Nevis and Galbraith

FAMILY COURT OF AUSTRALIA

NEVIS & GALBRAITH

[2019] FamCA 916

FAMILY LAW – CHILDREN – final orders – best interests – where parties substantially agree on most matters but unable to agree on what primary school the child will attend – where mother seeks orders for the child to attend the local State primary school – where father seeks orders that the child attend an independent school – where school fees to be paid by the paternal grandparents – where school is not proximate to either parent – where parties agree that they will have equal shared parental responsibility and the child will live with the mother and spend significant and substantial time with the father – orders for the child to live with the mother and spend time with the father – orders that the child attend the local State school.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 117(2)
Family Law Rules 2004 Part 15.5, Rule 15.44

Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256, [1]-[16]; [2006] HCA 27

Bilz Breugelman [2013] FamCA 578, [81]-[83]
Cox v Journeaux (No. 2) (1935) 52 CLR 713, 720; [1935] HCA 48
Dasreef Pty Limited v Hawchar (2011) 243 CLR 588, [90]; [2011] HCA 21
Eden v Eden-Proust [2011] FamCAFC 138
Re G (Children’s Schooling) [2000] FLC 93-025; [2000] FamCA 462
Walton v Gardiner (1993) 177 CLR 378, 329-393; [1993] HCA 77

APPLICANT:

Ms Nevis

RESPONDENT:

Mr Galbraith

FILE NUMBER:

MLC

3534

2018

DATE DELIVERED:

12 December 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

McEvoy J

HEARING DATE:

30-31 July, 1 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Smallwood

SOLICITOR FOR THE APPLICANT:

KCL Law

COUNSEL FOR THE RESPONDENT:

Mr Williams

SOLICITOR FOR THE RESPONDENT:

Coote Family Lawyers

Orders

The mother and the father have equal shared parental responsibility for the child of the marriage X born … 2014 (“the child”).
The child live with the mother.
The child commence her primary school education at B Primary School at C Street, Suburb D, Victoria, in 2020.
The child live with and spend time with the father as follows:
(a)during the school term from 2020 onwards on a fortnightly cycle commencing week one on 20 January 2020:
(i)in week one: from the conclusion of school Wednesday until the commencement of school on Thursday, the father to collect and deliver the child to and from school; and, in the event that the child is not at school, the father to collect the child from the mother’s residence at 9.00 am on Wednesday and, or alternatively, mother to collect the child from the father’s residence at 5.45 pm on Thursday; and
(ii)in week two: from the conclusion of school on Thursday until the commencement of school on Monday, the father to collect and deliver the child to and from school; and in the event that the child is not at school, the father to collect the child from the mother’s residence at 9.00 am on Thursday and, or alternatively, the mother to collect the child from the father’s residence at 5.45 pm on Monday;
(b)during the long summer holiday period commencing in December 2019, from 10.00 am on 27 December 2019 to 10.00 am on 2 January 2020 and from 10.00 am on 8 January 2020 to 10.00 am on 14 January 2020, and otherwise as provided for in paragraph 3(a) save that the child will be returned to the mother by no later than 4.00 pm on the day before the commencement of term 1;
(c)for one half of all school term holiday periods, as agreed, and in default of agreement:
(i)in 2020, and each alternate year thereafter, from 10.00 am on the first Saturday of the holiday period to 5.00 pm on the middle day of the holiday period;
(ii)in 2021, and each alternate year thereafter, from 5.00 pm on the middle day of the holiday period to the commencement of the next school term;

(d)during the long summer holiday period commencing in 2020, and each year thereafter, as agreed, and in default of agreement, on a week about basis with changeover to occur each Sunday at 5.00 pm, and:
(i)in 2020, and each alternate year thereafter, commencing at 10:00am on the first Saturday of the holiday period; and
(ii)in 2021, and each alternate year thereafter, commencing at 5.00 pm on the second Sunday of the holiday period;

