Moers & Sands - [2009] FMCAfam 1354

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MOERS & SANDS

[2009] FMCAfam 1354

FAMILY LAW – Child aged 7 – equal shared parental responsibility – high conflict between parents – injunction made in 2007 restraining child’s school being changed without the consent of both parents – child’s school enrolment changed unilaterally by mother – father seeks child be returned to previous school – mother asserts her actions were justifiable by reason of considerations to do with her personal safety – how to conduct proceedings in child focussed manner – whether issue can be determined at interim stage – best interests.

Family Law Act 1975, s.60CC

Moers & Sands [2007] FMCAfam 1067
Goode & Goode (2006) FLC93-286

Applicant:

MR MOERS

Respondent:

MS SANDS

File Number:

ADC2864 of 2007

Judgment of:

Brown FM

Hearing date:

2 December 2009

Date of Last Submission:

2 December 2009

Delivered at:

Adelaide

Delivered on:

18 December 2009

REPRESENTATION

Counsel for the Applicant:

Ms Hurley

Solicitors for the Applicant:

Clelands

Counsel for the Respondent:

Mr McGinn

Solicitors for the Respondent:

Scammell & Co

ORDERS

The parties do all things necessary to reinstate the enrolment of the child [Z] born [in] 2002 at the [S] School so that he attends the school from the first day of the academic year in 2010.
An injunction issue and each party be restrained from changing the enrolment of the child from the [S] School without the written consent of the other.
A copy of the reasons for judgment be provided to the principal of [S] School forthwith.
The question of costs arising from the proceedings be adjourned to a date to be advised to each of the parties.
The application filed 24 September 2009 and the response filed 26 November 2009 be dismissed otherwise than in respect of the issue of costs.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC2864 of 2007

MR MOERS

Applicant

And

MS SANDS

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Moers “the father” and Ms Sands “the mother” are the parents of [Z] aged seven.
The current dispute before the court concerns arrangements for [Z]’s primary school education. On 12 December 2007, I made the following order:
“Each party be restrained and an injunction issue restraining each of them from changing the school currently attended by the child without the written consent of the other.”[1]
[1] See order 14 of the orders of the court made 12 December 2007.
At the time of the order [Z] attended [S] School in [G], a suburb of Adelaide.
The order regarding [Z]’s schooling was made following contested final parenting proceedings between the parties.[2] In December of 2007, the issue of which school [Z] should attend was not ostensibly controversial between the parties.
[2] See Moers & Sands [2007] FMCAfam 1067
It is necessary to place the orders made in December 2007 into the context of the parties’ circumstances at the time. The father worked in Western Australia on a fly-in/fly-out basis, although his principle place of residence was Adelaide. This continues to be the case.
In these circumstances, Mr Moers wished the court to make orders which would ensure he was able to spend time with [Z] to coincide with his rostered time off from work. Basically, Mr Moers envisaged he would be in Adelaide one week in three.
Ms Sands’ position was that [Z] should live with each of his parents on a week about basis. Inevitably, such an outcome would have entailed Mr Moers ceasing his well remunerated employment in Western Australia and seeking alternatively employment in the Adelaide area. He did not wish to do so.
At the time the matter came on for final hearing, in December of 2007, the parties agreed that it was appropriate that they have equal shared parental responsibility for [Z]. It was implicit in the mother’s position that she accepted that the father had much to offer [Z] and he ([Z]) would benefit from having as meaningful a relationship with his father as was possible.
Ultimately, I concluded that I had no authority to compel the father to change his mode and place of employment. The mother was resentful at her perception that the father was, to use the vernacular “able to have his cake and eat it too”, in the sense that he could maintain his interstate employment and spend extensive periods of time with [Z].
In the judgment, I wrote as follows:
“Ms Sands is piqued that she has chosen to restrict her work hours in order to focus on [Z]’s best interest but Mr Moers has not. This decision, given the parties’ separation, means financial austerity for her. After having thought about giving up his work in Western Australia, Mr Moers has decided to continue on with it. I can understand why he would make this choice, which means financial security for him and indirectly provides some measure of security for [Z] and his mother. But I can also understand

Ms Sands’ resentment.
However the focus of this case is [Z]’s best interests. I have no authority to compel Mr Moers to give up his job or direct that he return to live predominantly in Adelaide. We live in an age where the work force is become increasingly deregulated and flexible. The old paradigm of one parent being a family’s breadwinner and working conventional Monday to Friday hours is becoming less common. Skilled workers now look for work far afield and their potential employers require them to work longer hours in exchange for generous remuneration. It is the mantra of this age that work and family commitments are out of kilter.
At the same time as the work force is changing, relationship breakdown is becoming more common. Courts, in shaping meaningful parental relationships for children, against the background of parental separation, should endeavour to fit child/parent time into the context of a parent’s work responsibilities. Children should not be penalised necessarily for the work schedules their parents choose to work, very often as a result of a desire for the financial betterment of their children.
In addition, it seems to me to be clear that it is intended from the legislation that meaning in parental relations should come not only from the extent of time a parent spends with a child but also its context. This seems to be the clear rationale for the presumption of equal shared parental responsibility and the definition of substantial and significant time in section 65DAA.
Accordingly, it is my view that in order for [Z] to have the most meaningful relationship with both his parents, it would be in his best interests to be able to spend as much time as possible with his father when he is at home in Adelaide. Such an arrangement will enable [Z] to have a sense that his father is engaged in all aspects of his life, both his school life and at weekends. From this engagement will come meaning for [Z]. This consideration militates in favour of the court giving favour to Mr Moers’ preferred outcome.”[3]
[3] Supra at paragraphs 98-102
At the time of the hearing in December of 2007, I was well aware that there was a significant level of conflict and hostility between the parties. At the time, I noted that it was ironical that the mother proposed an equal time arrangement for [Z] with the father, given her obvious antipathy for him.[4] At the time, it seemed to me that this proposal was not genuinely made, given that Ms Sands must have known that it would be unacceptable to Mr Moers.
[4] Supra at paragraph 119
Sadly, there has been no diminution in the difficulty surrounding this case and the hostility which has characterised the parties’ relationship with one another. The father has continued to work in Western Australia and to fly to Adelaide regularly to spend time with [Z]. It is my apprehension that Ms Sands remains deeply resentful of this outcome.
Since December of 2007, there have been five separate sets of contravention proceedings filed. In addition, there have been other applications relating to the interpretation and application of the orders which were made in December of 2007. I am told that there are other contravention proceedings in comtemplation. At this juncture, there seems no end in sight to the mutual acrimony arising between the parties and the litigation which it inspires.
In December of 2007, I wrote as follows:
“Ordinarily, a court such as this one, should refrain from making adverse comments about a parent, unless it is specifically necessary to do so. It does not help children if the relationships between their parents are inflamed by hurtful but gratuitous findings of fact.
Having said that, I do not doubt for a moment the love and affection each party holds for [Z]. They are both good and caring parents, who each wish to be as involved as much as possible in providing for [Z]. However the relationship between the two of them is disastrous and I am concerned that both have allowed their feelings for the other to cloud their judgment in respect of the best outcome for [Z]. This concern is more pronounced for me so far as the mother is concerned.
…
My impression of Ms Sands is that she is still deeply affected by the emotional consequences of the end of her relationship with

