MF and FA
[2005] FMCAfam 6
•17 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MF & FA | [2005] FMCAfam 6 |
| FAMILY LAW – Contact issue on interim basis and schooling. |
Family Law Act 1975
AMS v AIF (1999) FLC 92-852
B and B; Family Law Reform Act 1995 (1997) 22 Fam LR 676
Re G: [2000] FamCA 462
| Applicant: | MF |
| Respondent: | FA |
| File No: | PAM 44 of 2005 |
| Delivered on: | 17 January 2005 |
| Delivered at: | Parramatta |
| Hearing date: | 14 January 2005 |
| Judgment of: | Sexton FM |
REPRESENTATION
| Solicitors for the Applicant: | Malouf Solicitors |
| Solicitors for the Respondent: | Foster & Associates |
ORDERS UNTIL FURTHER ORDER BY CONSENT:
That pursuant to 62F(2) the parties attend further confidential counselling in this Registry at a time and date to be determined by the Registry.
The applicant and the respondent, by themselves, their servants or their agents are hereby restrained from removing or attempting to remove the child GA born 15 October 1999 [“GA”] from the Commonwealth of Australia.
The Marshall of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the child from the Commonwealth of Australia.
The Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the said child’s name on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia.
The Australian Federal Police maintain an airport watch of the said child on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of and give effect to, these orders.
Forthwith upon service of a sealed copy of this order upon them, the applicant and respondent deliver any passport in their possession or control relating to GA to the Registrar of this Registry of the court to be held by the said Registrar pending further order of the court.
That both parties be restrained from taking GA outside the Sydney metropolitan area.
AND IT IS FURTHER ORDERED UNTIL FURTHER ORDER:
That the father be prohibited from denigrating the mother or any member of the mother’s family in the presence or hearing of GA.
That the mother be prohibited from denigrating the father or any member of the father’s family in the presence or hearing of GA.
That the father deliver GA or arrange for GA to be delivered to the mother by 4 p.m. on 17 January 2005 and the mother have contact with GA as follows:
(a)From 4 p.m. on 17 January 2005 to Saturday 29 January 2005 at 4 p.m.
(b)Each alternate week from Wednesday after school until Saturday afternoon 5 February 2005 at 4 p.m. commencing Wednesday 2 February 2005
(c)Each alternate week from Wednesday after school until Sunday morning at 9 a.m. commencing Wednesday 9 February 2005.
(d)On Mother’s Day from 9 a.m. until 4 p.m.
(e)For the first half of each school holiday period unless otherwise agreed between the parties.
(f)At any other time by agreement between the parties.
That GA have contact with the father as follows;
(a)From Saturday 29 January 2005 at 4 p.m. until Wednesday morning before school on 2 February 2005.
(b)Each alternate week from Saturday at 4 p.m. until Wednesday before school commencing Saturday 5 February 2005
(c)Each alternate week from Sunday at 9 a.m. until Wednesday before school commencing Sunday 13 February 2005.
(d)On Father’s Day from 9 a.m. until 4 p.m.
(e)For the second half of each school holiday period unless otherwise agreed between the parties.
(f)At any other time by agreement between the parties.
That weekday contact be suspended during school holiday periods and continue after the school holiday period as though there had been no interruption to such contact and it is noted that for the purpose of these orders the Easter weekend is not a school holiday period.
That the father and the mother have sole responsibility for making decisions as to the day to day care, welfare and development of GA whilst he is in their care.
That the father collect GA from the mother’s residence at the commencement of contact periods and the father return GA to the mother’s residence at the conclusion of contact periods.
That the father ensure GA telephones his mother as soon as practicable after the end of his first school day.
That the father have liberal telephone contact with GA while he is in the mother’s care and the mother have liberal telephone contact with GA while he is in the father’s care.
That GA attend Christ the King School at North Rocks from the commencement of 2005 and both parties do all things necessary to ensure his attendance at that school from the first day of the school year and continuing.
