N and N
[2003] FMCAfam 153
•7 May 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| N & N | [2003] FMCAfam 153 |
| FAMILY LAW – Children – specific issues – child’s schooling. |
Family Law Act 1975, s.60B
Re G: Children’s Schooling (2000) 26 Fam LR 143; FLC 93-025
| Applicant: | GZN |
| Respondent: | APN |
| File No: | PAM 975 of 2003 |
| Delivered on: | 7 May 2003 |
| Delivered at: | Parramatta |
| Hearing date: | 5 May 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Allen |
| Solicitors for the Applicant: | Firmstone & Associates |
| The Respondent: | In person |
| Children’s Representative: | Mr Gonzales, Levy Partners |
ORDERS
The child ZYN a child of the marriage born 31 July 1998 is to continue to attend the A Z College at A.
The Applicant mother is to do all things necessary to ensure that the said child attends school regularly.
Within seven (7) days the Applicant mother is to authorise the Educational Director or other proper officer of the said A Z College to provide to the Respondent father at his expense copies of all school reports relating to the said child and all newsletter, bulletins, information about school photographs and all other information provided to parents of children attending the said school.
All further affidavits filed in these proceedings must comply with Rules 2.02 and 2.04 in that they must bear the number PAM 875 of 2003 and be headed FEDERAL MAGISTRATES COURT OF AUSTRALIA At Parramatta.
Within 7 days the Applicant is to file:
(a)a copy of the parties’ marriage certificate; or
(b)a sealed copy of the decree absolute dissolving the parties’ marriage; or
(c)a copy of the particulars of birth of each of the children ZYN born 31 July 1998 and RAN born 12 March 1997.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 875 of 2003
| GZN |
Applicant
And
| APN |
Respondent
REASONS FOR JUDGMENT
Application
This is an interim application by the father of a little girl called ZYN, who is aged four years and nine months, that she change schools from A Z College in the Sydney suburb of A. The father wishes her to attend KR Public School, which is the school currently attended by the parties’ other child, R, and the children’s cousin ZR is a boy aged six years and one month. The cousin Z is four years of age.
The mother wishes the child to continue to attend the AZ College. In due course, she would like the child R to go there, as well.
Background
The parties are divorced. They are each of the Muslim faith and the mother has enrolled the daughter Z in a Muslim Primary School, the AZ College, in A. Neither of the parents live near Arncliffe. The father lives at NR and the mother lives at M.
The elder child, R, attends the KR Public School, which is in M, only a short distance from the mother’s residence. He attends classes in the Muslim religion on Friday nights and on Saturdays. R is on the waiting list to attend AZ College.
There is an issue between the parties as to whether or not the father agreed to Z being enrolled at AZ College.
Issues
The father agrees that AZ provides a good education for children who belong to the Muslim faith. His concern is that the arrangement is impractical and not in the children’s best interest for these reasons:
a)the travelling time between M and A each day, which he says is excessive for a child of Z’s age;
b)the fact that R attends school at KR Public School, which is nearby, means that the mother has to put the child into before and after school care whilst she is travelling across Sydney to deliver Z to and from AZ College;
c)it would be better if the two children attended the one school; and
d)it appears unlikely that R will reach the top of the waiting list to enter AZ in the near future.
The mother argues she is the one who bears the burden of travelling to and from A each day and she is prepared to continue to do so. Further, she argues that there is no evidence that the child suffers any ill effects from the travel. The school is a good one, and the child appears to have settled in well. If Z is withdrawn from AZ at this stage, there is no guarantee that she will be able to regain her place at a later date.
Principles to be followed
The decision of the Full Court of the Family Court of Australia in
Re G: Children’s Schooling(2000) 26 Fam LR 592; FLC 93-025, sets out the current law on the subject. The following principles apply:
a)The decision in Newbery (1977) 2 Fam LR 11,652; FLC 90-205 does not represent the law as it currently stands;
b)There is no legal presumption that the wishes of the parent with whom the child resides should be preferred, but the fact that the child resides predominantly with one parent is not irrelevant;
c)The object and principles set out in section. 60B are to be taken into account in considering the relevant matters in section. 68F(2) of the Family Law Act;
d)Section. 68F(2) matters that are particularly significant include:
i)the wishes of the child;
ii)the nature of the relationship of the child with each parent and other persons;
iii)the likely effect of any changes in the child’s circumstances;
iv)the parents’ attitude to the child and to the responsibilities of parenthood; and
v)any other relevant fact or circumstance;
a)the approach to be taken to the child’s wishes is that taken by the Full Court in R and R: Children’s wishes (2000) 25 Fam LR 712; FLC 93-000; and
b)the best interest of the child is still the paramount consideration.
Conclusions
Z predominantly resides with the mother, although her view should not necessarily prevail.
When looking at the section. 60B considerations, both parents have regular input into the child’s life. The parents both want the child to be brought and educated in the Muslim faith, and they share the view that AZ College offers a good education for the child, even though they do not agree about the child’s attendance there, because the father says that it is impractical for her to travel so far to school.
Z is too young for her wishes to be of any great weight, as she is not yet five years old. She appears to enjoy school.
The mother says that the children are at times afraid of the father, and that they have a better relationship with her. The father says that he has a good relationship with both children.
The mother is critical of the father’s approach to parenting, alleging that he uses harsh physical discipline. The father is critical of the mother’s approach to parenting, citing the long history of DOCS involvement and the mother’s decision to have the children attend two different schools a long way apart, resulting in R having to go into before and after school care.
It would be disruptive to remove Z from her present school at this stage, especially as she appears to have settled in well.
I am of the view that it would not be in Z’s best interest to remove her from AZ College at this stage, although the question of the school to be attended by both children is an important one for consideration at a final hearing. If the situation persists that Z attends school in A and R is to go on attending school in M, a continuation of this arrangement may not be to the children’s best interest in the long run. It would be preferable if R were also able to attend AZ, as the mother wishes. In that case, she may well be able to fulfil her aim of moving closer to A.
Whilst I am not prepared to make an order removing Z from a school where she appears to be happy at this stage, the present situation seems to me to be less than ideal on a permanent basis. It does not appear to be in R’s best interest that he should have to go into before school care when he lives so close to his school, because his mother has to travel a considerable distance to take Z to her school. If he is not able to get into AZ in the foreseeable future, then serious thought must be given to putting both children into the one school that is a lot closer to their home.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 6 May 2003
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