Montes & Booker

Case [2020] FCCA 3601

FEDERAL CIRCUIT COURT OF AUSTRALIA

Montes & Booker [2020] FCCA 3601

File number: MLC 11069 of 2020
Judgment of: JUDGE O'SHANNESSY
Date of judgment: 13 November 2020
Catchwords: FAMILY LAW – Interim parenting – schooling – where the child will attend school in 2021 – where parties unable to agree – where mother seeking a school closer to her home – where father seeking school equal distance – whether father’s time should increase.
Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61C.
Cases cited:

Goode & Goode [2006] FLC ¶93-286

Eden & Eden-Proust [2011] FamCAFC 138

Licata & Buxton [2019] FCCA 3181

Hurst & Merritt [2017] FCCA 3102

Norbis v Norbis [1986] FLC ¶91-712

Re G: Children’s Schooling [2000] FamCA 462

Number of paragraphs: 53
Date of hearing: 13 November 2020
Place: Melbourne
Counsel for the Applicant: Mr A Barbayannis
Solicitor for the Applicant: Coote Family Lawyers
Counsel for the Respondent: Mr D Sweeney
Solicitor for the Respondent: Lander & Rogers

ORDERS

MLC 11069 of 2020
BETWEEN:

MR MONTES
Applicant
AND:

MS BOOKER
Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

13 NOVEMBER 2020

THE COURT ORDERS BY CONSENT THAT:

1.The parties have equal shared parental responsibility for the child, X born 2015 (‘X’).

2.For the long summer holidays in 2020/2021, X shall spend time with the parties in alternating blocks of 5 nights with changeover to be as agreed in writing or otherwise at 4pm, commencing 19 December 2020 with the Father to have the first block.

3.For Christmas 2020 and in conjunction with paragraph 2 herein, changeover shall occur on Christmas Eve at 4pm.

4.X spend time with each party for half of each of the school term holidays commencing Term 1, 2021 as follows:

(a)In odd numbered years, from the conclusion of school on the last day of term until 5pm on the middle Saturday with the Mother and from 5pm on the middle Saturday until 5pm on the last day of the holiday period with the Father; and

(b)In even numbered years, from the conclusion of school on the last day of term until 5pm on the middle Saturday with the Father and from 5pm on the middle Saturday until 5pm on the last day of the holiday period with the Mother.

5.The parties and X attend upon Ms A, or another family report writer as agreed between the parties in writing for the preparation of a Family Report with the parties to share the costs of the report equally and such report to be released to the parties as soon as practicable upon completing noting that the that this proceeding is listed for Final Hearing on 4 May 2021.

6.Where changeover does not coincide with the delivery or collection of X to and from childcare/school, changeover is to occur:

(a)At the commencement of the Mother's time, at the Father's residence; and

(b)At the commencement of the Father's time, at the Mother's residence.

IT IS ORDERED, BY THE COURT, UNTIL FURTHER ORDER THAT:

7.X…

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Montes & Booker [2020] FCCA 3601
Case
[2020] FCCA 3601
Decision Date

CaseChat Overview and Summary

This matter concerned interim parenting arrangements for a child, X, born in 2015. The parties, the Mother and the Father, were unable to agree on which school X would attend in 2021, with the Mother favouring a school closer to her residence and the Father preferring a school equidistant from both parties' homes. The dispute also involved whether the Father's time with X should be increased. The proceedings were before Judge O'Shannessy.

The court was required to determine the interim schooling arrangements for X and consider the father's application for an increase in his time with the child. The central legal issue revolved around the best interests of the child, particularly in relation to his education and the practicalities of parental time, given the parties' differing preferences for his schooling.

The court applied the principles of the *Family Law Act 1975* (Cth), including sections relating to parental responsibility and the best interests of the child, referencing *Goode & Goode* [2006] FLC 93-286. The judge acknowledged that parental convenience is a significant factor relating to a child's welfare, especially at preschool and prep age, and found no clear division between parental and child convenience in this instance. The court noted the parties' respective careers and the advantages this provided for the child.

By consent, the parties were ordered to have equal shared parental responsibility for X. The court made orders regarding holiday time for the 2020/2021 summer period and for school term holidays commencing in 2021, with alternating arrangements for odd and even years. X was ordered to live with the Mother, and specific time arrangements were made for X to spend time with the Father on a two-week cycle. Crucially, the court ordered that both parties do all necessary acts to enrol X at Suburb B School. The proceedings were adjourned for a Final Hearing on 4 May 2021, with various directions for filing evidence and case outlines.

Orders

Orders of the court

THE COURT ORDERS BY CONSENT THAT:

1. The parties have equal shared parental responsibility for the child, X born 2015 (‘X’).

2. For the long summer holidays in 2020/2021, X shall spend time with the parties in alternating blocks of 5 nights with changeover to be as agreed in writing or otherwise at 4pm, commencing 19 December 2020 with the Father to have the first block.

