MV & AC - [2005] FMCAfam 59

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MV & AC

[2005] FMCAfam 59

FAMILY LAW – Parenting – removal of child from school – child aged 4.

Family Law Act 1975

Applicant:

Respondent:

File No:

PAM 1052 of 2002

Delivered on:

21 February 2005

Delivered at:

Parramatta

Hearing date:

18 February 2005

Judgment of:

Sexton FM

REPRESENTATION

Counsel for the Applicant:

Mr G Kenny

Solicitors for the Applicant:

Harman & Co.

Counsel for the Respondent:

Ms M De Vere

Solicitors for the Respondent:

Galland Elder Lulham

ORDERS

That the father’s interim application for an order to restrain the mother from enrolling or continuing the enrolment of the child JRV born 31 July 2000 at Tarago Public School or any other school until the commencement of the 2006 school year, be dismissed.
That the balance of the father’s application for interim and final orders be transferred to the Family Court at Parramatta.
The father’s application be listed for directions before a Deputy Registrar at 9.45 a.m. on Thursday 3 March 2005.

NOTATION:

The Court notes the parties are giving consideration to referring the matter to the Children’s Cases Programme in the Family Court’s Parramatta Registry.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 1052 of 2002

Applicant

And

Respondent

REASONS FOR JUDGMENT

Short history of proceedings

The parties have been involved in litigation in relation to parenting issues since shortly after their separation in January 2001. It is not necessary for me to detail the full litigation history in these reasons. The orders presently in force were made by consent on 3 October 2002 during the course of a hearing before His Honour Justice Le Poer Trench at the Family Court in this Registry. After a further hearing in June 2004 amendments were made in relation to some orders concerning specific issues.
There is one child of the relationship JRV born 31 July 2000.
The October 2002 orders provided for the parties to share equally the powers duty authority and responsibility for JRV’s long term care welfare and development. The mother was required to move to the Greater Sydney Metropolitan area or the Greater Goulburn area by

31 January 2003. If she failed to comply with that order, the orders provided for JRV to live with the father. The mother and her fiancé [now her husband] moved to the town of Tarago, an approximately two and half hour drive from the Penrith area of Sydney where the father was residing and continues to reside.
Once the mother relocated, Order 14 of the October 2002 orders provided for JRV to spend four days with his father and four days with his mother in every 8 day cycle until “the child commences school.” Order 17 of the Orders provided for holiday contact for JRV with each parent for the period 2003 until 2005 inclusive and for JRV to spend no longer than 14 days without seeing each parent. Order 18 provided for Orders 14 and 17 to cease when JRV commenced school in 2006 and for JRV then to reside with his mother and to have alternate weekend and school holiday contact with his father. Once JRV started school, JRV’s contact with his father was to coincide with periods the father’s child from a previous relationship, KR aged 9, was with him. The Orders of October 2002 were varied by order of His Honour Justice Rowlands on 24 June 2004 in relation to transport arrangements. It was not in dispute between the parties that the father is presently doing most of the travelling to collect and deliver JRV for changeover.
The mother has enrolled JRV in Tarago Public School and JRV commenced school at the beginning of this school year. The father filed an application in this Court on 8 February 2005 and was granted short service. The matter was returnable before me in the duty list on Friday 18 February 2005. The father sought interim orders on an urgent basis which included an order that the mother be restrained from continuing JRV’s enrolment at Tarago Public School. The father sought a further interim order that JRV have additional holiday contact with him during 2005. That application has not yet been heard. On a final basis the father has applied for orders that JRV live with him and have contact with the mother.
The mother in her Response filed 17 February 2005 asked that the father’s application for final orders be dismissed, and on an interim basis that the proceedings be transferred to the Canberra Registry of this Court. Those matters are yet to be heard and determined.
By way of background, the parties were in a relationship from December 1999 until January 2001. JRV is the only child of the relationship, born 31 July 2000, now four and half years of age. The father is 37 years of age and lives alone in the Penrith area of Sydney. He has a daughter KR from a previous relationship aged 9 years. The mother has married GC and they have two children, CC aged 2 and MC aged 5 months.
The father works as a fireman 4 days on and 4 days off in a rotating roster. The mother works two 12 hour shifts each week as a police officer. Her husband is the police officer in charge of Tarago police station. Until JRV started school in 2005, when with the mother, JRV attended Tarago Pre-school on 2 or 3 days during the week.
Since at least October 2002 orders [and the father says from 2001] JRV has been in what can be described as a shared parenting arrangement, spending 4 days with each parent in each 8 day cycle and holiday time with each parent. The parties live 2½ hours apart.

Issue

The father opposed JRV being at school in 2005 and said it was clearly contemplated in the October 2002 orders that JRV not start school until 2006. He wanted JRV removed from school and for the present shared care arrangement to continue. The question for the Court was whether JRV should be removed from school in all the circumstances of this case.