(e) for Christmas:
(i)in 2019, and each alternate year thereafter, from 8.00 pm on Christmas eve until 4.00 pm on Christmas day; and
(ii)for Christmas in 2020, and each alternate year thereafter, from 11.00 am on Christmas day until 12 noon on Boxing day;

(f) for Easter:
(i)in 2020, and each alternate year thereafter (notwithstanding how the school term holidays fall), from 5.30 pm on Easter Saturday until 5.30 pm on Easter Monday; and
(ii)in 2021, and each alternate year thereafter (notwithstanding how the school term holidays fall), from 5.30 pm on Easter Thursday (or the conclusion of school if a school day) until 5.30 pm on Easter Saturday;

(g)on the child’s birthday, in the event the child is not already spending time with the father, as agreed, or in default of agreement, if it is a school day, from the conclusion of school until the commencement of school the following day, or if it is the weekend (or otherwise a non-school day), from 12.00 pm until 6.00 pm;
(h)on the father’s birthday, in the event the child is not already spending time with the father, as agreed, or in default of agreement, if it is a school day, from the conclusion of school until the commencement of school the following day, or if it is the weekend (or otherwise a non-school day), from 10.00 am until 10.00 am the following day (or the commencement of school);
(i)on Father's Day weekend each year from 6.00 pm on the Saturday immediately before Father’s Day until the commencement of school on Monday;
(j)at all other times as may be agreed between the parties in writing.

Unless otherwise agreed between the parties, the father's time with the child is to be suspended to ensure that the child spends time with the mother:
(a)during the long summer holiday period commencing December 2019, from 10.00 am on 2 January 2020 to 10.00 am on 8 January 2020 and from 10.00 am on 14 January 2020 to 10.00 am on 20 January 2020;
(b)for one half of the school term holiday periods as agreed, and in default of agreement:
(i)in 2020, and each alternate year thereafter, from 5.00 pm on the middle day of the holiday period to the commencement of the next school term;
(ii)in 2021, and each alternate year thereafter, from 10.00 am on the first Saturday of the holiday period to 5.00 pm on the middle day of the holiday period;
(c)during the long summer holiday period commencing in 2020, and each year thereafter, as agreed, and in default of agreement, on a week about basis with changeover to occur each Sunday at 5.00 pm and:
(i)in 2020, and each alternate year thereafter, commencing at 5.00 pm on the second Sunday of the holiday period; and
(ii)in 2021, and each alternate year thereafter, commencing at 10.00 am on the first Saturday of the holiday period;

(d) for Christmas:
(i)in 2019 from 10.00 am on Christmas eve until 8.00 pm on Christmas eve and then from 5.00 pm on Christmas day until 10.00 am on 27 December 2019; and
(ii)for Christmas in 2020, and each alternate year thereafter, from 10.00 am on Christmas eve until 11.00 am on Christmas day; and
(iii)in 2021, and each alternate year thereafter, from 10.00 am on Christmas eve until 8.00 pm on Christmas eve and then from 4.00 pm on Christmas day until 4.00 pm on Boxing day;

(e) for Easter:
(i)in 2020, and each alternate year thereafter, from 5.30 pm on Easter Thursday (or the conclusion of school if a school day) until 5.30 pm on Easter Saturday; and
(ii)in 2021, and each alternate year thereafter, from 5.30 pm on Easter Saturday until 5.30 pm on Easter Monday (or the commencement of school on Tuesday if a school day);

(f)on the child’s birthday, in the event the child is not already spending time with the mother, as agreed, or in default of agreement, if it is on a school day, from the conclusion of school until the commencement of school the following day, or if it is the weekend (or otherwise a non-school day), from 12.00 pm until 6.00 pm;
(g)on the mother’s birthday, in the event the child is not already spending time with the mother, as agreed or in default of agreement, if it is a school day, from the conclusion of school until the commencement of school the following day, or if it is the weekend (or otherwise a non-school day), from 10.00 am until 10.00 am the following day (or the commencement of school);
(h)on Mother's Day weekend each year from 6.00 pm on the Saturday immediately before Mother's Day until the commencement of school on Monday.

