate.