Montes & Booker
[2020] FCCA 3601
•13 November 2020
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
ApplicantAND: 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 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 [email protected].
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).
EX TEMPORE
REASONS FOR JUDGMENTJUDGE O’SHANNESSY
INTRODUCTION
This is a matter where, by the time submissions finished on 11 November 2020, the matters where the parties required my assistance came down to two issues.
(a)The time that X (‘the child’), their son, would spend with each of the parents between now and a final hearing that I am able to provide in late May 2021. That issue is of importance between the parties, but relative to the other differences, perhaps less significant and easier to resolve. Each party altered their case following my advice to them that I had a May 2021 hearing available. They had otherwise sensibly anticipated a final hearing being listed much later in the year or the following year. It then came down to the issue of whether the existing alternate weekend arrangement should be extended to the Monday morning.
(b)The other important issue which has real significance for the child was which school the child would commence school at in the 2021 school year. That decision came down by about halfway through the hearing to a choice between two schools where there was a confirmed place, Suburb B School and Suburb C School.
The matter came before me in the first return duty list, where I had a number of matters to consider, and after submissions, I adjourned the matter to today to enable me to consider some of the authorities to which I was helpfully referred. Today is another duty list day before me. I only have this matter and four other contested interim matters and I have still got two matters to go. That will necessarily impact on the amount of time I have available to provide these reasons.
Rather than have the parties listen excruciatingly as I wander through the circumstances and reasons, I propose to tell them at the start what my rulings will be, and I propose to direct that counsel bring in a minute to give effect to those rulings, together with the other matters that were previously in issue or may have been in issue but were resolved between them. One of those matters included the provision of a family report in time. My associate will provide in those minutes the time for the filing of trial material.
My decision is that the child's time with his Father should be extended from the Sunday evening to the Monday morning, and my decision is that the child should start school at Suburb B School. They are the two significant matters that were in dispute, and these are my short reasons.
I should indicate I rely on all of the material that the parties filed and, in addition, I rely on the documents that were tendered before me:
(a)H1 being the email from Ms D (principal of Suburb C School) to the Father that had a second paragraph in it that needed some further evidence;
(b)The document that I am going to describe as C1, which was the marked up minute of orders that each party sought at the commencement of the hearing; and
(c)W1, which is the email significantly of Wednesday, 11 November at 1.47pm from the office and administration manager of Suburb B School confirming a place for the child.
Just on the material, I note that there was a mention that documents relating to the purchase of the home, the offer that had been accepted that day would be tendered. They have not been. I do not require them to be. I accept what Mr Sweeney has told me on instructions that on the morning of the hearing or during the morning of the hearing, the Mother's offer or the offer to her and her partner for a property in the suburb close to Suburb B School was accepted.
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.
By August 2020, the new school year is approaching without agreement as to where the child, now five, approaching six, would go to school. On 28 August 2020, the Father sent an email requesting that the school options be discussed, and he confirmed that Suburb I Primary School was his choice. At the time of that email, the context was the Father living in Suburb H and the Mother living in Suburb G. The response of the Mother was, “my preference for X's school will be local to our new address” and by that, the Mother was alerting the Father that they were moving.
On 14 September 2020, the Father sent an email most reasonable and, I suspect, he was becoming increasingly agitated that it is now September and there is no agreement or even program for discussion of where the child would go to school. The most significant matter is that on 31 August, the Father received a reply to his earlier email, indicating that the Mother had accepted a new job at Employer J and that they, that is, her and her partner with whom she had re-partnered following separation, were intending to move closer to Employer J. It is also important that I note that the Mother has re-partnered and has from that relationship a child born in 2020, and for all practical purposes, by the time the child starts school, that child will not have had her first birthday.
In addition to the family constellation and it will become apparent why it is significant later, the Mother's new partner has a child, K. I was told during the course of the hearing and I accept that K is eight, in grade 2 and, most significantly, he attends Suburb C School, being the school that the Father now seeks to have the child attend.
There were then from the Father's point of view efforts to engage the Mother in discussion about which school the child should attend, taking on board the moving and the knowledge that the Mother would be working from Employer J, which for those who are not reading this in Melbourne is in Suburb L. Suburb L is a suburb a fair hike from Suburb G and to the south and the east and a fair hike from Suburb H and to the south and the east of Suburb H in what might be called the southeast area of Melbourne but not the bayside area.