Mr Moers and remains very bitterly disposed towards him. In my view, at this stage, she has a propensity to create problems for the sake of creating them but particularly to cause difficulties for

Mr Moers.
I have no doubt that she has authored many text and telephone messages which have been directed towards Mr Moers and which are offensive and provocative in tone. I am also concerned that she has attempted to include [Z] in the dispute between the parties and engage him on her side of it.
I do not doubt that Mr Moers is not particularly well disposed towards Ms Sands. However his feelings for her are more resolved. He has no interest in any on-going vendetta. He appeared resigned to the current state of affairs and seemed to have no desire to escalate difficulties. I accept his evidence that his only current wish is to be able to formalise arrangements whereby he spends time with [Z]. Of the two parties, I consider him likely to be the more objectively reliable.”[5]
[5] Supra at paragraphs 51, 52, 56, 57 and 58
Since December of 2007, I have had other opportunities to observe

Ms Sands. I have had no reason to change my initial appraisal of her. I am gravely concerned that she has determined to make life as difficult as possible for Mr Moers and to do all that she can, both actively and passively, to frustrate the orders which were made in December of 2007 and which are not to her liking.
However, as I have pointed out in the past, Ms Sands did not choose to lodge an appeal in respect of my decision and resulting orders. However, attempts have been to refine the orders in the hope that there can be a more seamless application of them to the parties and [Z]’s circumstances.
Difficulties arose between the parties in the lead up to the Christmas period of 2008. The father was concerned that the mother would not deliver [Z] to him so that the child would spend time with him, during the festive period, as the orders of 2007 envisaged. As I recall, the mother was concerned at the prospect of [Z] being collected by his maternal grandmother. It being her position that [Z] was frightened of the lady concerned.
Ultimately, I directed that [Z] should be delivered to the court counselling service and that a family dispute resolution counsellor should oversee the collection of the child by Ms M.
The family consultant concerned, Mr Trevaskis reported back to the court as follows:
“On 17 December 2008 it was ordered that the child [Z] (6 years 11 months) be delivered the Child Care Section at 11am on 22 December 2008 by his mother. [Z] was duly delivered. Orders were made on 22 December that [Z] spend time immediately for the next two days with his father and paternal grandmother. The writer was asked to facilitate handover to Ms M, paternal grandmother.
Ms Sands presented at Child Care with her older son, wishing to farewell [Z]. She was advised and requested to keep her farewell as brief as possible, so as to minimise potential distress to [Z]. Ms Sands embraced [Z] and gave him numerous kisses and hugs, appearing to set the expectation for him to be distressed. It was not possible to hear her words, as she spoke very quietly directly into his ear. Initially [Z] did not appear distressed. However, the longer Ms Sands hugged and kissed him, the more tearful and distressed he became.
The writer quietly prompted Ms Sands to end her farewell. This prompt was not heeded. The writer reassured [Z] with words to the effect “You’ll be seeing mum in a couple of days …that’s the night Santa comes and I bet he’ll have presents for you.” [Z]’s crying lessened at that point. Ms Sands responded to the writer, in [Z]’s presence: “He won’t even get a chance to play with them because he’ll be off again”. Several times Ms Sands appeared to be about to leave. Each time, however, she resumed kissing and hugging [Z], and each time he began to cry again.
After Ms Sands had departed, the writer brought Ms M and her daughter into the room. As soon as [Z] saw Ms M he ran into her arms saying “I love you nanny” adding “It’s good to see you”, or words to that effect. [Z] cried in Ms M’ arms. She and her daughter were both very appropriately reassuring.
Within a minute or so Ms M answered a call from Mr Moers ([Z]’s father) on her mobile phone. She handed the phone to [Z], whose first words were “I love you dad”. Over the course of a brief phone conversation [Z] was heard to say several times “I love you dad”, as well as “I love you too”. He ended the brief call by saying “see you when you get home”.
[Z] left the section with his grandmother and aunt in a fairly calm state.”
This incident and Mr Trevaskis’ report of it heightened my concerns that the mother was capable of putting her emotional needs before those of [Z] and, as such, she was capable of intensifying the areas of dispute between her and Mr Moers, notwithstanding the emotional consequences of this for [Z].
Accordingly, the parenting relationship between the parties remains vexed and conflictual. What have been the emotional and psychological consequences of this state of affairs for [Z] is unclear to me. However, it would appear axiomatic that such a state of affairs can be far from an optimal one for fostering within him a sense of emotional security and contentment.

The current applications

The father commenced the current round of proceedings on 24 September 2009. He seeks the following orders:
“1.That this application be listed as a matter of urgency before Federal Magistrate Brown.
2That paragraph 14 of the order made on 12 December 2007 (amended 12 May 2007) by Federal Magistrate Brown be enforced insofar as the respondent mother be restrained from removing the child from [S] School without the written consent of the applicant father.
3.That the respondent mother pay the applicant father’s costs of and incidental to this application.”
Due to my own personal commitments, particularly the fact that I was on leave, it was not possible for the father’s application to be listed urgently. Rather, it was listed for hearing on 27 November 2009.
Ms Sands responded to this application on 26 November 2009. She seeks the following orders:
“1.That paragraph 14 of the order made on 12 December 2007 (amended 12 May 2008) by Federal Magistrate Brown be discharged.
2.That the parties forthwith do all things necessary to ensure that the child [Z] is enrolled in and attends the [N] School.
3.That the parties be and are hereby restrained by injunction from removing the child from the [N] School to a different primary school without the written consent of the other party or further order of this Honourable Court.”
It is common ground between the parties that [Z] attended [S] School in 2007, 2008 and for the larger proportion of 2009. He commenced primary school at [N] School on 14 September 2009. [N] School is located in [N]. [S] School is located in [G]. [G] and [N] are suburbs in close proximity to one another in the northern metropolitan area of Adelaide.
[Z] has attended at [N] School for all of the fourth term of 2009. Given that the school year is drawing to a close, Mr Moers does not want to disrupt this arrangement in the short term. However, he wants orders made that would ensure [Z] returns to [S] School’s for the commencement of the school year in 2010.
On the other hand, it is Ms Sands’ position that factors relating to her own wellbeing and security, which in turn have ramifications for [Z]’s welfare, dictate that he should remain at [N] School.
It is common ground between the parties that they did not consult regarding the change in [Z]’s school enrolment. Accordingly, from