Unless otherwise set out in these orders, changeover shall be as follows:
(a)during the school term, from after school if it is a school day, or if it is non-school day, the parent who is to commence their period of time shall collect the child from the other parent’s residence at the beginning of such time;
(b)during the school term holidays and the long summer vacation and, or alternatively, any other period of time, the father shall collect the child from the mother’s residence at the beginning of the father’s time with the child and the mother shall collect the child from the father’s residence at the conclusion of the father’s time with the child IT BEING NOTED that unless it is impracticable the delivery and collection arrangements are to be undertaken by each parent, personally.
In the event the child’s time with either party falls on a public holiday or school curriculum day, that time shall commence at 9.00 am (as opposed to at the conclusion of school) and conclude at 5.45 pm (as opposed to at the commencement of school) and:
(a)if the public holiday or school curriculum day falls on a Friday, the weekend time shall extend to include the Friday; and
(b)if the public holiday or school curriculum day falls on a Monday, the weekend time shall extend to include the Monday.
The mother and the father to spend such further and other times with the child as agreed between the parties from time to time.
The parties will facilitate any reasonable request by the child to telephone or FaceTime the other parent whilst she is in their care in a cooperative and efficient manner.
The parties each be at liberty to attend any school or extra-curricular activities that parents are ordinarily able to attend and they otherwise be at liberty to communicate directly with the child’s school and to obtain copies of any documentation or information that is ordinarily available to parents.
The parties will keep each other advised of any health issues relating to the child and they will otherwise be at liberty to communicate directly with any medical professional upon whom the child attends and to obtain any information relating to her health, including but not limited to her medical and Medicare records.
Each the mother and father is able to take the child interstate during their residence period without obtaining the other parent’s consent on the condition that the travelling parent shall provide the other parent with a copy of the itinerary, a contact telephone number and details of accommodation no less than fourteen (14) days prior to departure
In the event that the mother or father wishes to take the child interstate outside their specified residence period as provided for in these orders, then the travelling parent is to obtain the other parent’s consent (which consent shall not unreasonably be withheld) and the travelling parent is subject to the following:
(a)the travelling parent is to provide the other parent with no less than one (1) month’s written notice of the intended interstate travel period;
(b)the non-travelling parent is to advise the travelling parent of their consent or otherwise to the proposed travel within five (5) days of receipt of the notice pursuant to paragraph 13 (a) herein;
(c)the travelling parent shall facilitate telephone communication between the child and the other parent whilst the child is travelling interstate on each second day at such time to be agreed, and in default of agreement, at 6.00 pm Australian Eastern Standard Time (or as close to 6.00 pm as is reasonably practicable);
(d)in the event that the interstate travel is outside the usual residence periods then make up time shall be provided to the other parent either prior to or after the interstate travel, which make up time is to be agreed to in writing by the parents no less than fourteen (14) days prior to the proposed travel.
Each parent is able to take the child overseas during their residence period without obtaining the other parent’s consent on the condition that the travelling parent shall provide the other parent with a copy of the itinerary, a contact telephone number and details of accommodation thirty (30) days prior to departure.
In the event that a parent wishes to take the child overseas outside their specified residence period as provided for in these orders, then the travelling parent is to obtain the other parent’s written consent (which consent shall not unreasonably be withheld) and the travelling parent is subject to the following:
(a)the travelling parent is to provide the other parent with no less than three (3) months’ written notice of the intended overseas travel period;
(b)the non-travelling parent is to advise the travelling parent of their consent or otherwise to the proposed travel within fourteen (14) days of receipt of the notice pursuant to paragraph 15 (a) herein;
(c)the travelling parent shall facilitate telephone communication between the child and the other parent whilst the child is travelling overseas on each second day at such time to be agreed; and
(d)in the event that the overseas travel is outside the usual residence periods then make up time shall be provided to the other parent either prior or after the overseas travel, which make up time is to be agreed to in writing by the parents no less than twenty-eight (28) days prior to the proposed travel.
In the event the child is required to be issued with an Australian Passport, both parties will sign all documents and do all things necessary for an Australian Passport to issue in her name, and:
(a)the costs of the application for the Passport are to be shared equally between the parties;
(b)the mother shall hold onto the child’s Passport for safekeeping;
(c)the mother shall provide the child’s Passport to the father within seven (7) days (but not less than 48 hours prior to the date of departure) of any proposed travel by the father with the child overseas; and
(d)the father shall return the child’s Passport to the mother within seven (7) days of her return to Australia.
Each parent shall notify each other of any change of residence, landline, if applicable, and/or telephone number within 24 hours of any change, including change of email address.
Neither parent will enrol the child in any extracurricular activities which shall impinge on the other parent’s time unless the other parent has provided their written consent.
The parents be and are hereby restrained by injunction, both personally and via their servants and agents, from:
(a)discussing these proceedings or any issues relating to these proceedings; and
(b)insulting, belittling, rebuking or otherwise denigrating the other parent or any member of their family or permitting any other person to do so in the presence or hearing of the child.
All extant parenting orders made on 1 June 2018 and 25 September 2018 be otherwise discharged, save that order 3(a) of the orders of Registrar Field made on 1 June 2018 continue until 24 December 2019 and is then discharged.