The relevant law – parenting

Parenting orders arise in proceedings conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to Section 65E which provides that a court must regard the best interests of the child as the paramount consideration.
In deciding the parenting arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in Section 68F(2) of the Act. Its subsections set out a list of matters the court must consider to the extent each subsection is relevant to the particular case. I have considered each of those subsections as far as they are relevant to the decision I must make.

Evidence and findings

In relation to the interim proceedings the father relied on:
·His affidavit filed 8 February 2005.
In relation to the interim proceedings the mother relied on:
·Her affidavit filed 17 February 2005.
·The affidavit of NK, solicitor, filed 17 February 2005.
Both parties were represented. As is usual in interim proceedings of this kind, neither party gave oral evidence. The father was present at the hearing. The mother was not present.
In his affidavit filed 8 February 2005 the father deposed to the fact that he and the mother expected JRV to start school at the commencement of 2006, at age 5 and half. I am satisfied on the evidence before me that this was the case at least until October last year. Orders 17 and 18 of orders made in October 2002 clearly contemplate JRV starting school in 2006. The father’s counsel urged me to retain the integrity of those orders in relation to the date for JRV to start school. It is apparent from the final orders the father seeks, that he does not want to retain the orders in relation to residence and contact made in October 2002 once JRV does start school.
The existing orders provide for the parties to share equally the powers, duty, authority and responsibility for JRV’s long term care welfare and development. The father argued that the mother did not comply with this order in relation to the decision for JRV to start school in 2005, a year earlier than they had earlier agreed. The mother’s counsel argued to the contrary. She said the father had been properly consulted in relation to the decision though conceded that the mother had not obtained the father’s consent to the change in start date. Counsel for the mother submitted that the mother kept the father fully informed of the steps she was taking towards JRV starting school in 2005 from October 2004 onwards.
Neither the mother nor the father are legally restrained by the present orders from enrolling JRV in a school prior to 2006.
The father deposes to a number of reasons why JRV should not remain at Tarago Public School:
a)The school is very small, with an estimated 26 enrolments this year.
b)JRV is not old enough to start school, being born on the last day a child is eligible to start school in 2005. He needs another year to develop intellectually and emotionally before starting school.
c)The mother did not consult him about the change in commencement date from 2006 to 2005.
d)He made it clear to the mother he did not agree to JRV starting school in 2005.
e)He was not consulted by the mother regarding JRV attending the program with Wendy Allen [an assessment programme regarding preparation for school].
f)He was not provided with correspondence from Tarago Pre-School about their views on JRV starting school in 2005.
g)JRV’s separation anxiety, his relationships with each parent and his schooling have not been properly assessed by a Court counsellor.
h)JRV will have significantly less contact with his father with whom he has a strong and important relationship.
i)JRV has a stronger relationship with him than with anyone else.
j)JRV has been exhibiting separation anxiety from him and this would be made worse if JRV was only able to spend alternate weekends with him.
k)Any benefits JRV would achieve by attending school this year are outweighed by the possible loss of his close relationship with his father.
I have decided the mother’s approach to the decision making process as to when JRV should start school is open to criticism. The decision as to when JRV should start school is certainly a long term decision. The parties did not discuss together in a cooperative and collaborative manner when JRV should start school.
The mother did, however, tell the father of her intentions in relation to him starting school in 2005. She wrote to the father in October 2004 [Annexure B to the father’s affidavit] to advise him that JRV’s pre-school teacher believed JRV was ready to start school and recommended seeking the services of a specialist to assess JRV as to his suitability. The mother advised the father of the name of the specialist, a WA from the Goulburn & District Children’s Services Association. The mother sought the father’s cooperation in relation to JRV being enrolled in the “Preparation for School programme” in relation to changing contact times. The mother said she intended to enrol JRV at school if the assessment recommended his attendance. The mother advised the father of the dates for the Tarago Public School Orientation Programme.
The mother informed the father of the steps she was taking, but did not discuss with him the merits or otherwise of those steps with him before taking them. I therefore accept the father’s submission that he was not consulted in the manner which would be ideal in these circumstances, particularly given the change to contact arrangements which flowed if JRV started school. However, I also accept counsel for the mother’s submission that the father took no steps himself to involve himself in the decision making process, an obligation he had as JRV’s parent. Children’s circumstances change and their needs change and given the mother’s advice to him that the pre-school was recommending JRV start school in 2005, the father had a responsibility to consider the recommendation and whether it was best for JRV. However, the way the parties conducted themselves in relation to this decision is not determinative of the issue I must decide.
In relation to JRV’s readiness for school or otherwise, I have some evidence before me. Annexure F of the father’s affidavit is the Review for JRV prepared by WA of the Goulburn and District Children’s Services Association dated 12 December 2004. The assessment found JRV’s fine motor and motor planning skills needed further assessment but given his other skills, it was recommended he start school in 2005.
