Minett and Beene

[2018] FCCA 3516

FEDERAL CIRCUIT COURT OF AUSTRALIA

MINETT & BEENE [2018] FCCA 3516

Catchwords:
FAMILY LAW – Final parenting proceedings – child aged five years of age due to commence primary school at start of 2019 academic year – parents in dispute as to which government funded school child should attend – parents have previously agreed that each should be conferred with parental responsibility equally with other parent – parties have agree on an equal time parenting regime – finally balanced decision – each party has valid reasons her position should be preferred – section 6OCC factors – best interests.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CC, 64B, 69ZN

Applicant: MS MINETT

Respondent: MS BEENE

File Number: ADC 4285 of 2017

Judgment of: Judge Brown

Hearing date: 19 September 2018

Date of Last Submission: 19 September 2018

Delivered at: Adelaide

Delivered on: 19 September 2018

REPRESENTATION

Counsel for the Applicant: Ms Read

Solicitors for the Applicant: Adelta Legal

Counsel for the Respondent: Ms Dickson

Solicitors for the Respondent: Tindall Gask Bentley Lawyers

ORDERS

1. That the parties do all things necessary to enrol their child, [X], born …2013 at the School 1 Primary School for the commencement of the academic year in 2019. 

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4285 of 2017

MS MINETT

Applicant

And

MS BEENE

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally immediately following the interim hearing concerned.  Given the importance of the issue to the parties concerned, it is appropriate that the reasons be transcribed and provided to each of the parties concerned.

2. Ms Minett and Ms Beene, it falls to me to make a decision that I really would prefer not to have to make.  It is my view that it is preferable for families and parents that people in my position intrude as little as possible into the details of how individuals choose to bring up their children. 

3. However, we live in a well-ordered society.  It is governed by what lawyers call the rule of law and what that means, essentially, is that when citizens, including parents, disagree about all manner of things, there is a process to resolve their differences, which is independent and hopefully objective and rational and once the decision is made, it is final and binding on the individuals concerned.

4. There are some countries in the world, of which I am sure you are aware, where rules of law do not apply and, in those countries, sometimes stronger and more powerful individuals take advantage of weaker and less powerful individuals and that leads to a chaotic and unfair society.  We do not live in that kind of country.  We live in a country where we take pride in the fact that everyone is entitled to a fair go and to be heard. 

5. So I hope you each accept that I have listened carefully to each of your cases and weighed them up.  Each of you have engaged extremely competent counsel, who has eloquently put forward all the salient factors in your respective cases. 

6. From my perspective, I have carefully read the affidavit material and I hope I have given it proper consideration.  The case is a difficult one because it is so delicately balanced.  There is no obvious correct answer to the dispute arising between the two of you.  Each of you has valid and rational reasons for advocating the position which you do.

7. By way of background, you are the parents of [X], who was born on …2013.  Accordingly, [X] will be five in two months’ time and as a consequence of that, as with the vast majority of five year olds in this country, she is due to start primary school at the start of 2019. 

8. You have been separated from one another for a reasonably significant period of time now.  As a consequence of that separation, in October 2017, proceedings were commenced in this Court before my colleague, Judge Mead, in respect of both the settlement of property issues between you and arrangements for [X]’s care.

9. I accept that those proceedings are likely to have been challenging and difficult for each of you.  How could it be otherwise given that there are few life events more challenging to individuals, in our society, than dealing with the consequences of relationship breakdown, particularly when a child is involved, as is the situation in your case. 

10. It is, of course, as Ms Dickson has pointed out, to your mutual great credit that you have been able to resolve the vast majority of the issues in dispute between you and you seem to have done that largely without judicial involvement.  I, of course, cannot be completely sure about that given I have only recently become involved in the case due to the indisposition of Judge Mead.

11. Prior to the making of a comprehensive set of orders, you had the assistance of a report from an expert, Ms A, who prepared a family report, which has no doubt been of great assistance to each of you to reach a consensual agreement.  That report has been provided to me and it is dated 28 February 2018.  Again I have read that report carefully.

12. This report provided the background to you being able to enter into extensive consent orders, in respect of [X]’s care, in May of this year. Significantly, you agreed that you would have equal shared parental responsibility for [X].  I will return to what is meant by that concept in a moment. 

13. In addition, you agreed on a regime whereby your much loved child would spend equal periods of time in each of your respective cares.  The obvious implication being that one parent would not be regarded as being superior to the other in respect of decision making for [X] or how much time she spent with each.