The Father sent a number of emails seeking to ensure that the child is engaged with a school. The Father is critical of the Mother's vagueness in her replies. On 22 September, she replied that until she and her partner had decided where they were going to move to, there was no point discussing schools:
“We cannot move forward until this lockdown has ended. I will let you know when we do. Further, I do not agree to the changes to X's schedule that you have proposed”.
(see: paragraph 18(e) of the Father’s affidavit filed 12 October 2020).
That is significant because the Father was not only agitating about the school. He was agitating for a change in the child's living arrangements. That is the background.
Taking into account Goode & Goode, I am to determine the matter to the extent I can, this being an interim hearing, by reference to common ground or undisputed facts. If it is necessary, I am not to shy away from undisputed facts, for example, where they may indicate and most significantly where they may indicate a risk to the welfare of the child. Fortunately, this is not one of those cases. There are no risks to the welfare of the child involved.
I will just briefly note in terms of Goode & Goode at paragraph [68], where it is said that the Court will look at less contentious matters, such as agreed facts, and would have regard to the care arrangements prior to separation and the current circumstances of the parties and their children and the parties' respective proposals for the future and that it remains the case that I must take into account the children's best interests. In regard to paragraph [72] of Goode & Goode, the Court observes:
“This means where there is a status quo or well-settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.”
It goes on to say at [73]:
“That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds…”
THE SPEND TIME ARRANGEMENTS
I will deal firstly now, if I may, for the reasons why, in my view, it is in the child's best interests for his time to move to include the Sunday night. I should first identify what the care arrangement for the child has been since about one year of age over the last four years. The Mother describes the arrangements which were common ground at paragraph [8] of her affidavit filed 5 November 2020, which was that in week 1, from 4.00pm Friday until 4.00pm Sunday, and in week 2, from 8.00am Wednesday until the commencement of kindergarten on Friday with the Father.
This effectively means the child spends two nights with his Father one week and two nights the next week. It means that he has contact with his Father over three days one week, that is, the Friday, Saturday and Sunday, and three days the following week, being the Wednesday, Thursday and Friday morning. So he has contact with his Father for six out of each 14 days but only four out of 14 nights. When I say “only”, I do not mean that in any pejorative sense. It is on any view, given the child's age at the time that this arrangement was put in place, one that is generous to the Father's involvement at that time in the child’s life.
The evidence appears to be that that regime progressed satisfactorily for the child until this time, and what is significant for me is that that regime was significant when he was one, two, three, four and he is now not quite six and ready to start school. Some educators would commend the parents for their decision to start the child when he is almost six rather than starting him at school when he is just five, notwithstanding how convenient that might have been to their careers to have him starting at school when he was four, just turning five but that is not a matter that weighs with me other than it suggests to me that both parents have been pretty sensible in dealing with the child's welfare up to this point in time.
It is also common ground that there have been times when the child would spend longer than the two nights in a row with his Father and, indeed, he spent a more extended time on at least one occasion during a holiday period, although the Mother contends that the length of that time was of such duration and my recollection in the order of about eight nights, that the child was unsettled thereafter and such a long period was not a good idea.
In the initial proposals of the parents, the Mother's proposal, if I can just go to that minute, which conveniently and I am indebted to the lawyers for having it marked up, the Mother's proposal was that until the commencement of school term, the child should stay in the existing regime and that then upon term 1, that is, what I will call for shorthand the two plus two, but then upon commencing term 1, that should move from a Friday to commencement of school Monday, which would be school to school, but in the other week, it should become from Thursday to Friday. It would remain overall a four night regime, but instead of two plus two, it would move to three plus one.
I also note that there is agreement by the time the matter came before me that the child spending the long summer holidays commencing very soon should be in alternating blocks for five nights in a time. I am encouraged by the parties' capacity to agree and encouraged by the circumstances where they have been able to agree on that, but it indicates that both parties are comfortable with the child spending that amount of time in the other party's care.
In those circumstances, I am of the view that with the child starting prep at the end of January and in February, I am not attracted to a change of the child's living arrangements as he starts prep simply because of how demanding the prep year and the commencement of prep can be. In my view, it would be better to make any change that is in his interests at this point in time so that he is a little bit settled rather than starting the Friday to Monday simultaneously with school.