AND THE COURT NOTES:

That pursuant to s 65 DA(2) and s 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to comply with the order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nevis & Galbraith has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3534 of 2018

Ms Nevis

Applicant

and

Mr Galbraith

Respondent

REASONS FOR JUDGMENT

Introduction

By a Further Amended Initiating Application filed on 2 May 2019 the mother sought various orders in relation to the time that the child of the relationship will spend with her father and the primary school that the child will attend when she commences her preparatory school year in 2020. The parties agree that there should be equal shared parental responsibility and that the child should live with the mother.
Although initially the parties could not agree whether the child should spend four or five nights per fortnight with the father, the mother conceded at trial that the child could spend five nights per fortnight with the father.
Accordingly, the substantive matter for determination is where the child should commence school in 2020 – at the local State primary school in Suburb D (“the local school”) which is located a matter of minutes from the mother’s home, or at an independent school in Suburb E (“the independent school”), which is not proximate to the mother’s home but which is somewhat closer, although still not particularly close, to the father’s home. A residual issue is the configuration of the five nights which the child will spend with the father and certain details in relation to holidays and Christmas. The parties have not been able to agree on the appropriate configuration, and this is also a matter for the Court to determine.
For the reasons which follow there will be orders that the child commence her primary school education in 2020 at the local school. Insofar as the configuration of the five nights which the child will spend with the father during the school term is concerned, there will be orders that the child live with the father in a fortnightly cycle as follows: in week one, from the conclusion of school on Wednesday until the commencement of school on Thursday, and in week two, from the conclusion of school Thursday until the commencement of school on Monday. Insofar as Christmas is concerned, there will be orders which will enable the child to spend each Christmas eve with her maternal family to enjoy their family Christmas celebration which typically occurs on Christmas eve, and each Christmas day with her paternal family so that she can enjoy their celebration of Christmas which typically occurs at lunchtime on Christmas day. There will also be orders providing for the child to spend overnight time with each of her parents on Christmas eve in alternating years, and ensuring that the child spends some time each Christmas day with each of her parents.

Background

The subject child, having been born in 2014, was 5 years of age at the time of the trial. The mother is currently aged 40, and was born in Country F. She moved to Australia as a child. The mother works as a professional in Suburb G and lives in the suburb of Suburb H. The mother is an Australian citizen.