That the mother have liberty to relist the matter at 24 hours notice in the event of non-compliance by the father with Order (11) herein.
That the proceedings be adjourned to Wednesday 16 February 2005 at 10 a.m. for interim hearing in relation to residence, contact and specific issues.
That pursuant to Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 44 of 2005
| MF |
Applicant
And
| FA |
Respondent
REASONS FOR JUDGMENT
Applications
These are proceedings for interim parenting orders in relation to the child of the relationship GA, born 15 October 1999, aged 5 years. The mother filed an application on 5 January 2005. She sought orders on a final and interim basis that GA live with her and have alternate weekend, one afternoon each week and half school holiday contact with the father. In her interim application she sought an order that GA be returned to her as soon as possible and that the matter be heard on an urgent basis.
The father opposed the mother’s application. He sought orders in his response on a final basis that GA live with him and have contact with his mother as determined by this Court. On an interim basis he sought orders that GA live with him, that the mother be restrained from removing GA from Australia or from Sydney, that GA’s passports be surrendered, that the mother be restrained from changing GA’s school enrolment at Christ the King School, North Rocks. He sought an order that the mother be assessed by a psychiatrist nominated by the father at her expense for the purposes of a report for this Court and an order that the mother ensure GA is not physically disciplined by any third party while in her care. At hearing, the father amended the interim orders he was seeking. He sought an order that the mother have supervised contact on a weekly basis. The mother did not file a Reply.
The matter was listed on an urgent basis on 10 January 2005. As both parties submitted that subpoenas were to issue in relation to the interim residence question, the matter was adjourned for interim hearing to 16 February 2005. It was common ground that GA had not had contact with his mother since 31 December 2004. The matter was therefore listed before me on the question of interim contact on 14 January 2005.
Background facts
The mother was born on 19 August 1964 and the father on
17 September 1964. They are both 40 years.
The parties commenced living together in February 1999 and married on 27 March 1999 in Sydney.
The parties separated in October 2001.
There is one child of the marriage, GA, born 15 October 1999.
Initially after separation GA lived with the mother. There is a factual dispute as to the parenting arrangements after 2002.
There are no current orders.
The father is living with his mother and sister at North Rocks. The mother is living with her partner RS at Parramatta.
An interim apprehended violence order was made by Parramatta Local Court on 21 December 2004 against the father which is listed for hearing in March 2005.
The father is a self employed computer technician and works Monday to Friday 9a.m. until 5 p.m as well as 5.30p.m. until 8 p.m. on Thursdays and Fridays.
The mother is a part-time language and literacy teacher.
Issues
The father said GA should not have unsupervised contact with his mother because she may remove him from Australia or at least from Sydney. He says orders would not protect GA as the mother has shown she has little respect for the law and may breach orders. The question for the Court was what contact GA should have with each party pending determination of the interim residence question.
A further issue arose in relation to GA’s schooling. Although there was no formal application before me, because GA is due to start school at the beginning of 2005 in only two weeks time, I was also asked by both parties to determine the issue of schooling.
The relevant law
Parenting orders arise in proceedings conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to Section 65E which provides that a court must regard the best interests of the child as the paramount consideration. Section 60B(2)(a) emphasises the rights of a child to (i) know both parents and (ii) to be cared for by both parents. The right to know both parents has been recognised as a fundamental consideration and it is only in the most exceptional of circumstances that orders would interfere with that right.
Section 60B(2)(b) provides that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development. It recognises the desirability of contact. The word ‘regular’ implies that contact should be as frequent as is appropriate. In B and B; Family Law Reform Act 1995 (1997)
22 Fam LR 676 the Full Court of the Family Court said “it is now well accepted that in most cases meaningful contact by children with both their parents is important to their welfare both in the short and long term.” In considering how much contact should be ordered, the court must make the order which it considers to be in the best interests of the children.
