Merla and Merla (No.3)

[2018] FCCA 1087

FEDERAL CIRCUIT COURT OF AUSTRALIA

MERLA & MERLA (No.3) [2018] FCCA 1087

Catchwords:
FAMILY LAW – Parenting – best interests of children – orders made.

Legislation:

Family Law Act 1975, s.60CC

Applicant: MR MERLA

Respondent: MS MERLA

File Number: PAC 5685 of 2017

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Judgment of: Judge Newbrun

Hearing date: 29 January 2018

Date of Last Submission: 29 January 2018

Delivered at: Parramatta

Delivered on: 29 January 2018

REPRESENTATION

Solicitors for the Applicant: Mr West of Coleman Greig Lawyers

Solicitors for the Respondent: Mr Kent of Kent Attorneys

ORDERS

1. The parties and the children of the relationship shall attend a Child Inclusive Conference on 22 February 2018 at 9am.

2. Within 14 days, the Respondent mother shall file and serve her Response.

3. The Court appoints an interim hearing on 27 February 2018 at 10.00am.

4. Each party file and serve on each other party and provide to the Court (by email to [email protected]) no later than 7 days prior to the interim hearing a case outline setting out material relied upon, orders sought and brief submissions in relation to relevant considerations under s.60CC of the Family Law Act1975.

5. Within 21 days, the Applicant father, if so advised, shall file and serve any short updating Affidavit (shall be no longer than 6 pages and contain no more than 3 annexures).

6. Pending further order, the child [X] shall attend Year 9 at (School B).

7. Pending further order, the children [Z], [Y] and [W] shall attend the (School C) and (School C), as proposed by the mother in her Affidavit filed 25 January 2018.

IT IS NOTED that publication of this judgment under the pseudonym Merla & Merla (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5685 of 2017

MR MERLA

Applicant

And

MS MERLA

Respondent

REASONS FOR JUDGMENT

1. So the Court will now proceed to make a decision.  The parties have been unable to make a decision about a four week period.  The Court refers – there are competing applications before the Court this afternoon in relation to what occurs in the next four weeks with the children’s school enrolment.  The Court has indicated to the parties earlier this afternoon that it will hold an interim hearing in late February this year as to where the children attend school on an interim basis, whether schools in the (Suburb 1) area, which historically and to date have been the area where the children have been attending school, or in the (Suburb 2) area, being an area where the mother is presently – where the mother lives nearby in (Suburb 4) with her parents and where, on recent oral evidence just given to the Court, she proposes to live in the future. 

2. The affidavit evidence relating to the views of the children about where they want to attend school differs in some respects.  There is some common ground on the evidence that the boy, [X], the eldest child, wants to remain attending the (School B).  He is going into Year 9.  It is not without relevance that he has historically experienced some anxiety condition and the Court takes into account that he has suffered this anxiety condition. 

3. And that if ultimately, in late February when the Court hears this matter relating to the children’s school, if it does transpire that the Court decides the children remain attending school in the (Suburb 1) area, in particular, [X], in light of his historical anxiety condition, the Court takes into account that there is some sense in [X] remaining attending (School B), at least for the next four weeks, in light of that historical anxiety condition, so that he does not experience increased anxiety if he has got to, over the next four weeks, attend a school in (Suburb 2) and then ultimately the Court decides that he has got to go back to (Suburb 1).  So there is some sense looking at [X]’s position and his remaining attending the (School B), at least for the next four weeks.  The Court takes that into account. 

4. The other children have expressed differing views according to the evidence of the mother and the father.  According to the father, at least, the children, I think some of the other children have indicated a wish to remain attending school at (Suburb 1), whereas, according to the mother, they are, in effect, following discussions with her, coming around to the notion that they could well adjust to moving into schools in the (Suburb 2) area. 

5. The Court does not give significant weight to the younger children’s views at this stage.  The Court notes in this context that it has directed the children and the parties to attend a Child Inclusive Conference on       22 February next.  The Court gives some weight to [X]’s views about remaining at (School B).  But again, the evidence of the parties is conflictual to some extent as to the younger children, namely, as to whether they, according to the father, are more desirous of remaining at their schools in (Suburb 1) as opposed to the mother’s evidence that they are coming around to her proposal to send them to schools at (Suburb 2). 