14. Shared parenting is a controversial topic amongst many sectors of our society.  I am not going to enter into that controversy today because I have no desire to lose any more of my hair.  My obligation is to apply the applicable legal provisions contained in the Family Law Act and ensure any order which I make in respect of a child is in the best interests of that child.

15. But it is, I think, generally agreed that shared care is the most challenging manner in which to parent a child because you have to work closely with a person with whom you may not always have seen eye to eye in the past because axiomatically you have separated from that person, which is necessarily not the ideal environment in which to cooperatively parent a child. 

16. So it is a tough course to choose but it is also potentially very rewarding and, from a young child’s perspective, it is seen very often as being absolutely equitable – for both the parents and the child concerned who will perhaps perceive I spend the same amount of time with both my parents, what could be fairer than that – but it is difficult, most usually because of tensions arising in the relationship between the parents concerned.  One issue remains in dispute between you.  I have already alluded to it, which school [X] should attend, when she starts primary school. 

17. Following the parties’ separation, the applicant, Ms Minett, remained living in the parties’ former family home in Suburb A.  Ms Beene, as I understand it, moved in with her parents in the difficult circumstances following the separation but more recently, again, she is renting accommodation for herself in Suburb B. 

18. It is Ms Minett’s preference for [X] to attend the School 1 Primary School, which is relatively proximate to the former family home and I have been provided with a map, which establishes where the important locations are relative to one another in the …suburbs of Adelaide. 

19. On the other hand, it is Ms Beene’s preference that [X] attend School 2 Primary School, which is close to her home.  By way of background, Ms Minett is a medical professional and Ms Beene works in the area of medical professional, so they are both people who are intelligent people and have a shared medical background to some degree.

20. As I understand it, the issue is not simply, or really at all about physical convenience.  It is a more nuanced and difficult issue than that.  As with many disputes, it is probably about values and powerful subjective feelings.  For obvious reasons, these feelings are very important to the individuals concerned and difficult to compromise.  Hence it falls to me to determine.

21. From Ms Minett’s point of view, the preference of School 1 is that it will provide [X] with a sense of continuity.  She is currently going to preschool in Suburb A where no doubt she has made some friends.  In those circumstances, it is asserted that she will move from her preschool to the proposed primary school with a cohort of friends and companions, which will provide her with emotional support as she transitions to big school.

22. Ms Minett has purchased the interest of Ms Beene in the Suburb A property.  Again, from her perspective, this is likely to provide a sense of continuity for [X].  It is Ms Minett’s evidence that she is settled in Suburb A and does not intend to move and, in addition, in the past she has her own personal connections with the School 1 Primary School, which she attended as a child. 

23. As a consequence of her employment as a medical professional, she enjoys flexible employment, which means that she can be available to drop off [X] at the School 1 Primary School but it will be more challenging for her if School 2 is used and it may result in her having to use OSHC, or Out of School Hours Care, which may incur what is likely to be a modest fee.  Ms A alluded to the issue of schooling in her family report of March 2018 and she said this:

    “With respect to [X]’s future schooling enrolment, the consultant was cautious on promoting a strong support for either parties’ position, given the consultant was not an expert on the government education system or overly enlightened about either school proposed by the parties.”

24. That being said, it was the opinion of the consultant that unless the Court was willing to accept that one school was fundamentally better than the other at meeting [X]’s personal needs, that it appeared reasonable to support Ms Minett’s proposal to enrol [X] at School 1 Primary School, given her claim that it was in close proximity to her home; it was a school that other members of her family had a connection to; and Ms Beene’s future place of residence was less certain than that of Ms Minett.

25. Ms Beene is renting in Suburb C and I am not of course critical of her for that.  It is the position, I think, that their separation was a financial misfortune for each of them and they are now struggling to re-establish themselves financially. 

26. Although it is not completely clear what Ms Minett’s future accommodation plans are, it seems to be the position that she will use the funds, which she has received to purchase some form of accommodation for herself, in the foreseeable future and that is likely to be in the Suburb C area, if she is successful in her application.

27. As I said earlier, her case is not one which turns on issues of practicality per se.  Rather, it is her position that Suburb C is just the better school.  She has visited both of them and undergone the orientation program offered by each.  It is her case that her perception is based on what she has been told about each of the schools. 