In deciding the contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in Section 68F(2) of the Act. Its subsections set out a list of matters the court must consider to the extent each subsection is relevant to the particular case. I have considered each of those subsections in reaching my decision.
Evidence
The mother relied on:
·
Her Affidavits filed 5 January 2005, 10 January 2005 and
13 January 2005.
·The Affidavit of RS filed 13 January 2005.
The father relied on:
·His Affidavits filed 10 January 2005
·The affidavit of CB filed 14 January 2005
·The affidavit of EB filed 10 January 2005
The father’s legal representative tendered documents which became exhibits in the proceedings. The parties’ legal representatives made submissions. As is usual in interim proceedings of this kind, neither party gave oral evidence.
At the commencement of the hearing, Ms Rowe for the mother said the mother had not had contact with GA for 15 days. The mother had arranged for GA to stay with his father from 31 December 2004 until 4 January 2005. At no time had she changed that arrangement. Despite her efforts to persuade the father to return GA to her from 4 January, the father had not returned him.
There was a significant factual difference between the parties as to the parenting arrangements for GA from the time of their separation.
I found the evidence from both parties on this issue unsatisfactory. The mother deposed to GA living with her from separation in October 2001 until mid-2003 while having regular contact with his father usually one night a fortnight increasing to alternate weekends and one night during the week. She said GA lived with her for the majority of the time until early 2004. She said that since then GA has spent approximately equal time with each parent. In her affidavit filed
13 January 2005, the mother said GA’s contact with his father gradually increased from mid-2003 until the beginning of February 2004 when residence was shared. She said there was a period of two months in July 2004 when GA spent an additional night per week with his father while she undertook a Traffic Offenders Programme. The mother’s partner Mr RS started a relationship with the mother in September 2003 and living with her in October 2004. He said in his affidavit that GA lived with the mother for the majority of the time from September 2003 until February 2004, seeing his father every weekend and sometimes for one night during the week. Mr RS said that from February 2004 GA spent one night each week with the father as well as alternate weekends from Saturday to Sunday, three nights each fortnight. However, Mr RS also said he was working in Victoria and Tasmania during approximately the first four months of that year so would not have been with the mother during the period deposed to. His evidence was inconsistent with the evidence of the mother.
The father deposed to GA spending every Saturday to Tuesday morning with him from the date of separation. He said from about July 2002 GA started living with him 4-5 days and nights each week. He said from mid 2003 GA lived with him, his mother and his sisters AA and EA for 9 nights each fortnight. He said from mid 2003, GA would spend from Thursday until Saturday with the mother one week and from Thursday until Sunday the following week. He concluded in paragraph 10 of his affidavit that this meant GA spent 3 nights each fortnight with the mother. This was inconsistent with his own evidence. The father’s sister CA deposed to the fact that she cared for GA from within 2 weeks of his birth in October 1999 every Monday to Friday during the day for 3-4 months. She said GA spent more time with the father than with the mother during this period. She said in the last year, the mother has only had the care of GA approximately once or twice a fortnight. Her evidence was inconsistent with the father’s evidence in relation to both periods.
Given the significant difference in the parties’ positions on this issue, it was not possible in these proceedings for me to make findings as to the amount of time GA has spent with each of his parents since the parties separated. I therefore make no findings as to a status quo. I am satisfied however, that GA has spent substantial amounts of time with each of his parents from the time they separated until
31 December 2004.
In her affidavit filed 5 January the mother deposed to the arrangements being less than satisfactory since mid 2004. She said she would telephone to find GA being cared for by other members of the father’s family. She said she was concerned GA had to be cared for by the father’s sisters and in particular by his frail 82 year old grandmother due to the father’s work commitments. The mother said she discussed her concerns with the father, offering to care for GA herself to avoid the father having to involve members of his family in GA’s care. However, the arrangements remained much the same though communication between the parties became tense. On 30 November 2004 the mother caused the police to issue a complaint against the father for apprehended violence which led to an interim order being made on 3 December 2004. The complaint states [Ex R3] that the mother complained of an incident on 29 November 2004 when the father swore at her in front of GA in relation to a push bike she had allegedly taken from his home for GA. She complained of previous incidents of verbal abuse by the father.