6. In terms of the meaningful relationship primary consideration, the Court is making a judicial determination this afternoon for a period of just four weeks. I think whether the children attend (Suburb 2) schools for the next four weeks or schools at (Suburb 1), either way, it will not affect in any significant way, the children’s meaningful relationship with either parent, which would appear to exist. As to the risk of harm primary consideration, apart from that issue of potentially [X]’s anxiety condition being exacerbated if a decision is made to put him into (Suburb 2) now and then later on, the Court was to change its mind and put him back into a school at (Suburb 1), thereby potentially exacerbating his anxiety condition, apart from that issue, there is really no risk of harm issue in relation to this four week decision the Court is now making, under section 60CC of the Act.

7. The Court notes the father’s submission that the mother has not acted in a child focused way.  The father submits the mother has just acted unilaterally in enrolling the children at (Suburb 2), taking them to these orientation days at (Suburb 2), it is submitted, behind the back of the father.  The mother just a moment ago gave some oral evidence that she had some personal difficulties with confronting the father about this issue of her proposals for the children’s prospective schooling at (Suburb 2).  She gave that evidence a moment ago.  The Court takes her response into account in relation to the father’s submission in that context.

8. The Court takes into account the parties’ competing interim parenting proposals in relation to time that they propose to spend with the children.  The mother proposes that the children live with her and spend only, I think it is four nights per fortnight with the father, as opposed to the father’s proposed interim parenting Orders.  He wants to spend some six nights out of fourteen during school term times with the children, apart from school holiday time.  So even on the father’s proposal, the children will be spending greater time, at least on an interim basis, living with the mother. 

9. The Court takes into account the mother’s evidence that since September last year when she moved to (Suburb 4) to live in the rented premises with her parents, that she has experienced some practical difficulties in transporting the children over to their schools at (Suburb 1).  The Court takes into account that as far as the mother is concerned, practicality wise, it would be easier for her to transport the children, she living with the children at (Suburb 4), to take them to schools at (Suburb 2).

10. The Court takes into account that since at least October 2017, following the parties’ separation, the children have been living predominantly with the mother – some ten nights out of fourteen with the mother and four nights per fortnight with the father.  The Court takes into account that the mother has purchased a new school uniform for one of the children to attend one of the (Suburb 2) schools.  She has obtained a (Suburb 2) school uniform for one of the other children.

11. The Court should add here, by way of information, that [X] is going into Year 9 this year.  The child, [Y], is going into Year 3.  The father’s proposal is that [Y] attend (School A) at (Suburb 3).  His proposal is that [X] continues to attend (School B).  The mother wants [Y] to attend a school at (Suburb 2).  [Z] is going into Year 7.  The father wishes her to attend the (School B).  The mother wants [Z] to attend a school at (Suburb 2).  [W] is going into kindergarten.  The father wants the child, [W], to go into kindergarten at (School A).  The mother wants that child to go into a school at (Suburb 2).

12. The Court takes into account, the mother’s oral, that part of the mother’s oral evidence, where she states that her intention is to live in the (Suburb 2) area.  Her affidavit evidence being that she moved into the parents’ rented premises at (Suburb 4) after the family home was sold back in September last year.  The Court takes into account her long-term goal is to live on the one property, but in two separate homes on the one property, with the maternal grandparents in a home in the (Suburb 2) area to be purchased.

13. The maternal grandparents used to live at (Suburb 5).  The Court takes into account that she is proposing that her parents will assist her with care of the children, at least for that period of time that she is at work working as a (occupation omitted).  The Court takes into account the mother’s oral evidence a moment ago that the child, [Z], if going to the school at (Suburb 2) will attend a bonding experience on a school camp in the first week of attending school at the school in (Suburb 2).

14. On this very interim limited judicial determination this afternoon, the Court gives significant weight to the mother’s practicality problems in transporting the children to schools in the (Suburb 1) area as opposed to schools at (Suburb 2).  It seems to the Court in all the circumstances and having regard to the Court’s brief reasons expressed above, that it will be in the best interests, over the next four weeks, until the Court holds its interim hearing in late February this year, that [X] attend the (School B) for Year 9 up at least until the date of the next, or pending further Order, and that the other children, [Y], [Z] and [W], be enrolled in schools in the (Suburb 2) area as proposed by the mother. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 2 May 2018