The decision as to when JRV was to start school should have been made by both his parents, not by a pre-school teacher or by Ms WA but it was certainly proper for the mother to have given careful consideration to those opinions. It was submitted by the mother’s counsel that as the parties are probably incapable of reaching agreement in relation to any aspect of JRV’s welfare, the mother did her best by keeping the father informed of the steps she was taking towards starting JRV at school in 2005. It was submitted the mother did not simply accept the recommendation of JRV’s pre-school teacher, but sought a formal assessment of his suitability for school. The mother annexed to her affidavit a copy of JRV’s report from the Tarago Pre-School which recommended him starting school in 2005. It said in part:
As JRV displays some anxiety issues due to family breakdown, we feel that it would be advantageous for him to commence school in 2005. He has formed a strong bond and friendships with his peers who will also be commencing school in 2005.
The mother also annexed a short report from the principal of Tarago Public School dated 14 February 2005 which said JRV was coping with his introduction to school.
It is not possible for me to make a finding on the limited evidence before me as to whether it is in JRV’s best interests to have started school in 2005 or 2006. There is some evidence before me to support the view that he was ready to start school this year. I can make no finding that starting JRV in 2005 was the best decision for JRV’s long term or short term welfare.
As previously noted, it is manifestly clear from the 2002 orders that at that time the parties believed JRV would start school in 2006. The mother changed her mind at some point, at least by October 2004. She contacted the father by letter in October 2004 to tell him what she was doing in relation to JRV possibly starting in 2005. On 21 November 2005 in a discussion by telephone with the father, the mother said JRV would not be starting school in 2005 [paras 21 and 22 of the father’s affidavit]. But in mid-December 2004 a further letter to the father made it clear JRV would be starting school in 2005.
The father took no steps to prevent JRV starting school or to participate in the decision-making process on this issue. There is no evidence before me that he discussed the issue with JRV’s pre-school teacher, with WA of the assessment team or with the Principal of Tarago Public School which it was open for him to do. The father commenced these proceedings after the 2005 school term had started.
I am satisfied on the evidence that the father opposed JRV starting school and communicated his opposition to the mother. I accept that the reasons he has given for his opposition to JRV starting in 2005, are genuine, whether well founded or not. I am satisfied that his main concern is the loss of time JRV will spend with him, and how that might impact on their relationship. It was submitted for the father that JRV needs his father and to leave JRV at school this year with the consequential diminution in the time JRV spends with his father this year, may have adverse consequences for his relationship with his father. I accept that this is a relevant concern which I have taken into account in reaching my decision.
I must decide what is in JRV’s best interests. That is the paramount consideration. In considering the Section 68F(2) factors I have given particular consideration to subsection (c)(g)(h) and (k).
There is no dispute between the parties that JRV is strongly attached to them both. I am persuaded that both parties believe they are acting in JRV’s best interests in taking the positions they do. Both parents are aware that JRV has been exhibiting signs of distress in relation to the present parenting arrangements. The father deposed to a conversation in November last year with the mother when the issue of JRV’s “separation anxiety” was raised. The present arrangement involves a 2½ hour trip for JRV every 4 days (except during his holiday periods with each parent). The father deposed to JRV being very distressed when he has to go back to the mother and strong resistance to being dressed and being put in the car for the trip. There is no evidence from the mother as to how JRV behaves when he has to leave her to spend time with the father. The father asked me to accept that JRV’s clear resistance to the move from his father to his mother at times of changeover meant JRV wants to stay with his father. That may or may not be so. Without expert evidence, I can make no findings as to what JRV’s behaviour might mean in terms of his attachments to each parent. I am satisfied however, that it is highly likely that JRV is adversely affected by being subjected to a long running and highly acrimonious dispute between his parents which has been going on for most of his short life. JRV is in a highly stressful position.
I must weigh the benefits to JRV of him continuing to spend 4 days each 8 days with his father against the benefits of him staying at school. If he is removed from his school, JRV will continue for the remainder of the year to spend half his time with his father. This benefit must be weighed against the fact that this arrangement involves JRV in a two and half hour trip every four days and the father’s evidence that JRV has been unsettled. Against the benefits to JRV of continuing to spend a lot of time with his father, are the benefits to JRV of remaining in the school environment, the school term being substantially underway. There is evidence from educational professionals that JRV was ready to start school. Starting school is a big step for a young child, and JRV has taken that step. The evidence is he is managing well. In balancing these factors, I have decided JRV’s best interests are served at this stage by leaving him at school.
I have raised with the legal representatives of both parties the possibility of this matter being referred to the Family Court’s Children’s Cases Programme. If the parties consent to that course, the matter will be dealt with expeditiously. If the outstanding matters between the parties are heard in the usual way the mother’s legal representative believes the matter may take in excess of two days. For both these reasons, I have decided to refer the matter to the Family Court in Parramatta.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Sexton FM.

Associate: Collette McFawn

Date: 21 February 2005