The mother said in her affidavit that GA went to his father’s at 4.30 p.m. on 31 December 2004 as arranged. The mother called to speak to GA that evening and despite a number of calls, was unable to locate his whereabouts. She was unable to contact EA, one of the father’s sisters who she was told might be caring for GA. The mother located GA on the following morning at about 11a.m. when she heard him crying. She spoke to him and according to her evidence GA said:
“Mummy, please come and pick me up, papy is working”
The mother and her partner Mr RS then went to the father’s home but the father’s sister AA who was living with the father at the time, would not let the mother in. The mother said she could hear GA crying “Mummy, Mummy” through the door. The mother did not see GA but by about 1.30 p.m. another of the father’s sisters, EA, the father and the police were all involved. It is common ground that the father told the police he would return GA to the mother at 8.15a.m. on Tuesday 4 January. It is common ground that the father did bring GA to the mother at 8.15 a.m. on 4 January but that he did not allow him to stay with the mother. The mother said the father wanted her to sign something before handing GA over to her. The father said there were a number of reasons for his decision that morning, one of which was that the mother would not write down when the father could collect GA again. The mother attended a meeting with the father and his sister Cecilia that evening when the mother said Cecilia accused her of being an uncaring mother, but she was unsuccessful in negotiating GA’s return to her.
In her affidavit filed 10 January 2005 the mother deposed to incidents of abuse and violence by the father towards her in 2000, 2002, in February 2003 and November 2004. She said she took no action in relation to his behaviour until November 2004. The incidents in 2000 and 2003 allegedly caused her physical injury and in 2003 the incident occurred in front of GA. The mother deposed to the father smoking marihuana and using cocaine. The father has not conceded the truth of these allegations, with the exception of swearing at the mother on
29 November 2004. He said he consented to the interim apprehended violence order because he was unrepresented. The mother said the father was represented. I can make no findings about any of these allegations in these proceedings as the evidence is untested.
The mother said GA should be returned to her care for a number of reasons: the agreement between the parties was for GA to be returned on the morning of 4 January; she has a close and loving relationship with GA and he would be missing her; she is the parent who can prepare GA for school and help him with reading and writing; the father’s mother and sister with whom he lives do not speak or understand English well; the father delegates GA’s care to other members of his family and GA does not have a good routine in his father’s care; GA will not be satisfactorily supervised after school; she is available after school to care for GA; the father’s family have a poor relationship with her, denigrate her and her partner in front of GA and will not positively encourage GA’s relationship with her.
The mother’s partner Mr RS deposed to having a close relationship with GA. He said GA has spent time with his large family and enjoys their company. He said he and GA play games together, go on outings together with the mother and sometimes with a friend for GA. He has bought GA a Mexican walking fish and aquarium which is kept in GA’s room at the mother’s home. Mr RS deposed to observing considerable hostility between the father’s family and the mother and gave several examples, which if accurate, are of concern. He deposed to an incident on 2 December 2004 when the mother collected GA from the home of the father’s sister EA. GA took a phone call from his father and started to cry. He said to his mother:
Papi told me that if I go with you he will be angry.
He deposed to the incident of 4 January 2005 when GA was in the care with his father waiting to see his mother. He observed GA trying to get out of the car and the father stopping him.
Mr RS has observed a positive, caring and loving relationship between the mother and GA and the mother encouraging GA to enjoy his time with his father. He said he and the mother plan to remain together in the long term.
The father deposed to the arrangements he presently has in place for GA. Until recently the father lived with his mother and two of his sisters, but one has recently married and left. When with his father, GA therefore lives with his paternal grandmother and his aunt. He has his own room and facilities appropriate for him. The father said GA has 10 cousins living nearby with whom he spends a lot of time. The father said he and GA engage in different activities including sport, music and dancing.