The father is currently aged 41 and lives in the suburb of Suburb J. He is a tradesman and is self-employed. He owns and operates a supply business, working substantially in the south eastern suburbs of Melbourne.
The parties commenced cohabitation in approximately March 2003 and were married in 2007. The child is the only child of the parties’ relationship.
The parties separated in June 2016 and were together for a total of thirteen years. At the time of separation the child was aged 2 years.
The parties were divorced in 2018, with the order coming into effect in April 2018.
In January 2018 the father commenced living with his current partner. The father’s current partner has a nine year old son who lives with them.
The mother has not re-partnered and lives with the child of the relationship.

History of proceedings

On 4 April 2018 the father’s solicitor filed on behalf of the parties an application for consent orders and a minute of consent orders resolving financial matters. Final property orders were made by a registrar on 26 April 2018.
On 27 April 2018 the mother filed an Initiating Application in this Court seeking final parenting orders in relation to the child, and on 31 May 2018 the father filed a Response to Initiating Application seeking interim and final parenting orders.
On 1 June 2018 a registrar made interim consent orders that the parties have equal shared parental responsibility and that the child live with the mother. The child was ordered to spend time with the father on a fortnightly week one/week two cycle; week one was from Wednesday to Thursday and week two was from Friday to Monday. Other procedural orders were also made.
On 20 August 2018 the mother filed an Amended Initiating Application with an accompanying affidavit seeking interim and final orders in relation to the time the child was to spend with the parties.
On 25 September 2018 the parties agreed on further interim orders in relation to time in school holidays and on special occasions. Procedural orders were also made in relation to communication and cooperation between the parties concerning the child’s education and health, and in relation to interstate and international travel.
On 2 May 2019 the mother filed a Further Amended Initiating Application seeking final order in relation to the child’s schooling and time with the father. On 17 May 2019 the father filed an Amended Response to Initiating Application.
On 31 May 2019 the matter was listed for final hearing on 30 July 2019, and it ran for three days commencing on that date. Judgment was reserved, and the parties were directed to file written submissions by 6 September 2019.

Proposals of the parties

As has been indicated, the principal issue is where the child should attend primary school. The child will be living with the mother seven nights out of every ten school nights per fortnight, and the mother wishes the child to attend the local school. The father wishes the child to attend the independent school.
The mother is not in a position to commit to the funding of the independent school, and she perceives that there are various advantages associated with the local school. The father’s parents have offered to assist with the substantial fees which would be payable if the child were to attend the independent school.
For his part the father considers that the independent school has various advantages which make it a superior choice to the local school. The fact that the independent school is somewhat closer to the father’s residence than the local school is also a matter of significance for the father. The father’s position is that if the local school is chosen, the mother should assist him with transporting the child from his home to the local school at certain times.
Insofar as the other matters in dispute are concerned, the parties’ positions are as follows:
a)with respect to the configuration of the child’s time with the father during the school term, the parties agree that in the second week of a fortnightly cycle the child should live with the father from the conclusion of school Thursday until the commencement of school the following Monday. However, the parties disagree as to time with the father in week one, with the mother proposing the child spend time with the father from the conclusion of school Wednesday to the commencement of school Thursday, while the father proposes this time be from the conclusion of school Thursday to the commencement of school Friday;
b)with respect to the Christmas period, the parties agree that the child should spend Christmas eve predominately with the mother and the maternal family and Christmas day predominately with the father and the paternal family, and that the child should have Christmas morning with the parties in alternating years, however they disagree as to the detail of the arrangements. The mother seeks orders that the child spend time with her up until 8.00 pm on Christmas eve of each year, and thereafter, for the year 2019 and each odd numbered year following, the child spend time with the father from 8.00 pm on Christmas eve until 3.00 pm on Christmas day, and then with the mother from 3.00 pm on Christmas day until 6.00 pm on Boxing day. For the year 2020 and each even numbered year thereafter, the mother seeks orders that the child spend time with her on Christmas eve until 3.00 pm on Christmas day, and thereafter with the father until 6.00 pm on Boxing day. For his part, the father seeks orders that, for 2019 and each odd numbered year thereafter, the child spend time with the mother from 10.00 am until 8.00 pm on Christmas eve, and from 5.00 pm on Christmas day until 4.00 pm on Boxing day, and with the father from 8.00 pm on Christmas eve until 5.00 pm on Christmas day. For the year 2020 and each even numbered year thereafter, the father seeks orders that the child spend time with the mother from 10.00 am on Christmas eve until 10.00 am on Christmas day, and with the father from 10.00 am on Christmas day until 4.00 pm on Boxing day;
c)with respect to the coming 2019/2020 summer holidays, the parties agree that the child should spend two periods of six nights with the father, in addition to the usual time and subject to the Christmas period, however again they disagree as to the details. The mother proposes that the child spend from 7.00 pm on 26 December 2019 until 10.00 am on 1 January 2020, and then from 10.00 am on 8 January 2020 until 10.00 am on 14 January 2020 with the father. For his part, the father proposes that the child spend time with him from 10.00 am on 27 December 2019 to 10.00 am on 2 January 2020, and then from 10.00 am on 8 January 2020 to 10.00 am on 14 January 2020.
Before turning to the evidence, it is to be noted that in one sense the substantive question in this case, where the child should go to school, is relatively straight forward. The father observed as much in his written submissions. However for reasons that are not altogether clear the matter was intensely contested, with serious allegations concerning credit directed by both parties against each other, and detailed written submissions addressing almost every issue being filed. It does not bode well for the future of this child if an issue such as schooling is to be approached with such rancour, to say nothing of the parties’ inability to agree on time during term, at Christmas, and over the coming holiday period. The parties, and their respective extended families, would do well to consider whether such ongoing hostility is in the best interests of the child. Self-evidently it is not.