Mr Moers’ point of view, there has been a clear breach of the injunction made on 12 December 2007.
On the other hand, it is Ms Sands’ position that it would have been a pointless exercise for her to consult with Mr Moers about the issue and the overall circumstances were of such gravity that she needed to take urgent steps to withdraw [Z] from [S] School’s and place him in an alternative school.
Both parties have filed affidavit material in support of their respective positions. In the father’s case, he relies on the following documents:
i)Two affidavits of himself filed 24 September and 30 November 2009;
ii)An affidavit of his solicitor Benjamin Farmer filed 25 November 2009.
The mother relies on the following documents:
i)An affidavit of herself filed 26 November 2009.
These proceedings are designed to resolve this dispute between the parties. The hearing, at the interim stage, does not allow for the hearing of oral evidence from the parties concerned nor any cross examination. Necessarily the hearing has to be brief.
As a consequence, given the nature of the proceedings, the outcome is ordinarily a provisional one, which is subject to possible change at final hearing, where there may be a greater scope for the more exhaustive examination of all evidence relevant to the issues in dispute between the parties.
In particular, at this interim stage, I do not have any independent and so objective assessment of how [Z] is currently faring psychologically. Although he is a child of tender years, it may be the case that he has a strong view about which school he would prefer to attend.
The parties themselves may not be dispassionate and impartial vehicles to convey their understanding of any such preference on [Z]’s part. As such, it may be preferable that this aspect of the case be examined through the mechanism of a family report.
It is equally possible that, in the context of the extreme conflict between his parents, the issue of which school [Z] is to attend is one too emotionally fraught for him to be able to express a candid opinion. After all, he is only seven years of age.
As such, it may be unkind to expect a little boy to be able to express a view about the matter to a stranger, no matter how kindly and experienced, when he knows the significance of the issue to each of his parents. In such circumstances, a court must be cautious about unwittingly enmeshing any child in the conflict between his parents.
Given the timeframe surrounding the allocation of this interim hearing, there has been insufficient time for such a report to be commissioned. Necessarily such a report is more easily obtained in the lead up to a final hearing.
Whatever is the outcome of the proceedings at this current stage, I must be satisfied that it will serve [Z]’s best interest [Family Law Act section 60CA]. The same principal applies at both the interim and final stage. The distinction being that interim hearings do not usually determine long term arrangements for the care of a child, whereas final proceedings do.

It is frequently the case that the court is called upon to make interim determinations against a background of urgency in circumstances where the parties concerned have diametrically opposing views as to what arrangements will serve their child’s best interests.

Legal Principles to be applied

The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives, both in terms of spending time with them and in respect of the making of important decisions regarding their children.[6]
[6] See Goode & Goode (2006) FLC93-286 at 80,901
An order which provides for shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Pursuant to section 65DAE, parents do not have to consult on matters, which are not concerned with long term issues, when the child is spending time with one or other of them. This is to ensure that the myriad decisions, which have no long term significance concerning a child and which need to be made on a day to day basis, by both of the child’s parents, can be made.
In considering [Z]’s best interests, I must look to a list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the child concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
It is clear from the structure of the Family Law Act that the court must closely examine allegations of family violence, bearing in mind the serious consequences exposure to such violence may have for any children concerned.
Family violence is defined as “conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety” [section 4].
Accordingly, the definition of family violence contained in the Act has an objective level. The fear or apprehension occasioned by the behaviour complained of must be reasonable. It is not unknown for parties in acrimonious family law proceedings to exaggerate unfortunate incidents, which have previously occurred, either unintentionally or for tactical reasons.
Allegations of family violence are easy to make and at times difficult to refute. This is because family violence, more often than not, occurs in a private setting away from independent and objective sources of verification. However, it is now generally recognised that family violence is prevalent in all social settings and can represent a grave threat to the welfare of children.
A parent who uses violence to resolve a dispute is not an appropriate role model for a child. For obvious reasons, it is potentially psychologically damaging for a child if he witnesses violence inflicted on one of his parents.
The fundamental task for the court, in cases where issues of family violence are raised, is to assess the potential risks to any child concerned arising from exposure to family violence. The court must fashion an appropriate response to the degree of risk involved.
In conducting hearings at the interim stage, the Full Court has directed that it is necessary for the court to consider all of the section 60CC factors applicable and, if possible, make findings about them [see Goode & Goode (supra) at 80,903]. However, the Full Court also recognised that this may not be possible within the context of an abridged interim hearing.
The Family Law Act was significantly amended by the provisions of the Family Law Amendment (Shared Parental Responsibility) Act 2006. Through this amendment, the legislature has made significant directions as to how courts, such as this one, are to conduct “child-related proceedings”. These provisions are contained in division 12A of Part VII of the Act. These provisions apply at both the interim and final stage.
Pursuant to section 69ZN the court is required to give effect to a number of principles, whilst exercising jurisdiction in proceedings concerning children. These principles are as follows:
a)the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of proceedings.
b)the court is to actively direct, control and manage the conduct of proceedings.
c)proceedings are to be conducted in a manner which will safeguard the child and parties concerned from family violence, abuse and neglect.
d)proceedings are to be conducted in a way the will promote cooperative and child-focused parenting.
e)proceedings are to be conducted without undue delay, formality and legalism.
Pursuant to section 69ZQ, the court is provided with a number of duties in order to enable it to give effect to these principles. It may:
a)decide which issues require full hearing and which may be dismissed summarily;
b)decide the order in which issues are determined or what steps should be taken to determine issues;
c)in deciding whether or not a particular step is taken, consider the cost implications of such a step;
d)use appropriate technology;
e)use family dispute resolution or family counselling where appropriate;
f)deal with as many aspects of the case as possible on a single occasion and if appropriate without the physical attendance of the parties.
As a corollary to these duties, the court is provided with a number of powers pursuant to the provisions of section 69ZR. At any time in child related proceedings, it may:
a)make a finding of fact;
b)determine a matter arising out of proceedings;
c)make an order in relation to an issue arising out of proceedings.
These various principles and duties have been collectively described as being procedures designed to make proceedings in regards to children “less adversarial”.
In enunciating these various principles, the legislature recognised that unduly protracted litigation, regarding any child, is usually not helpful to the child, who is the subject of such litigation and certainly does not encourage those who are involved in his care to have a cooperative or collaborative approach towards his parenting.
Litigation regarding the parenting of children is liable to be expensive, in both financial and emotional terms and, at its end, the parties to it are likely to remain in a close familial relationship, unlike the parties to other litigation, such as an action about a contract or a tort.
In the former case the parties must patch up their relationship, if they can, at the end of the proceedings and attempt to parent their children in a constructive manner. In the latter case, the parties may choose never to see one another again and so the quality of any future relationship between them is of no moment.
The principles outlined in Division 12A recognise that it is in the best interests of children that those involved in their care avoid, as far as possible, the deleterious consequences of litigation, which is rarely a constructive process, as it is often focussed on finding fault and emphasising the failings of the other party concerned and so does little to foster constructive parent relationships.
The principles seem to have the following objects: courts are directed to discourage unnecessary litigation; closely manage that litigation which cannot be avoided; focus the minds of the parties concerned on the potential harm, which may be occasioned to children by such litigation through the perpetuation of parental conflict; and consider the fiscal implications, both private and public, in the conduct of such litigation.
This list is not intended to be an exhaustive one. At the same time, the court is cautioned against overlooking the need to conduct proceedings in a way which will maximise the protection of children from harm to them arising from neglect, abuse and family violence.
The principles seem to be directed to allow the court to fetter, to some degree, the freedom provided by a classic adversarial system which enable parties being able to investigate every issue which may possibly be of some interest to them, particularly if this untrammelled freedom has implications for the best interests of any child concerned.
The rationale being that proceeding relating to children, pertaining as they do to the interests of a person or persons who are not strictly a party to them – the child or children concerned – have something of the nature of an inquiry about them and as such are not entirely adversarial.
In the vernacular, the division provides for the possible abrogation of the freedom “to chase every rabbit down every hole”, in the hope, often vain, that something which may advances a party’s cause will turn up through such an exercise. At the same time, the court is reminded that its essential raison d’etre is the welfare of children and such considerations should not be sacrificed on the altars of pragmatism.
In some cases, these ends may come into conflict. This may be particularly so in cases where one party has a particular difficulty in accepting the validity of a long existing state of affairs or has a propensity “to cry wolf” on the slightest of pretexts or for some other reason is unable to let go of proceedings which are no longer useful.