As the matter came on before me, the Father's counsel changed his position sensibly to only press, given the trial in May, for a change to the arrangements that have been in place for four years, to press for those arrangements to be from the Monday to the Friday but leaving the other two days as they were, in other words, a movement from a four night per fortnight to a five night per fortnight arrangement. Given the hearing in May, the Mother's position changed to be that the living arrangements should remain as they are until the trial in May, and I am not critical of the Mother for taking that position. However, it is not the law that I simply follow what the status quo is at this point in time. I am required to deal with the best interests of the child according to the law and the evidence that I have at this time.
I do not need to follow the Goode & Goode paragraph [82] pathway considering the presumption of equal time. I note that the parties have agreed that there should be at this time an order for equal shared parental responsibility, and I am sure that will be included in the minute that the lawyers will draw, but it is unnecessary to deal with that because the Father has not pressed an equal shared care arrangement. In terms of the extent to which I need to address section 60CC matters individually, I note in the matter of Eden & Eden-Proust [2011] FamCAFC 138 (‘Eden & Eden-Proust’), an appeal decision by the late Justice Thackray, a judge that was held in high regard by all who had the benefit of appearing before him or having their matters determined by him, but in dealing with that matter, he said at [69]:
“I recognise that in arriving at my decision I have not made specific reference to the various factors set out in 60CC(2) and (3), which the Act requires me to take into account in determining the child's best interests. No attempt was made at the hearing below or on appeal to relate the various arguments to specific provisions of the Act, save for the reference to 60CC(3)(m), any other fact or circumstances. I have followed suit in giving my reasons, but I have nevertheless been mindful of those of the 60CC matters which are relevant.”
That is the approach that I intend to take in these reasons. So I am comfortable that given both parties' view about the time that the child can spend with his Father that it is in his interests at five, shortly before he goes to school that the child and his Father should have the benefit of spending what I will call an extended weekend together. The issue of returning the child, particularly a child of five, on a Sunday evening, it is simply notorious that that impacts significantly on the benefit of that parent and child to enjoy the weekend to its fullest, and I note that in daylight saving time, 4.00pm is really 3.00pm in the other time. Those are my reasons in regard to the change in the time.
THE 2021 SCHOOL ARRANGEMENT
Coming to the school arrangement, I want to engage, if I can, with the arguments or submissions of both parties. I should say that the submissions of each party painted to me a picture where their case was powerful and almost overwhelming. I found the competing interests as to where the child should go to school to be a significantly closer decision and a fine ball exercise.
Dealing with the essential submissions of the Father and I am not going to elaborate all of them but I am going to elaborate some of them simply because of the time constraints. The result is that following the advice late in the piece of the Mother’s change of work to the Employer J, the Father chose Suburb C School as providing structure, certainty and routine. There was another matter of significance that he relied upon, and that was that from his perspective, the school at Suburb B, if not equidistant, was approximately in time an equal amount of travelling time from where the Mother proposed to work and from where he proposed to continue to live. He indicated that he worked in the city, and hence living in Suburb H, it was sensible for him.
He also pointed to the circumstance, perhaps unusual in a school dispute, that the other child that shares some time in the Mother's home (and I was told during the hearing and I accept that it is every Friday evening after school until a time on the Saturday afternoon or evening, that is, the overnight Friday night, but in every week) is in grade 2 and has a good relationship with X; hence, in my view, it was incumbent upon the Father to consider Suburb C School even at the time that he did not have an actual proposal from the Mother, he being alert to and aware that the Mother's stepchild from her relationship with her new partner attended that school.
It must have loomed upfront and centre in his mind to consider it, at least, as an option. Considerable weight was put upon that. I will not recount the evidence of Ms M, but by the end of that evidence, it became clear that because of the circumstance of the stepsibling relationship, in the event of either a consent of the parties or a court order, a place would be available for the child starting the next school year, and I so find.
The other matters that were pointed to were the involvement of the Father's family, particularly the grandmother, who lived at Suburb N, and his Father who was involved, who lived at Suburb O, and hence the submission was it would make it easier for them to be involved in the child's life with Suburb C School and to assist not only the Father, but the parties in the necessary arrangements. Essentially, the Father's case was that by choosing Suburb C School, he was attempting to accommodate the convenience of both of the parties and hence the convenience and best interests of the child.