The father did not dispute that the parties had agreed to him returning GA to the mother on the morning of 4 January 2005. In summary he gave evidence as to his concerns as follows:
a)The mother would not agree to a time for him to collect GA after 4 January.
b)The mother and GA had made remarks which suggested to him that the mother was planning to abduct GA. I deal with this issue in further detail shortly.
c)The mother has suffered from depression and is unstable. In response, the mother said she had a period of depression after GA’s birth and was prescribed anti depressant medication for about 3 months. She said she had symptoms of depression again in early February 2004 when she was struggling financially and trying to finish her Masters Thesis. She temporarily stopped working as a result and took anti-depressant medication for a few months. She said she was affected by the father and his family’s denigration of her as a mother. She said she ceased taking the medication in July 2004 as she was much better.
d)The mother’s partner has hit GA. This was denied by the mother’s partner in his Affidavit and by the mother.
e)The mother does not have a current licence and has been convicted of driving offences. In response the mother has admitted to driving offences and to being disqualified from driving until December 2007, though her convictions are subject to appeal.
f)The mother has contacted him by phone, despite the apprehended violence order which prohibits the father having contact with her.
In submissions, the father’s solicitor identified the father’s fear of the mother taking GA away as his main reason for not returning GA to his mother and for now seeking an order that future contact be supervised. He referred to a remark by GA to him on 1 January 2005:
Mummy wants to take me to a home far away from here, from you. I don’t want to be away from you; I don’t want Mummy to take me away from you.
The father said in about 2001 he had signed an application for an Italian passport for GA. He did not know whether or not the mother held such a passport. He said the mother’s parents had died and she did not have family in Australia.
The father said the mother had said to him 3 months ago that her partner was planning to move to Tasmania. In December 2004 the mother said to him:
“I can’t get a job in Sydney; I have an offer in the Northern Territory; I will leave GA here. I can’t drive; I can’t do anything here.”
The father’s sister referred in her affidavit to a statement made by GA to her daughter SA on 4 January 2005 when GA is alleged to have said:
“Mummy’s selling all the stuff at home.”
The father did not refer to this incident in his own affidavit and as the conversation took place after the father’s decision not to return GA. This conversation cannot be relevant to his decision of the morning of 4 January.
The mother consented to orders to place GA on the Watch List and to an order that she be prohibited from removing GA from the Sydney metropolitan area. The father’s solicitor submitted it was the father’s view that the mother would ignore any orders made by this Court in relation to any restrictions on GA’s movement from Sydney, as the mother had little respect for the law. The father based his view on the fact that the mother had driven whilst disqualified from driving in 2004 and had telephoned him twice despite the existence of an apprehended violence order against him.
The mother deposed to having no intention of relocating with GA from the Sydney metropolitan area. She denied ever saying she intended to take GA away. She denied having an Italian passport for GA or giving the father an application for his signature for such a passport. She annexed a letter from the Italian Consulate dated
12 January 2005 certifying that no Italian passport has ever been issued in favour of GA. She denied saying her partner intended moving to Tasmania. Mr RS deposed to his intention to remain in Sydney long term and to having no intention of relocating elsewhere.
I am not persuaded the father was justified in his decision to deny GA contact with his mother on 4 January 2005 on the basis of his fear of the mother leaving the jurisdiction or New South Wales. But in any event, the mother agreed to orders to prevent her from doing so. This was not enough reassurance for the father. Whilst I accept that the mother’s conviction under the Motor Traffic Act is a serious matter, I am not persuaded that her actions justify a conclusion that she will leave the jurisdiction despite any orders of this Court. There is no evidence before me of the mother denying the father contact at any time since the parties separated. In fact the evidence suggests the contrary. The mother acknowledged the importance of the relationship between GA and his father.
There is evidence of considerable conflict between the parties and the father’s family in front of GA which is of concern. GA appears to be caught in the cross fire between his parents and the father’s extended family which puts him in a most unenviable position. Both parties must take responsibility for ensuring this situation is not continued for GA’s sake.