The father’s position

The father’s case can be summarised as follows. On the morning of 18 August 2009, he delivered [Z] to [S] School as usual. He now understands the child was absent from the school for the next 12 consecutive school days. He was not advised by anyone as to why this occurred.
In a letter addressed to Ms Sands’ solicitor, dated 1 September 2009, he complains that Ms Sands had disconnected her phone and recently insisted that [Z] henceforth be exchanged between the parties at the [omitted] Police Station, which was not in accordance with the previous court orders.
He arranged for [Z] to attend [S] School’s on the 2^nd, 3^rd and 4^th of September, whilst [Z] was in his care. The father again delivered the child to school at [S] School’s on 8 September but [Z] did not attend the school for the remainder of that week, or subsequently until the third term concluded.
Mr Moers returned to Adelaide on 21 September 2009 (a Monday). He collected [Z] the next afternoon at the Police Station. The next morning he delivered [Z] to [S] School’s. The mother attended at the school shortly afterwards. It being clear that it was her intention to take [Z] away, the Deputy Principal of [S] School’s informed

Mr Moers that there was nothing the school could do about this as it regarded Ms Sands as being “the enrolling parent”.
It is common ground between the parties that [Z] has not returned to [S] School’s since this time and has been subsequently enrolled at [N] School by Ms Sands. I am satisfied that this enrolment occurred as a result of Ms Sands’ unilateral actions and she did not have Mr Moers consent in this regard.
Accordingly, on a prima facie basis, it is apparent that she has breached the provisions of order 14 of the orders made on 12 December 2007 and the legislative imprimatur arising from the fact that she and

Mr Moers have equal shared parental responsibility for [Z] and so are enjoined to consult about major issues pertaining to [Z]’s education.
In this regard, I have no difficulty reaching the conclusion that the question of a child’s enrolment at one particular primary school is a major long term issue pertaining to a child’s education. I do not think that Ms Sands seriously contends otherwise. I also find that she knew of the existence of order 14 and understood its import.
It also seems clear to me that the unfolding controversy between the parties placed the authorities at [S] School in an invidious position. The school received correspondence from Mr Moers’ solicitors regarding the issue and drawing its attention to the provisions of order 14.
Ms D, the principal of [S] School’s wrote to Mr Farmer on 19 October 2009 as follows:
“[Z] continues to be enrolled at [S] School, and it is my intention that this remain so until I receive notification that both parents have agreed to a change in school. At this point in time,

Mr Moers has indicated in conversation with me that it is his desire that [Z] continue his schooling at [S] School’s, and I am aware that clause 14 of the current order requires the agreement of both parents before a change in school occurs. It is for these reasons that we continue to keep [Z] on our enrolment register.
I am aware, as I am sure you are through Mr Moers, that Ms Sands has enrolled [Z] in another school.
As of today, [Z]’s last attendance at [S] School’s was 10/9/09. I have spoken with Mr Moers and informed him that Ms Sands has indicated she will contact [S] School when [Z] is in Mr Moers’s care to ask if [Z] is at school and if so, will collect him and take him to the other school. I have explained to Mr Moers that the school has no power in this case to stop Ms Sands from taking such action.
I have impressed upon both Ms Sands and Mr Moers, the school’s desire that they resolve the matter of [Z]’s schooling. My desire is that [Z] is able to engage in his schooling in a consistent, happy manner. If you are able to effect a positive outcome regarding this, I would be most grateful. The school does not wish to become involved in a dispute between parents, and a speedy resolution to this situation is imperative and in [Z]’s best interest.”[7]
[7] See Mr Farmer’s affidavit filed 25 November 2009 at annexure BSF6
The principal of [N] School wrote to Mr Farmer on 12 October 2009 advising that [Z] had been involved at the school from Monday