3. For Christmas 2020 and in conjunction with paragraph 2 herein, changeover shall occur on Christmas Eve at 4pm.

4. X spend time with each party for half of each of the school term holidays commencing Term 1, 2021 as follows:

(a) In odd numbered years, from the conclusion of school on the last day of term until 5pm on the middle Saturday with the Mother and from 5pm on the middle Saturday until 5pm on the last day of the holiday period with the Father; and

(b) In even numbered years, from the conclusion of school on the last day of term until 5pm on the middle Saturday with the Father and from 5pm on the middle Saturday until 5pm on the last day of the holiday period with the Mother.

5. The parties and X attend upon Ms A, or another family report writer as agreed between the parties in writing for the preparation of a Family Report with the parties to share the costs of the report equally and such report to be released to the parties as soon as practicable upon completing noting that the that this proceeding is listed for Final Hearing on 4 May 2021.

6. Where changeover does not coincide with the delivery or collection of X to and from childcare/school, changeover is to occur:

(a) At the commencement of the Mother's time, at the Father's residence; and

(b) At the commencement of the Father's time, at the Mother's residence.

IT IS ORDERED, BY THE COURT, UNTIL FURTHER ORDER THAT:

7. X live with the Mother.

8. X spend time with the Father as follows:

(a) In week 1 (of a two-week cycle) from the conclusion of childcare or school on Friday (or 3.30pm if not a childcare or school day) until the commencement of childcare or school on Monday (or 9.00am if not a childcare or school day); and

(b) In week 2 (of a two-week cycle) from the conclusion of childcare or school on Wednesday (or 3.30pm if not a childcare or school day) until the commencement of childcare or school on Friday (or 9.00am if not a childcare or school day).

9. Each party do all acts and things and sign all documents necessary to enrol X at Suburb B School

10. The proceedings be adjourned to 4 May 2021 for Final Hearing (with an estimated hearing time of two days) at the Federal Circuit Court of Australia at Melbourne.

11. The matter be listed for a compliance mention by telephone on 26 April 2021 at 9.30am.

12. The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.

13. The Applicant file and serve any Amended Application, a trial affidavit and, if relevant, an updated Financial Statement upon which they seek to rely by no later than 56 days prior to the Final Hearing.

14. The Respondent file and serve any Amended Response, a trial affidavit and, if relevant, an updated Financial Statement upon which they seek to rely by no later than 42 days prior to the Final Hearing.

15. Each of the parties be at liberty to file a short affidavit in reply by no later than 21 days prior to Final Hearing.

16. Each party file and serve a case outline by no later than 7 days prior to trial and provide a copy in Word format to associate.judgeoshannessy@federalcircuitcourt.gov.au.

17. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations of these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

AND THE COURT NOTES THAT:

A. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.

C. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

Background

Background to the litigation

In terms of the material I rely upon, I also should say at this point that I rely upon all of the matters set out in the Family Law Act 1975 (Cth) ('the Act') in particular under Division 7 from Subdivision BA, section 60CA through to the end of that subdivision. I also rely on section 61C, that is, Division 2 of Part VII, being the part dealing with parental responsibility. I also rely on Goode & Goode [2006] FLC 93-286 ('Goode & Goode') and in particular paragraph [82], and I rely to the extent relevant on all of the relevant provisions of section 60CC of the Act. BACKGROUND The Mother is 37 years of age and is a highly educated and trained professional. The Father is 39 years of age and would appear to be a highly educated and trained professional. Both are significantly successful in their chosen careers, and given their ages and their success so far, I infer that they will both continue to work very hard at continuing to advance themselves in their respective careers. Those are matters that are not just important to the parties but are also important to the child. As counsel for the Father set out, the child is very lucky to have parents who have the advantages in life that they have. The child was born in 2015, so he is five at the time of this hearing and these orders before me, but very significantly for me, it means he will be turning six in 2021 when he will have just started prep. The child as at the time of the hearing is attending Suburb G pre-school three days per week. The parties’ commenced cohabitation in 2010, married in 2014 and separated in August 2016. It is significant that it is common ground that the Father's mother provided significant assistance to the parties when they were together and living in F City. With devotion to a grandchild that can only be admired and acknowledged, the Father's mother moved to live with the parties in F City for six months to assist them in the care for the child while they each advanced their respective careers. That involvement of the paternal grandmother has continued to date. The living arrangements for the parties by the time that the hearing came about before me was that the Mother lived in Suburb G, hence the child attended a Suburb G Early Learning Centre, and the Father lived in Suburb H. The Father's living in Suburb H was no doubt partly, but probably not entirely, inspired by the fact that he works in the city. The Mother living in Suburb G was settled or relatively settled until 31 August. I do not have evidence of the dynamics of the Mother's application for employment and actual letters of acceptance. The status quo in terms of the parties' intentions of where the child would go to school in 2021 was not settled. The Mother had a preference for Suburb G Primary School, and the Father had a preference for Suburb I Primary School, close to where he lived. The preference for each of them, I infer, was related to their own convenience and hence their view of the convenience of the child. I should say at the moment that I am not critical of either parent considering their own convenience because I find or I observe that the convenience of a parent with a child in preschool or prep is a significant matter that relates to the welfare of that child, that I do not see any clear or stark division between convenience for a parent and convenience for a child. So there was not a settled arrangement as to the intended school.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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