I have considered the father’s other reasons for not returning GA to the mother and for his view that any contact should be supervised. In relation to the mother’s health, there is no evidence before me to satisfy me the mother’s periods of depression have affected her ability to parent GA. I note the mother has been caring for GA, without objection from the father during both her periods of depression.
I make no findings in relation to the allegations against Mr RS but note the father has raised no objection before now to the mother having GA’s care while living with Mr RS.
I am very concerned about the high level of conflict between the parties that this child has witnessed and the suffering he must have experienced as a result. I have made mutual orders to prohibit both parties from allowing any denigration of the other party or that party’s family in GA’s hearing. It may be helpful, although I have made no order at this stage, for both parties to attend a post separation parenting course.
I have made an order that GA be returned to the mother this evening and that the parties share GA’s care pending the interim residence issue being determined.
Schooling
The parties have been unable to agree on GA’s schooling due to commence at the end of this month. GA is five years old and this will be his first year at school. The father sought an order that the mother facilitate GA’s attendance at Christ the King School at North Rocks. The mother in her affidavit filed 13 January 2005 asked the court to support GA’s attendance at St Patrick’s Catholic School in Parramatta. Both schools are primary Catholic schools with a similar fee structure.
I must evaluate the competing proposals for GA’s schooling by considering the factors in Section 68F(2) as far as they are relevant. The factors of key relevance here are (b) (d) (e) (f) (h) and (l).
It is common ground that the parties agreed GA would attend Christ the King School at North Rocks in July 2004. The Full Court in Re G: [2000] FamCA 462 held that a prior agreement between the parties does not restrict the Court’s jurisdiction and does not create a presumption which forecloses the inquiry as to what is in the best interests of the child at the time a decision is sought. Prior agreements in relation to schooling and other parenting matters are a consideration, but only that, which should be taken into account. Both parties signed the Acceptance of Offer of Placement in Kindergarten 2005 on 6 July 2004. [Exhibit R1]. It is common ground that the father attended the information night at that school on 19 October 2004 and that the mother attended the school fete on 29 October 2004. The parents were invited to both functions by letter dated 30 June 2004 [Ex R2]. The fact that the mother said she never received a copy of the letter but whether or not she did receive the letter is not material to the decision I am asked to make. I have taken the parents’ agreement in July 2004 into account in reaching my decision.
The mother did not raise the issue of GA’s schooling in her affidavits filed 5 January or 10 January 2005. She did not seek an order in her urgent application filed 5 January 2005 in relation to GA’s schooling. She raised the issue for the first time in her affidavit filed 13 January 2005 in response to the order sought by the father. The mother deposed to agreeing to Christ the King School at North Rocks on the basis of intimidation by the father in July 2004. However, in the same affidavit she deposed to ceasing anti depressant medication in July 2004 and to feeling much better at that time. I am not satisfied intimidation by the father in July 2004 was her reason for changing her mind about GA’s schooling.
The mother deposed to discussing changing GA’s enrolment to St Patrick’s Catholic School at Parramatta with the father in or about November 2004. She said to the father that St Patrick’s is only five minutes walk from her home. She said it would work best for GA because she had changed her working hours to accommodate his school hours. I do not know when the mother made those arrangements in relation to her employment. According to the mother, the father protested. According to the father, no such conversation took place and he knew nothing of the mother’s changed plans for GA’s schooling until 4 January 2005. On the mother’s evidence, in the face of the father’s objection, the mother completed an application for GA’s enrolment at St Patrick’s and attended an interview at the school on
13 December 2004. She said she told the father she had taken this action and he objected. He again denied any conversation about the issue. The mother said in her affidavit that GA would be better off at St Patrick’s because his friends would be nearby and she would be able to participate in his day to day school life.
There is no evidence before me in relation to the relative merits of the two schools. The issue is location.