14 September 2009 onwards. He had attended the school between

14 and 20 September 2009 and had re-attended from the start of term 4 on 12 October 2009.
As has previously been indicated, Mr Moers commenced the current round of proceedings on 24 September 2009. Accordingly, he cannot be said to have been tardy in bringing his concerns before the court or to have acquiesced to the change of circumstances by any inaction on his part.
As has previously been indicated, Mr Moers returns to Adelaide one week in three, during which time it is his responsibility to ensure [Z] attends school. It is a clear inference from Ms D’s letter that her understanding of the situation was that Ms Sands would attend at [S] School’s on any day the child was delivered there and remove him. In these circumstances, the school authorities at [S] School’s felt powerless to intervene. I can understand why they would consider this to be the position and sympathise for them.
It is Mr Moers’ position that, in these difficult circumstances, he had no alternative but to go along with [Z]’s enrolment at [N] School, until the court came to adjudicate upon the issue.
I agree with Mr Moers’ assessment of the situation. It would be an untenable outcome if the child was delivered by one parent to [S] School, where the child was enrolled and for the other parent to arrive at that school and take to him to another one. As such, Mr Moers seeks to return to the long established status quo of [Z] attending [S] School’s from the beginning of term one of 2010.
In his more recent affidavit, Mr Moers has asserted that [Z] has informed him that he wishes to return to [S] School’s because he is not enjoying [N] School.
Much of this case centres on the behaviour of two individuals who are not parties to it and who have not provided any evidence for it. They are Mr and Ms L. Mr Moers acknowledges being a friend of Mr L but not of his former wife, Ms L.
Mr Moers also deposes that Mr and Ms L have two children [J] and [S], who are friends of [Z]. It is the father’s position that [Z] spends time with these children when he ([Z]) is in his father’s care and [J] and [S] are in the care of Mr L who is separated from Ms L.
The significance of the L family will become clear when the mother’s position is set out. However, it is Mr Moers’ position that an “issue” has arisen between Ms Sands and Mr and Ms L regarding something which has occurred at [S] School.
From Mr Moers’ perspective, this issue has nothing to do with him. He understands however that Ms L and Ms Sands have had a “falling out over money” and that Mr L has applied for a “stalking order” against Ms Sands.

The mother’s position

The mother’s case is that the father instigated an unpleasant altercation with her, in [Z]’s classroom at [S] School’s on 17 August 2009. He said to her “what the fuck are you doing here”, when she was perfectly entitled to be present at the school.
Thereafter, she asserts that Ms L gratuitously inserted herself into the situation between her and Mr Moers by saying “your time is almost up [Ms Sands]”. The import being that this was an act of provocation by Ms L.
Ms Sands summarises her complaint against Mr and Ms L as follows:
“Ms L and her ex-husband Mr L are close friends of the father and I believe the father speaks to Mr L and Ms L about arrangements between the father and myself in relation to [Z] and I believe Ms L acts with the father’s encouragement or tacit approval in a deliberate and ongoing effort to intimidate and harass me.”[8]
[8] See Ms Sands’ affidavit filed 26 November 2009 at paragraph 6
Later that day Ms Sands complains that she was followed to her place of work by a car driven by Ms L and received an abusive telephone call from her. However, Telstra were not able to trace the call to Ms L as it was made from a public telephone box.
The following day (18 August 2009) she attended at [S] School’s to complain to the authorities about Ms L’ behaviour. Prior to arriving at the school, she alleges that Mr Moers attempted to drive her car off the road with his vehicle. This incident does not appear to have been reported to the Police.
On arriving at the administration centre of [S] School’s, Ms Sands discovered that Mr and Ms L had also arrived there a little earlier, apparently to complain to the school authorities about Ms Sands’ conduct the previous day. It is the mother’s case that she was further abused by Mr and Ms L at the school office. This caused her to leave.
Thereafter, Ms Sands complains about receiving numerous nuisance telephone calls. Again, Telstra were unable to identify the specific caller concerned. It is also her case that an unknown person threw a brick at her bedroom window on 20 August 2009. In addition, Ms Sands alleges that she has been harassed by Ms L and her current boyfriend who have been driving around the vicinity of her home.
These various incidents have been the subject of a complaint to the South Australian police by Ms Sands. I have not been advised of the outcome of this complaint, particularly whether it is intended to lay any charges in respect of any or all of these matters.

This state of affairs was the apparent catalyst for Ms Sands determining that she would remove [Z] from [S] School. She apparently wrote to Mr Moers to inform him of her decision on or around 12 September.
It is her case that the Police advised her not to disclose to any person the nature of the incidents which had given rise to her decision as this would prejudice ongoing investigations.
In her letter to Mr Moers, she wrote as follows:
“I am aware that there is a court order to whereby [Z] is not to be removed from his current school without the consent of the other parent, however as a safety measure for myself and my three children, the police and the school have supported my decision to enrol [Z] into another school.
As I cannot disclose the reasons for this decision at this point in time, as the matter is still currently under investigation by the police, I look forward to receiving a contravention filed by you in the Magistrates Court to whereby the evidence provided to the police will be available to the courts to support my decision in changing [Z]’s school.”[9]
[9] See exhibit DNS-3 to Ms Sands affidavit filed 26 November 2009
The school authorities at [S] School’s were aware of Ms Sands’ concerns. On 26 August 2009, Ms K sent an email to her as follows:
“I am again making contact to ask if you are ok, and if [Z] and your other children are safe and well. In response to your previous question about what the school can do about your and [Z]’s safety at the school, staff will be on duty before school and after school as usual, and will be briefed to keep a watch in the yard for any potential altercations and to take appropriate action where necessary. I assure you that OSHC staff have received the same briefing. In addition, I suggest you raise any other reasonable measure that you may feel assist in ensuring your and [Z]’s safety at school and I am sure that Ms M will consider your request. I have also been advised that Ms M has spoken with both Mr L and Ms L and conveyed her expectations of behaviour of parents at the school.
In term’s of [Z]’s absences from school, as it is so important for [Z]’s learning that he returns to school as soon as possible, I would like to ask whether you would consider a plan for [Z] to return to school. Ms M has a legal obligation to contact a DECS attendance officer to advise where there are significant absences by students. I ask that you please make contact with Ms M or me with a view to setting up a plan for [Z] to return to school without further delay.
I also remind you that Ms M and/or I are happy to arrange counselling support for [Z] if you would like it (although I recall you may have an independent counsellor involved already), as well as any other support measures to assist [Z]’s return to school.”[10]
[10] See exhibit DNS-2 to Ms Sands affidavit filed 26 November 2009
As perhaps might be anticipated, Ms Sands is positive in her description of how [Z] has adapted to attending [N] School. She describes him as “settled and happy” at the school. It is also beneficial she believes that the cost of attending [N] School is significantly less than the fees payable at [S] School’s.
Other advantages of [N] School, from the mother’s perspective, include that class sizes are smaller and [Z] has a male class teacher. She describes the other students at the school as being “welcoming and accepting” of [Z].
Ms Sands deposes that Mr Moers has applied for a domestic violence restraining order against her, presumably in the State Magistrates Court. She has indicated that she will oppose the granting of such an order and accordingly the application has been fixed for trial. As such, it would appear to be the case that there is a further stream of proceedings between the parties in another jurisdiction.