28. School 1 is a much bigger school, which has 440 students.  School 2 only has 186.  In those circumstances, Ms Beene submits that classes will be smaller at School 2 and therefore [X] will get more attention, which is likely to be beneficial for her educational development. 

29. In addition, in July 2016, School 2 received a $1 million grant to create a new STEM facility on its campus. Of course, STEM skills are a very relevant and contemporary topic, particularly as we are frequently all told that we are on the cusp of some massive technological changes in the way we live our lives, which will involve science and technology, the use of computers and artificial intelligence. 

30. So for obvious reasons, parents want their children to have access to the skills of the future, so they can be well equipped for it.  From Ms Beene’s perspective, exposure to such a state of the art STEM facility will be a very positive thing for [X].  Of course, needless to say, I have not visited the facility and I do not know when it will be finished or what specifically it will comprise.

31. [X] is also described by Ms Beene as being an artistic child and School 2 apparently has a large playground and a garden where the children are able to grow their own food and harvest it.  These are obviously good things which will are likely to be appealing to any child.

32. The school also has other things which appeal to Ms Beene personally.  These things include a brass band.  It also teaches AUSLAN.  It has what is described as a comprehensive anti-bullying policy, including a practice where if a student feels lonely, he or she can have a buddy bench to provide them with support.  Again these are all positive things.  They also have a flavour of contemporaneity about them.

33. So as I say, the case is really one about the different aspirations and different values that each of the parties hold, which are translated to the school issue.  Continuity and stability as qualities appeal to Ms Minett and the attraction of the school, which she attended and which she knows well.  There is perhaps also something a little old-fashioned in respect of School 1; whereas School 2 appears to be more empathetic and perhaps more progressive in its attitudes, which are attributes which appeal to Ms Beene.  One school’s ethos is not necessarily superior to that of the other.

34. Those differences in value are likely to be reflected in the different personalities and aspirations of the parties themselves.  People in my position have to be very careful about saying one person’s set of values is preferable to that of the other’s.  Everyone’s values are idiosyncratic and reflect that person’s experience of life, which subjectively are of equal value.

35. It is not my role, unless it absolutely cannot be avoided, to judge people’s preferences, their aspirations, or even determine what sort of people they are and rank them against one another in some way.  That is none of my business.  I also have to be careful to avoid the influence of my own unconscious biases, reflecting my own life experience and background, unduly affecting the decisions I make.

36. As somebody said, one of the lawyers, I cannot remember if it was Ms Read or Ms Dickson – however, I can tell each of you that your respective lawyers have said everything that can be said about the matter in issue – that every attempt has been made to resolve the issue consensually.  I accept that this is so, which is reflective of how difficult and entrenched the controversy is.

37. But, from my perspective, the situation this entrenched controversy creates places me in an invidious position because whatever decision I ultimately make, it will inevitably create a sense that somebody has triumphed over the other and more significantly a feeling that the other parent’s aspirations and values are considered to be superior to those of the other parent.  This in turn will create a sense that one parent is the loser and she will feel hard done by and prejudiced against.

38. In many contexts, in the legal world, that would be fine.  If you sue your plumber because your plumber has done a bad job in fixing your pipes and you sue your plumber in the Magistrates Court for bad work, after that case is over, win, lose, or whatever, you need never see the plumber again.  You can, within reason, badmouth the plumber to all your friends and acquaintances.  You can say, “Don’t go and see Bill’s Plumbing.  He’s hopeless.”  

39. But in the family law context, in a case involving a child, the parties concerned are likely to be seeing each other the next day.  Certainly they are going to be working with one another, for possibly a very long time.  They cannot withdraw from one another indefinitely. 

40. As such, the court must be careful about the consequences of its decision for the on-going relationship between the parents concerned.  In this context, the consequence of the lose/win dynamic may be significant and in making a necessary decision, the court may unwittingly do damage to the relationship between the parents concerned.

41. In section 69ZN of the Family Law Act, the court is required to give effect to a number of principles, in proceedings concerning children.  These principles include the following:

    ·proceedings are to be conducted in a way the will promote cooperative and child-focused parenting.

42. Accordingly, whenever I can, I am to encourage you to have a cooperative parenting relationship with one another after these proceedings are concluded.  As such, I am to do the utmost I can not to create or exacerbate conflict between you. 

43. The irony being that, in resolving this dispute, one way or the other, that is unwittingly what I will do,  by creating a sense that one of you has been successful and the other not.  That is not my intention.  I also bear in mind the extremely artificial way in which I have been asked to resolve this dispute.  I have been asked to do it, as lawyers say, on the papers.