The mother deposed to having her licence suspended for 12 months in or about mid 2004 and to being ordered to attend a Traffic Offenders Program for 2 months. In or about December 2004 the mother was disqualified from driving until December 2007 as a result of driving whilst disqualified.
The mother has been living at Parramatta for two years and consented to GA’s attendance at North Rocks school while living in Parramatta.
I am satisfied the mother must have considered the geographical distance between her home and the school in reaching her decision at that time. In her affidavit filed 5 January 2005 the mother deposed to discussions with the father after mid-2004 about the need to settle GA’s living arrangements before he settled into school. The mother did not raise at that time her wish to change the location of GA’s school.
The mother’s solicitor submitted that circumstances have now changed. The mother has lost her driving licence until December 2007 unless her appeal is successful. It will therefore be difficult for her to deliver and collect GA from the North Rocks school and manage her employment. I note however that the mother had lost her licence for
12 months before she signed the enrolment form for the North Rocks School and must have anticipated taking GA to school and collecting him without the convenience of a car. I accept there is a difference between a 12 month suspension and a 3 year suspension but I nevertheless take this factor into account.
I am satisfied the mother’s decision to change the location of GA’s school is primarily based on the difficulties she will have transporting him to and from school. I am satisfied this has been a decision she has made very recently. I am satisfied the mother was in agreement about GA’s schooling until at least late 2004. I am satisfied the mother was not so concerned about his schooling as to make an application to the Court.
This case poses particular difficulties because a decision has not yet been made as to GA’s residence arrangements, and the matter is not listed for final hearing until June 2005. Residence however, does not determine the question of schooling. The Full Court in Re G: [2000] FamCA 462 approved the words of the High Court in AMS v AIF (1999) FLC 92-852:
“although there is no legal presumption in favour of the residence parent [in relation to the choice of school a child attends] and correspondingly no hurdle or onus faced by the other parent, that is not to say that the reality of the children residing predominantly with one parent has no relevance.”
As it is not yet decided where GA will live predominantly, this is not a matter I can take into account. GA will be living in a shared parenting arrangement when school starts. If he attends St Patrick’s the mother said she will take him the 5 minutes to and from school while he is in her care and will be available to care for him before and after school. If he attends Christ the King School, the mother will still be available to care for him before and after school but will have to make arrangements to travel by other means or make arrangements for another person to deliver and collect GA. It was submitted Mr RS may be of some assistance in the mornings but would not be available in the afternoons and sometimes he may be required to work away from Sydney. Another parent at the school might be in a position to assist but there was no evidence before me in relation to other transporting options. The mother’s solicitor submitted the mother should not be put under the kind of pressure travel would impose as it may affect her ability to parent and have a negative impact on the happiness of GA. There is little doubt that the mother’s convenience would best be served by an order permitting GA to attend St Patrick’s at Parramatta, and that when GA is in the mother’s care it would be a happier situation for GA himself to be at St Patrick’s. Conversely however, the father’s convenience is likely to best be served by an order that GA attend at North Rocks and it is likely to be a happier situation for GA to be at North Rocks when in his father’s care. GA also has extended family and cousins in the North Rocks area.
If at St Patrick’s school, the father would have to make arrangements for GA to be delivered and collected during times GA is in his care. If at North Rocks, GA will be closer to the father’s home and the father’s extended family and the father will have the assistance of his sisters. The father works until 5 p.m. on the school days he will be with him so I will assume that GA will be in the care of one of his sisters until he returns from work. The orders I have made provide for GA to be with his mother on the days the father works late.
There are no compelling reasons to persuade me to change the arrangements for GA’s schooling which have been in place since the middle of last year. I have decided that despite the practical difficulties faced by the mother in relation to transport; GA will commence his schooling at Christ the King School at North Rocks.
I am satisfied that the orders I have made will be in GA’s best interests in the short term.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Sexton FM
Associate: Collette McFawn
Date: 17 January 2005
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