Material relied upon

The mother relied upon the following documents:
a)Further Amended Initiating Application (Family Law) dated and filed on 2 May 2019;
b)Trial Affidavit sworn and filed on 4 July 2019;
c)Financial Statement sworn and filed on 4 July 2019;
d)Affidavit of Ms K sworn and filed on 4 July 2019;
e)Subpoena addressed to the independent school and issued on 9 July 2019 together with various documents produced to the Court relating to the application process;
f)Affidavit in Reply sworn and filed on 25 July 2019; and
g)Affidavit of the single expert witness, Dr L, sworn and filed on 25 July 2019.
The father relied upon the following documents:
a)Amended Response to Initiating Application filed on 17 May 2019;
b)Affidavit of Mr M filed on 17 July 2019;
c)Trial Affidavit affirmed and filed on 18 July 2019;
d)Affidavit of Mr N Galbraith filed on 18 July 2019; and
e)a train of emails between the mother and the father in relation to the enrolment of the child at the independent school.
The father also relied upon the viva voce evidence of his mother Ms O Galbraith which was led at trial.

The Evidence

Evidence adduced by the mother

The mother’s trial affidavit sworn and filed on 4 July 2019 sets out the relevant background as she perceives it, how care of the chid is organised, the advantages she perceives in having the child attend the local school vis-à-vis the independent school, and explains certain other matters, including her proposals.
In her written submissions the mother refers, in particular, to the matters set out in paragraph 80 of her trial affidavit as the reasons for preferring the local school over the independent school. These reasons include that –
·    the local school is closer to her home, which is the child’s primary residence;
·    the local school would cause minimal disruption for the child with long drives to and from school on a daily basis being avoided, and the mother getting home more quickly after school is finished;
·    the local school offers more suitable before and after school care;
·    the costs, including tuition fees, uniforms, camps and after-school care, are not as exorbitant at the local school as at the independent school;
·    the child is familiar with the local school in that she lives close to it, drives past it regularly, already utilises the playground, and rides her bike there;
·    the child has connections with children from the local area through her participation in swimming lessons, dancing, and other social groups and will have friends at the local school;
·    the local school is better placed for the mother to rely upon support from her family in emergencies;
·    attendance at the independent school would involve the child spending up to two hours per day in a car travelling to and from school every day, which could significantly impede the mother’s work commitments and would not be desirable for the child;
·    on Fridays, the mother’s day off, she would be able to walk or ride to the local school with the child;
·    the local school is in a residential street easily accessible by motor vehicles in contrast to the location of the independent school which is not so easily accessible as it is on a busy main road;
·    the father already travels to the area of the local school to collect the child from her home, and if the child attended the local school the extra travel time for the father on these days would be marginal and insofar as the father presently takes the child to kindergarten in Suburb G from his home on each alternate Monday mornings, the local school would be no more than an extra 15 minutes travel time for him.