44. In this context, as each of you know, I have not heard you say a single thing, I think, either of you.  I do not really know what sort of people you are.  I look at you, but you have not said anything to me because this case has been conducted in very artificial circumstances in that the lawyers have done the talking and I have read about the case, in your respective affidavits.

45. I suppose when it is all boiled down, I just have to make a decision, so each of you can move on and hope that, in so doing, it does not do too much damage.  However, I cannot just pick one case over the other so that a decision is made and closure is provided in this way.  Rather, I have to apply the law to the resolution of the dispute and apply the principles contained in the Family Law Act.

46. As you are each aware, Part VII of the Family Law Act is the part of the Act which deals with the care and parenting of children.  I am authorised to make what is called a parenting order, and I will just, if you will bear with me, turn up the Act and tell you what a parenting order is. 

47. It is an order dealing with any matter in subsection 64B(2) of the Act.  It can deal with:

    ·where a child is to live;

    ·the time a child is to spend with parents or another person;

    ·the allocation of parental responsibility,;

    ·the communication a child is to have with another person or persons;

    ·maintenance of the child;

    ·steps to be taken before an application is made to a Court for a variation of an order;

    ·the process for resolving disputes, and significantly,

    ·any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child. 

48. So where a child goes to school can be subject to a parenting order. Accordingly I am satisfied that I have jurisdiction to determine the matter. I am not, however permitted to do that on a whim. Rather, I have to apply some clearly delineated considerations, which are underpinned by a number of principles and objects which are set out in section 60B.

49. They are mostly axiomatic, I think.  They are as follows:

    ·The protection of children coming to physical or psychological harm;

    ·The consideration of the benefits, for a child, of having both their parents involved meaningfully in the child’s life; and in a case such as the present one

    ·The need to ensure that children receive adequate and proper parenting to help them achieve their full potential.

50. I would guess that all parents aspire to their child being able to reach his/her full potential.  I know very little about [X], particularly in terms of what her potential is and what are her special talents and abilities. I hope I was not being fatuous earlier when I mentioned Mr Rumsfeld who was, I think, Secretary of State under President Bush. 

1. Anyway, he talked about known unknowns, which is a good way to think about [X]’s talents and abilities. I know that she has talents and abilities, but what precisely they are is as yet unknown.  All I know about [X] is that, like all children of her age, she is a bundle of possibilities.  She may be an artist.  She may be a scientist or a teacher or a nurse.  She may a politician or a doctor or something else equally worthwhile.  She may even become something no-one here knows about because it has not been invented yet.

2. And for all I know, there may be some wonderful teacher, at one or other of these schools who will unlock something in [X] and enable her special talents to crystallise.  Education is a Latin word.  It is derived from the word educere, which means to lead out.  Education is meant to lead out a child’s potential, to draw it out.  It is related to the word ductile, which is to stretch. 

3. I am sure you both share the ethos that you want [X] to receive and achieve her full potential. In section 60B(2) are some principles which underpin the objects of the Act. I remind myself of the following:

   ·that parents jointly share duties and responsibilities concerning the care, welfare and development of their child; and 

   ·that parents ideally should agree about how their child or children are to be parented. 

4. I accept that, as parents, you both wish to be as fully involved as possible in parenting [X].  In this context, you agreed on a whole raft of orders about her on 9 May.  Specifically you agreed that you would have equal shared parental responsibility for her.

5. What that means is that you are jointly conferred with responsibility for making major long-term decisions for [X].  Major long-term decisions is a concept defined in the Act.  It means decisions which relate to her education, her religious and cultural upbringing; issues relating to her health; her name; and any changes to her living arrangements, which may make it more difficult for the child to spend time with one or other of you. 

6. Under the relevant provisions, you have an onus to try and resolve these major long-term issues wherever possible consensually.  I concede that the decision concerning her school is a very difficult one.  In an ideal world, you would have the same aspirations and values and the decision could be made by agreement, as many other decisions have been made about [X].

7. But we do not live in an ideal world.  The decision, which you ask me to make is a binary choice, what mathematicians call a zero sum game.  I can only decide it is School 1 or School 2 – one or the other.  There is no third, mutually acceptable choice available. 

8. Accordingly, in making a decision, I will disappoint one parent, which may have implications for your on-going joint parenting relationship.  Although, like most human beings, it is my natural inclination to try and keep everyone happy, if at all possible, that cannot be done in the present situation. 