One issue for the Father was that his, expressed in affidavit, concern that the Mother's choice of the school was an effort that would prejudice the continued involvement of in particular his mother and make it more difficult for his continued involvement in the child's life. I find that if the child is enrolled at the Suburb C School as the Father seeks, it is going to be substantially more inconvenient for the Mother on a day-to-day basis. I find that if the child is enrolled at the Suburb S school, it is going to be substantially more inconvenient for the Father.
I have looked at a Google map of Melbourne, and really, you only have to look at southeast Melbourne, and the map that I have looked at, I have not provided to the parties but the parties addressed me on the basis of being a ‘Melbournite’ and I would have a rough idea of the geography, but nonetheless, I got out a Google map to assist me.
The reality is travelling for the Mother from the home that she has now purchased, she would need to travel to the school if she was going there, then likely head up P Road or Q Road to end up at Employer J. The Father travelling to Suburb C School would have a number of alternatives to him, one of which would be to use the freeway and get off at R Road. There are other ways that would be advantageous for him to do it. By any view, it is a big hike from Suburb H to Suburb B School and then to return to the city for work or the reverse on the days that the Father would be collecting the child were he to be doing it himself.
The simple position is of this being an interim hearing, I am alert to how many things about these parties I do not know about, and I do not know how many things I do not know about. I do not mean to channel Donald Rumsfeld, but that is the simple reality. I do not know how many things I do not know. These proceedings were brought on with real urgency, and I had to deal with them in urgency. I am unable to find that the Mother has acted with the intention of making the Father's time more difficult. Whether or not she has so acted, I am unable to say that she has not, but I am certainly unable to find that she has. On one view, she has agreed to what would be described as generous time when the child was one or two.
The other issue is that the Father has a viable case, not certain, but a viable case on the face of it, that is all, I do not put it any higher than that, for an ultimate conclusion of equal time as he seeks. His application is in the 2020 year to move to a six-eight arrangement and then in 2021 to move to a seven-seven arrangement. At this point in time, I am simply unable to gauge whether that is a case that will be successful or not or what other variation may occur on that. However, the other side of that coin is I am unable to determine that it will not be successful.
I raised with counsel involved my anxiety of the decision that I was making in regard to the school being determinative of or having a very significant impact upon those proceedings in May, and having been a family lawyer, I am alert to the potential strategic considerations that each party may consider. However, I am simply unable to find that the Father pursues Suburb C School for the reason to promote his equal time case when we get to it. I am unable to find that the Mother has chosen to live in Suburb S for the purpose of making that case more difficult.
When I raised that, the Mother's counsel raised with me what, perhaps, should have been obvious to me, that this is an interim decision, and whatever decision I make in these interim proceedings about the school would be able to be changed. This is an order until further order. I note that when the parents are together, parents move children's schools for all sorts of reasons, including that they want to go to a private one, they want to go to a better house in another suburb or they want to move for work. When parties are parents together, changing a school seems to be a practical consideration rather than one with the angst that is involved in these proceedings.
I have had a look at the authorities to which Mr Sweeney has referred me and starting with the decision of Re G: Children’s Schooling [2000] FamCA 462, and I note paragraph [65] that I was taken to. I will not recite it. I note in particular paragraph [84], and I note paragraph [92] about the weight to be given to travel. I also note the issue that is raised of the quote of Kirby J at paragraph 9.66 and 9.67.
I was also referred to the decision of Licata & Buxton [2019] FCCA 3181 a decision that I found particularly helpful, and the parties would find at paragraphs [109] to [115] a very helpful up-to-date summary of authorities that deal with this issue. The authorities referred to there lead me back to the case that I referred to before of Eden & Eden-Proust. I note there one of the reasons at paragraph [68] of Justice Thackray, he determining keeping the child at a particular school, at point 6:
6.The fact that the child would attend the same school as the child L if he remains at S Primary is of some importance for two reasons. First, because of the potential (admittedly slight) benefit associated with attending the same school as a half-sibling, (in this case, it would be the stepchild). Secondly, and in my view, more significantly, because of the convenience to the Mother of not having children at two different schools.