Facts

In Goode & Goode, the Full Court determined that in interim hearings, after identifying the competing proposals of the parties and the issues in dispute, the court should endeavour to identify any agreed or self apparent facts. At this stage the following facts appear to me to be established:
·The parties have equal shared parental responsibility for [Z] as a result of the orders made on 12 December 2007. They agreed that it was appropriate that they have such equal shared parental responsibility for [Z];
·[Z] has attended [S] School for the vast majority of his primary school education to date;
·At least when he was enrolled at the school, at aged 5, it was a joint decision of the parents concerned;
·There was an incident at the school involving Ms Sands and certainly Ms L on 17 August 2009. Mr Moers had been at the school on that day;
·This was followed by a further incident between the mother and Mr and Ms L, at the school office, the following day (18 August). Mr Moers was not present;
·Ms Sands told the administration of [S] School’s of her intention to remove [Z] from the school either on 18 or 19 August 2009;[11]
[11] This must follow from Ms K’s email to Ms Sands of 19 August 2009 annexed to Ms Sands’ affidavit of 26 November 2009.
·Ms Sands did not advise Mr Moers of her intention at this time;
·[Z] did not attend school, either at [S] School’s or elsewhere, between 18 August and 31 August 2009;
·Ms Sands did not advise Mr Moers that the child was not attending school. Accordingly, this was her decision alone;
·Ms Sands unilaterally changed arrangements for the exchange of [Z] between the parties to the [omitted] Police Station on or about 1 September 2009;
·[Z] attended [S] School’s on 2, 3 and 4 September 2009, whilst in his father’s care;
·[Z] did not attend school on 4 September or between 7 and 11 September 2009. He was in Ms Sands’ care during these periods. She did not advise Mr Moers of this eventuality;
·Ms Sands enrolled [Z] at [N] School on 14 September 2009. He attended this school for the remainder of term three and has continued at the school for the final term of the school year;
·Ms Sands informed Mr Moers of her decision in this regard by way of a letter dated 12 September 2009;
·On 26 August 2009, Ms K of [S] School advised Ms Sands of the school’s concerns regarding [Z]’s non-attendance at school. The school also offered counselling support for [Z] and made proposals to ensure his safety and the safety of Ms Sands at the school in future;
·Mr Moers commenced these proceedings on 24 September 2009. It cannot be said that he has acquiesced, either actually or by necessary implication, in [Z]’s removal from [S] School’s and re-enrolment at [N] School.

Disputed facts

In my view, the following matters encapsulate the areas of dispute between the parties:
·What are [Z]’s views about the change of school? Does he wish to return to [S] School’s as the father contends or is he content at [N], as the mother asserts?
·What was the nature of the altercations which occurred on 17 and 18 August 2009?
·Are either or both of Mr and Ms L the agents of Mr Moers in a campaign of harassment and intimidation against Ms Sands, as she contends?
·In contrast, is Ms Sands the agent of her own misfortune, so far as Ms L is concerned, by reason of her querulous personality or other unresolved business between her and Ms L?
·What is the exact nature of the campaign of harassment and intimidation which Ms Sands alleges and who is its protagonist?
As previously indicated, the most appropriate mechanism for ascertaining [Z]’s views about the change in his education would appear to be a family report. The possible detrimental consequences of this course are that, given his tender years and current circumstances, [Z] may be unwilling or unable to express any clear preference either way. In addition, it may be emotionally challenging for him to take part in such a report or assessment.
At the end of the day, the court must weigh in the balance, the possible benefits of such a report against its potentially adverse consequences. In so doing, the court must examine the gravamen of the issue in dispute between the parents and not lose sight of the fact that the best interests of the child concerned remain paramount. Essentially, a family report of itself is not a tool for resolving conflict between parents. Rather, it is a mechanism to assist the court in ensuring that a child’s best interests are served.
I concede that it is not possible for me to ascertain what occurred on 17 and 18 August, within the parameters of an interim hearing, which does not allow for cross examination. In addition, at the interim stage, I do not have any evidentiary material from either Mr L or Ms L. Clearly, they are both likely to be central to the resolution of this central evidentiary issue.
I do not know whether either of the parties has explored the option of either Mr or Ms L giving evidence in these proceedings, either through the provision of an affidavit or by means of compulsion through the issue of a subpoena. There is some suggestion that their alleged misbehaviour may be the subject of police investigation and possible charge. In such circumstances, they are likely to be reluctant to provide evidence to this forum.
If there are to be police charges, involving either Ms & Mr L or the parties’ themselves, it would seem highly likely that the ultimate resolution of such proceedings will be many months away. In such circumstances, the utility of Mr Moers ultimate application – that [Z] be reinstated at [S] School may be circumvented, particularly if [Z] remains at [N] School.
For obvious reasons, if [Z] is to return to [S] School’s, the optimal time for this to occur would be at the start of the 2010 school year. The longer his return is delayed, the more problematic it will become. From Mr Moers’ point of view, such a delay will provide de-facto authorisation for what he categorises as being Ms Sands’ unilateral and inappropriate parenting behaviour.
In my view, these considerations are relevant not only to the outcome of the interim application but also as to whether or not the matter should be allocated a final hearing date, whether involving a family report or otherwise. In this respect, it is my view that the provisions of division 12A are relevant, particularly in how these proceedings can be rendered as “child focussed” as possible.