9. The question of which school [X] is to attend, like all issues pertaining to children, is to be determined by reference to [X]’s best interests.  Whatever order is made, I have to be satisfied that it will be in her best interest as this is the paramount or most important consideration for the court. 

10. In determining that question, I have to look at a long list of matters in section 60CC of the Act. As you are probably aware, that section creates two categories of consideration: primary consideration and then additional considerations.

11. The primary considerations tie up with the objects and principles of the Act and there are two of them.  Firstly, the benefit of the child having a meaningful relationship with each of her parents, and secondly, the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.  Thankfully, this is not a case about neglect or abuse. 

12. A lot of the cases I deal with are about neglect or abuse.  They are about cases where, for all sorts of reasons, the parents concerned have very significant issues to deal with such as drug abuse or violence or some other grave problem.  Such considerations do not apply to you.  [X] is going to be loved, she is going to be well looked after, she is going to be cared for, she is going to do well and I have got to remember that big picture.  She is going to be okay because she has good parents.

13. I have also got to bear in mind that, as a consequence of what you have agreed, she is going to have a very meaningful level of relationship with each of you, because she is going to spend the same period of time in each of your respective homes.  So big picture – the primary considerations under the Act are satisfied, which is good. 

14. There are 14 additional considerations and it is really – I guess this is where we come into the niceties of the case and where any distinction, if it can be made between the two cases will be made.  However, I will level with you – this is a very finely balanced case, with no obvious right answer.  Frankly, I could decide the case each way.

15. I could do the same judgment with equal conviction and it could go each way.  It is a very line-ball decision.  It is not about private school versus government school – both are government schools.  It is not about the child living more with one parent and then so convenience will trump everything; it is an equal-time arrangement.  They are both, broadly, similar schools which are funded within the same system by the same government, both at the state and the Commonwealth level. The distinctions between the two schools are likely to be fairly fine and subjective in nature. 

16. So I come to the additional considerations and, as I say, there are 14 of them and I will go through them as they are relevant.  Any views expressed by the child – well, [X] is too little to be able to express a preference. 

17. The nature of the child’s relationship with each parent appears to be excellent or very good.  The child has a loving relationship with each parent, so this does not seem to be a determinative factor.

18. 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, spent time with the child to communicate with the child – well, that does not seem to be relevant either.  It cannot be said that neither of you are disinterested in playing any aspect of the parenting role in [X]’s life.

19. The extent to which each of the child’s parents has failed or fulfilled or failed to fulfil the parent’s obligation to maintain the child.  Again, no suggestion that either of you is not going to step up to the plate to make sure this child has a well-resourced and comfortable childhood. 

20. She will get everything she needs, to do whatever she wants to do.  If she decides she wants to be a painter, she will have a paintbox; if she decides she wants to be a ballet dancer, she will have ballet shoes; if she decides she wants to be a footballer, she will have a pair of football boots.  She will get whatever she requires.

21. And this next one is, from my perspective, is likely to be something of a game changer.  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 or any other child or other person.

22. Change: the transition to primary school is a major one.  Everyone agrees about that.  It is, perhaps, one of the first big milestone of the post-explosion of neurological development from nought to three – walking, crawling, talking and all of that. 

23. It is the transition – start of socialisation, dealing with other children – that has already started with the preschool – but it is a big one, going to big school and, no doubt, [X] is starting to talk about going to big school.  I do not know. 

24. So how to manage that change and, from my perspective, it is a significant thing for stability of a child facing a big change being part of a cohort going with children whose faces you know, whose names you know, rather than starting at another school.  So that is a factor which, I think, favours Ms Minett. 

25. The practical difficulty and expense of a child spending time with and communicating with a parent – well, there are some practical difficulties in this because – but they are – to a certain extent, implicit in having a shared care arrangement. 

26. The child has two homes; the child has two beds; the child has two of everything and the child has to pass between these two homes.  But the distance between the two is relatively manageable, so – and, as I say, I do not think either party approaches this case on, “I want my school because it is easier for me.”  It is a more nuanced decision than that. 

27. The capacity of each of the child’s parents and other parents that provide for the child’s needs, including emotional and intellectual needs – again, I think both of you get a tick for that.  In my assessment, you are both good parents, who will support [X] emotionally and intellectually.

28. The maturity, sex, lifestyle and background, including lifestyle, culture and traditions of the child and characteristics of the child that are relevant – well, I do not think one school is more culturally congruent with [X]’s background than the other.  She is likely to fit in culturally at each.