In this case, the Mother embraces having two children in her home every second weekend that attend different schools. It was the Mother's submissions that the circumstance of the child at the Suburb C School was not of any significance in the exercise of my discretion. I found it to be significant and whether or not it would have been the Father's first choice or ultimately his choice, he is to be commended for taking that into account. In many families, that school there would have been one that both parents would have considered at the forefront of their mind. So I did find that it was significant.
However, what I am left with on the state of the authorities, as a guide, and I do not take it to be any more than a guide as to the practicalities on a case by case basis, and I am even hesitant about relying upon the convenience of the parent with whom the child spends the predominance of time as being a Norbis v Norbis [1986] FLC ¶91-712 type guideline. It is certainly a guideline, but I do not find that it is binding on me. It is merely a matter of wisdom. However, between when the child starts school and the trial, the child will be doing more school pickups and drop-offs from the Mother's home, and hence I find on balance there is an advantage to Suburb B School.
On the one hand, it could be said, well, that is only for four months of school till we get to the trial. I have listed the matter at a time when I hope to be able to accommodate the matter. However, I cannot guarantee to the parties that I would be able to hear the matter on that day. I would hope to and I will endeavour to but as all of the lawyers involved will know, it simply is the real reality that the court may be part-heard in hearing other matters before I get to that case, in which case it may not be able to be heard.
The other aspect is it would be unlikely if the matter were to run on all issues that there would be an ex tempore judgment immediately at the conclusion of the case, and the parties could reasonably expect me to reserve my reasons to consider the matter and get time to actually write the judgment, which would be likely to take a month or two or even three, hence the reality is it may not be until May 2021 or it may be longer.
The other matter that bears upon me significantly in my decision is my own view of the importance of the locality issue. There are real advantages, in my view, to Suburb C School. However, at the end of the day, that would mean that the child would be starting school at a school that is not close to where either his Mother or his Father is living. It is not of the most concern. Many parents live in one suburb and send their children to a private school many suburbs away, and not only do they do that, they do that thinking it is in the best interests of their children and pay a lot extra to do it. However, in my view, there is an advantage to the child being able to start prep with a cohort of five and six year olds living nearby to where he lives.
I note that this is not a case where the Mother's house will be next door to or even a hundred yards or even a couple of hundred yards. It is something in the order, Mr Sweeney told me, of two to three kilometres away. It is not walking distance. Nonetheless, in my view, it is sufficiently close that it would enable the Mother and, indeed, the Father on the times that he is there to mix and meet other parents and children that will be in that local cohort. It is an advantage, in my view, for a child to go to a school in the area to where the parents or a party lives, and that is the matter which in the exercise of my discretion and taking into account all of those matters sways me most significantly.
I do not dismiss the practical considerations that the Father raises, and, indeed, there is some authority to say that in some cases, a school halfway between the parents’ homes may be of assistance, and that decision is Hurst & Merritt [2017] FCCA 3102, one of the decisions cited by my brother Judge Kelly, where Judge Monahan observed at [31]:
The option of enrolling the child in a school located at a place midpoint between the parties' residences or close to the City of Sydney was not proposed or sought by either party, despite that being an obvious option. It may have enabled the current shared care arrangement to continue.
However, they are my reasons in the time I have available to set out those matters. I should indicate that the criticism of the Mother that she was tardy in dealing with the school issue and on one view she can be criticised for the slowness with which she came to inform the Father of the school, it was only actually during the hearing that the Mother was able to tell the Father, “It is Suburb B School that I want.” It was only when the Mother filed her material for this hearing, which was merely days beforehand, that is, on 5 November, where she set out that her and her partner had, in fact, inspected properties in Suburb S, Suburb T, Suburb U and Suburb V, and she also set out that she was very impressed with Suburb B School. That was shortly before the hearing. This is an interim hearing, and I am simply unable to make a finding that she was tardy.
The other side to the coin is that we are living in COVID-19 times. It was only, on one view, at the end of August that the Mother and I assuming that the Mother has promptly informed the Father of her intention to relocate relating to her job, it is only at the end of August she learns of the job, we are in lockdown from then, and the matter was brought on for urgency simply to determine the school year. The view is also open that, in fact, the Mother moved heaven and earth by the hearing before me to be able to have made the determination that she had located a particular house to live, not an area, and a particular school, not an area.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 22 January 2021
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