Section 60CC factors

a) The primary considerations

I am satisfied that [Z] has a meaningful relationship with both his parents. This must follow from the fact that both are significantly involved in providing care for him, albeit that Mr Moers is only in Adelaide during one week in three.
It also seems clear to me that [Z] will continue to have a meaningful relationship with both his parents regardless of which school he ultimately attends. In simple terms, the two schools are in reasonable proximity in the northern suburbs of Adelaide. As such, in simple geographical terms, it will not prejudice the nature of Mr Moers’ relationship with [Z] if he attends [N] as opposed to [S] School’s.
The major theme of Ms Sands’ case is that considerations of family violence and the need to protect [Z] from it drove her decision to change [Z]’s school enrolment and justified her actions. I have already alluded to the evidentiary issues pertaining to this aspect of the case, particularly that it is not said that the father is the direct protagonist of this alleged violence. Rather, Ms Sands alleges that Mr & Ms L are acting as his proxies or at his instigation.
Ms Sands complains that Mr Moers directed a profanity towards her, at the school, on 17 August 2009. Mr Moers has not specifically refuted this allegation.
If Mr Moers did say to Ms Sands what he is reported to have said, his behaviour may be categorised as boorish and uncouth. However, I do not think that it objectively amounts to family violence. In the context of the parties’ conflictual relationship with one another, it is not an action which would cause a person to become fearful or apprehensive.
Ms Sands also claims that Mr Moers drove his motor vehicle in a dangerous and threatening way towards her. Again, this allegation is not specifically refuted. Clearly, if it is true, this behaviour would amount to family violence.
However, it does not seem to be the case that this specific incident has been the subject of a police complaint. In addition, Ms Sands has not sought the assistance of a family violence order to protect her from the commission of similar acts in future. In the past, she has not been adverse to seeking such orders.
In addition, it is her position that the father has sought a similar order against her, which she is contesting. I am concerned that much of the parties’ behaviour towards one another can be characterised as being “tit for tat”.
Ms Sands claims to have been the object of a vindictive vendetta from Ms L, which she believes is orchestrated by Mr Moers. The vendetta is comprised of nuisance phone calls; stalking; and the throwing of a brick. Clearly this is violent and anti-social behaviour, which is capable of being the subject of criminal charges.
At this juncture, there is no concrete evidence to sheet this behaviour home to Mr Moers. It is his case that Ms L is a free agent and has her own reasons for being aggrieved by Ms Sands. At this juncture, I am unable to resolve definitively the truth or otherwise of Ms Sands’ allegations.
However, I must make some sort of assessment of the risk posed to [Z], if these allegations are true. In this regard, I note that the majority of Ms Sands allegations concern incidents which have occurred at her place of work and residence. She has changed her telephone number but has not ceased employment or moved house.
The incidents of which she complains at [S] School’s itself occurred on 17 and 18 August 2009. She does not indicate any specific instances of assault. Rather, what she complains about was verbal and aggressive language, which mainly occurred in the school office. Again, this may be, at its worst, rude and uncivilised behaviour more suitable for a bear pit than a children’s primary school. But is it family violence?
It may be but my experience of Ms Sands is that she is not a hyper-sensitive person. In addition, by her own past behaviour, she has shown herself capable of engaging with the police and other authorities if she believes her situation warrants it.
In all these circumstances, I do not think that the mother’s actions in withdrawing [Z] from [S] School were proportionate to the degree of risk posed to him by either his father’s or Mr and Ms L’s alleged behaviour. In addition, the school authorities, having been advised of some form of altercation, offered mechanisms to prevent the occurrence of any further unfortunate altercations in the future.
In all these circumstances, I do not think that it would represent an unacceptable risk to [Z]’s safety, either in a psychological or physical sense, if he was to return to [S] School.
I am concerned that Ms Sands’ response was motivated more by her own personal sense of animus, both for Mr and Ms L and Mr Moers than by her concerns for [Z] and his well being.

b) Additional considerations

a) [Z]’s views

What [Z] thinks about the merits of [N] School, as opposed to [S] School’s and how he feels about moving away from the cohort of friends he has had at the latter school since he began there is a matter of controversy between the parties.
In addition, at the end of the day, it is the responsibility of parents to make educational decisions about their children, rather than for the children themselves to call the shots in this regard.
In these circumstances, particularly given the tender years of [Z]; the fact that he is a child who has been described as having special needs; and the extreme conflict and dysfunction in his parents relationship with one another; I have come to the conclusion that it is not warranted to obtain some independent assessment of what are his views regarding the appropriateness or otherwise of his parents’ preferred school enrolment.

b) The nature of [Z]’s relationship with each of his parents and significant others.

[Z] has a significant relationship with each of his parents. This is not a central issue in the determination of the present dispute between the parties.

c) The willingness and ability of the parties to encourage a close and continuing relationship between the child and the other parent

The court is required to consider how the parents have each facilitated the involvement of the other in [Z]’s life and in arrangements for his care. In considering this criterion, the court is directed to the provisions of section 60CC(4) and is required to assess the degree of participation of the parents concerned, as well as their facility to involve the other, in making decisions about long term issues in relation to their child. The considerations in section 60CC(4) and (4A) emphasise the benefits for children of effective co-parenting and the obligations on parents to facilitate it.
Although it may irk Ms Sands, there seems no doubt that Mr Moers wishes to be fully involved in making decisions pertaining to [Z]’s long-term future. In addition, given his onerous work regime, it seems self-apparent that he wishes to spend as much time as possible with him.
Clearly, the decision about which primary school [Z] should attend is one which can be characterised as a major long-term issue. After what occurred on 18 August 2009, Ms Sands stopped [Z] attending [S] School’s. She did not advise Mr Moers of her decision, nor does it seem to be the case that she had decided on an alternative. I reach this conclusion because [Z] attended the school in the week commencing 1 September, when his father was in Adelaide.
Accordingly, Ms Sands had well in excess of three weeks to discuss the issue with Mr Moers. She chose not to do so. Rather, she informed him in a letter of 12 September of what she proposed. Associated with this proposal was an invitation to him to bring contravention proceedings. This can hardly be described as a conciliatory or constructive attitude.
The parties were last before the court in July of 2007, on which occasion I was dealing with a series of contravention applications brought by Mr Moers. Ultimately, one of these applications was withdrawn. During the course of the proceedings, through their respective counsel, the parties requested time to see if they could refine the orders made in December of 2007, so that they would, it was hoped, work better.
The mother has long complained about the inadequacy of notice provided to her as to when Mr Moers will be returning to Adelaide. For his part, Mr Moers has long complained about what he feels is the capricious behaviour of the mother and her propensity to exclude him from decision making regarding [Z], particularly so far as medical matters are concerned.
On 17 July 2009, to their mutual credit and no doubt after the invaluable assistance of their respective legal advisers, the parties were able to agree on the implementation of a new regime of orders which dealt with matters such as handover; medical treatment; the time for telephone communications between parents and child; and issues to do with medical treatment, particularly liaison with Dr H, [Z]’s epilepsy specialist.
In this context, the parties agreed to a lengthy adjournment of the remaining contravention proceedings and were apparently sanguine that they could be discontinued once the new regime had bedded down. I was pleased with this outcome, which I thought was demonstrative of thoughtful and conciliatory parenting.
It now seems clear that, once again, the parties’ parenting relationship has collapsed. Ultimately, I fear that this must be to the detriment of [Z]. Ms Sands has commenced her own round of contravention proceedings, which complain about her not being advised of a medical appointment with Dr H on 4 September 2009 and not being told of medication dosages prescribed for [Z]. She also complains about problems to do with her telephone communication with [Z].