29. I was told that one school – the School 2 – is demographically, perhaps, more wealthy than the other, but that is an assertion about which I have received no evidence.  I have to consider the child’s Aboriginality – that is not relevant in this case.

30. I have to consider the attitudes that each party has demonstrated in regards to the responsibilities of being a parent and, in my estimation, you are both responsible parents who would never do anything to harm your child, the irony being that exposure, to a certain extent, to this process, which creates a winner and a loser is, to some extent, as I have observed already not overly helpful to your on-going co-parenting relationship.

31. But I hope you will be able to pick up the pieces once the decision is made and say c’est la vie, regardless of whether you are happy or otherwise because, big picture – I come back to the big picture – [X] is going to be a happy child;  she is going to be a well-parented child;  she is going to be okay so long as you do your best to keep the problems in your relationship, and the differences of opinion you will inevitably have and the disputes you will have inevitably have from her.  That is the only real dark cloud in this little girl’s life.

32. Family violence.  Well, as I have said, I do not know that this is a relevant consideration and, finally, whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings.  In my view that is unknowable in the context of the present matter.

33. As I have tried to demonstrate to each of you, I would really prefer not to have to make the decision in this case, given it is so closely balanced and relates to each of your personal values.  Sometimes, my function, as a judge, is simply to make a decision so that the individuals concerned can move on.  I try to make a rational decision and one which I think will be best for the child concerned.

34. But I am a human being.  Given my age, sex and background, I have my own values, which are likely to be different from each of you.  My values are not necessarily superior to anyone else’s.  I am frequently asked to make decisions about things, for children, which relate to personal preferences and values systems.

35. Things like holidaying overseas or whether children should have a mobile phone or how old they should be when they get an iPad.  For the people concerned, they do not know if I think Bali is the best place on the planet or whether I hate it or whether I have ever been there.  I might have an idiosyncratic view about mobile phones.  I might think that they all ought to be put in a bucket and drowned or they are the best thing to happen ever. 

36. Everyone has an opinion about such things and my opinion is not superior to anyone else’s.  I do not want me to decide whether a child has an iPad or not– life is hard enough as it is.  Screens have their role.  Screens – we will have different views about screens. 

37. What I do know is I do not want you to come back here to court, if it can possibly be avoided.  This is an unhappy place.  The process is expensive and time consuming.  It is also emotionally draining.  I want to get you out and through the process sooner rather than later.  But, at the end of the day, you are the individuals best placed to know if the case will return to court.

38. Anyway, having tried to think about everything and after trying to indicate to you as best I can that I have tried to balance up all the considerations and reminding you, again, that there is no right answer to the issue.  There is no right answer.  I have come to the conclusion that, on balance, because of continuity – more than anything else, which is the factor in the Act, which I consider most decisive in this finely balanced case, that it favours the child attending the School 2 Primary School – I am sorry, the School 1 Primary School.  Freudian slip.  School 1, which is the school most closely associated with the cohort of children with whom [X] has attended pre-school.

39. I am going for School 1 because of continuity.  Sadly one of the parties has to lose.  The system we have puts me in a position that I have to make decisions I do not really want to make because, at the end of the day, as Humphrey Bogart says at the end of Casablanca, “Maybe it don’t amount to a hill of beans.”  I do not know.  I do not know, because when it comes down, it is the human capital at schools that matters, and it is where the good teachers are, and I really do not know about that.

40. There may be a terrific teacher somewhere with whom [X] will be simpatico and who is going to enable [X] to do whatever she wants in life because she strikes a chord with her.  Where and who that teacher may be is something which is unknowable to me and indeed to each of you.

41. The important thing is that you go away from here with ability to move on, because you are like galley slaves in the manner in which you have elected to parent [X].  I am sure you have each seen those epic films, set in classical times, in which the Roman soldiers and generals are on the top deck of the trireme and the slaves are down below doing all the rowing, whilst a slavedriver walks about who whips the poor old slaves, who have to do all the rowing.  Now the slaves are chained together and have no choice but to row together.

42. So that is where the comparison comes in.  With parenting you are chained to somebody in the hard work of being a parent.  You cannot escape the other parent, particularly if you have agreed to shared care and I just think what is the point of trying to elbow the person you are metaphorically chained next to?  Rather it is better to try and work together. 

43. For all these reasons, the order of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:     20 December 2018