These issues arise where the parties are apparently engaged in other vitriolic proceedings in the Magistrates Court regarding other incidents of alleged misbehaviour. My concern is that each of the parties concerned seem addicted to court proceedings and seems unable to prevent the rapid escalation of issues in dispute between them.
In this context, it is probably fatuous to categorise one parent as being entirely the victim of the other. In my view, both must accept some degree of responsibility for their compromised parenting relationship.
Although Mr Moers has a fairly well paid job in Western Australia, my impression is that the parties are not wealthy people. At times

Ms Sands has been legally represented, at other times not. In the past, she has complained about her straitened financial circumstances. The litigation between the parties has been bitter and protracted.
I suspect that neither party can easily afford this “blitzkrieg” approach to litigation. Both now seek cost orders against the other, in the hope that such orders will hobble the other’s predilection for litigation or (in the father’s case) future unilateral action on the mother’s part.
None of this behaviour can be categorised as good parenting. In my view, there comes a point where the court must indicate its trenchant opposition to litigation, which at first blush seems to relate more to a struggle between parents for the upper hand over the other than to the best interests of any child concerned.
In my view, order 14 of the orders made on 12 December 2007 was clear and unequivocal. [Z]’s school was not to be changed without the clear consent of the other party concerned.
Neither Mr Moers nor Ms Sands were carolled or compelled into court in December of 2007 to have the various disputes between them resolved. They came to court because there were issues in dispute between them, which they themselves were incapable of resolving. The court resolved those issues. Each of the parties, in the absence of an appeal or other subsequent order, was bound by those orders.
A civilised and orderly society, governed by the rule of law, requires its citizens to obey court orders. If courts were not able to enforce their decisions, or one party to a determination was able to ignore it willy nilly, the strong would be able to take advantage of the weak, if aggrieved by any decision. Clearly, the most vulnerable members of society are children. Decisions of this court are designed to promote the best interests of children.
In many ways, the proceedings brought by Mr Moers are analogous to contravention proceedings. He is aggrieved that Ms Sands has disobeyed the previously made order. In all the circumstances of this case, I can understand why he would feel so.
I am concerned that the parties’ mutual efforts to gain the ascendancy over the other, through protracted court proceedings such as these, constitute extremely poor parenting.
In my view, Ms Sands clearly showed a compromised ability to include Mr Moers in making a major long term decision to do with [Z]. She can only have been aware, as the tone of her letter of 12 September 2009 indicates, that Mr Moers would be unwilling to accept her actions without demur. I consider that she must have known that what she was doing could only drive the various disputes between the parties and precipitate yet more litigation between them.

d) The likely effect of any changes in the child’s circumstances

As previously indicated, the parties are in dispute about how well [Z] has coped with the change of his school. I appreciate that many children, of [Z]’s age, change their place of schooling without adverse consequences. However, in my view, a child is more likely to accommodate a change of school if this occurs against a background of parental agreement and mutual planning.
This did not occur in the current case. As such, I am of the view that the overall issue was not well handled and, as such, there may very well be some adverse consequences for [Z] of the change in his enrolment.

e) The practical difficulty and expense of the child spending time with each of his parents

This does not appear to be a specifically relevant consideration in this case.

f) The capacity of the parties to provide for the child’s emotional and educational needs

I have been provided with scant information regarding the respective merits of [S] School and [N] School. On the information provided to me, it is difficult to see that one school is likely to be inherently superior to the other. As such, I am concerned that the issue of school selection has been motivated more by parental issues than those to do with [Z]’s educational needs.
I am also concerned that the unacceptable level of conflict between the parties is likely to impact adversely on [Z]’s emotional well being. In this regard, I am concerned that there is the risk the child may be robbed of a happy childhood because of the protracted quarrelling between his parents.

g) The child’s maturity, sex, lifestyle and background

h) Aboriginality

These are not relevant considerations.

i) The attitude that each parent has demonstrated to the responsibilities of being a parent

j) Family violence

k) Any family violence order

I do not feel that is necessary to revisit these matters in the context of what has already been said.

l) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings

I am fervently of the view that it is likely to be in [Z]’s best interests that there be a cessation of the punitive litigation in this matter. I am not sure how such an object can be achieved, unless the parties themselves have a fundamental change of heart.
At the end of the day, it may be the case that the parties themselves are incapable of equally sharing parental responsibility for [Z] and the impaired nature of their relationship with one another makes such an outcome impracticable.
As I indicated at the outset, I have no authority to compel Mr Moers to return to live in Adelaide permanently. However, it may be the case that if he wishes to assume sole parental responsibility for [Z] that this would be an essential prerequisite of such an outcome.
On the other hand, in 2007, the parties agreed that they wanted to share parental responsibility for [Z]. Indeed, Ms Sands proposed a shared care arrangement posited upon Mr Moers returning to live in Adelaide permanently, although I now suspect that she was being somewhat disingenuous in her proposal.
In these circumstances, I am concerned that she may have an ulterior motive for making the sharing of parental responsibility for [Z] as difficult as possible. However, that is not an issue, which can be resolved in the context of these proceedings.
It is sadly not unknown for one parent, who is opposed to a shared care or substantial and significant time regime to be prone to accentuate the level of difficulty between the parents concerned in order to achieve the outcome he or she prefers. For obvious reasons, given the structure of the Family Law Act, particularly section 60CC(4), such behaviour is unamicable to good parenting practices.
The difficulty, in the present case, is that an open ended round of contravention proceedings and quasi contravention proceedings are unlikely to come to the nub of the deep seated issues between them. Rather, they will constantly inflame their already poor parenting relationship and rob them of financial resources.
In addition, contravention proceedings are not usually amenable to extraneous investigation through such mechanisms as family reports.

Conclusions

Balancing the various section 60CC factors and bearing in mind the truncated nature of the proceedings before me, I have come to the conclusion that [Z]’s best interests will be served if he is returned to [S] School at the commencement of the school year in 2010.
In my view, this is likely to be the most stable and secure outcome for him, given that this has been his school for the majority of his life to date. I am also satisfied that such an outcome will not expose him to an unacceptable risk of exposure to family violence.
In addition, this outcome is in accordance with the intent of the orders made on 12 December 2007, which inaugurated a regime whereby the parties were required to consult with one another about major long term issues to do with [Z] and attempt to resolve any difficulties arising thereon consensually.
In all the circumstances of this case, I do not think it would be in keeping with such a situation and the overall structure of the Family Law Act that the court should be seen to be endorsing Ms Sands’ unilateral actions in regards to [Z] and his education.
I will hear the parties in respect of the issue of costs arising from these reasons for judgment and what should occur in respect of the contravention proceedings already on foot on a date to be advised to each of them.
I have also reached the conclusion that it would not be in [Z]’s best interests for the issue of his school attendance to be further agitated beyond this current determination in the absence of any other application for final orders. Accordingly I propose to dismiss each of the parties’ applications regarding the school issue, apart from the aspect of costs.
In reaching this conclusion, I have been influenced by my concern that the potential stress likely to be occasioned to [Z] by a further hearing in regards to the matter outweighs any benefit likely to be derived from the court examining the issue more exhaustively.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and seventy-four (174) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: P Smith

Date: 18 December 2009