It is apparent from the mother’s trial affidavit and from her cross examination that, unsurprisingly, she wishes to avoid the chid having to spend significant periods of time each day travelling to and from primary school. She identifies that less time for the child in the car would equate to more time spent in general play with friends in her local community and would be less arduous for the child. It is also apparent that the mother has given careful consideration to the local school and its educational offering, and that on a variety of measures she considers that the school can be regarded as an acceptable school.
It is also apparent from the mother’s trial affidavit that she identifies various difficulties (as well as some strengths) with the independent school. However she is concerned, in particular, that the ratio of boys to girls is more than one half. She considers this to be problematic for the child. The mother is also concerned that were the child to attend the independent school she would be mixing with children from far higher socio-economic backgrounds than her own, and that this may cause the child to feel out of place. Another concern the mother has about the independent school is that it is an Anglican school. She says that the child has been baptised a Catholic and that she has a religious objection to the child attending an Anglican school. A further matter of concern for the mother is that if the paternal grandparents are paying the school fees they may have a tendency to feel that they have a right to be involved in the child’s education to a greater extent than they otherwise would, and that this may cause them to overstep their position. The mother considers that the child’s education should be the responsibility of her and the father, and not their parents.
In her affidavit sworn and filed 25 July 2019 the mother replies to the father’s affidavit of 18 July 2019, taking up various matters addressed in that affidavit. The key differences between the mother and the father are addressed comprehensively in their respective written submissions, to which I will shortly turn, and it is unnecessary to traverse in further detail here the contents of the mother’s affidavits of 4 and 25 July 2019. It should, however, be recorded that the mother was extensively cross examined by counsel for the father.
The mother also relied on the affidavit of her sister, Ms K, sworn and filed on 4 July 2019. The relevant substance of this evidence was that the mother’s sister would be more readily able to assist with the care of the child in the event that she were to attend the local school. There was limited cross examination of Ms K by counsel for the father, particularly in relation to the issue of driving time between the father’s house and the local school.
The mother also relied on the affidavit of the single expert witness, Dr L, sworn 25 July 2019. Dr L describes herself in paragraph 1 of her affidavit as a duly qualified clinical and educational/developmental psychologist. It is worth recording, as Dr L does in paragraph 1 of her report, that she was requested by both parties and jointly appointed by them to conduct an assessment of the child and to provide a report on her recommendations regarding the choice of school that is best able to meet the child’s academic and social needs.
It is important to be clear about the request which the parties jointly made to Dr L, and the context in which Dr L was retained. At the time Dr L was retained the parties were in receipt of a Family Report which had been prepared by Mr M, and which is dated 12 September 2018. Mr M exhibits this report to his affidavit affirmed on 15 July 2019. As has been mentioned, the father relies on Mr M’s report. It will be necessary to return to the subject of Mr M’s report, but what is relevant for present purposes is Mr M’s statement at paragraph 37 that he “has no expertise in the area of educational psychology and is not qualified to comment on the merits of one school over anther”.
In the face of Mr M’s expressed lack of expertise in assessing the merits of one school over the other, the parties agreed to retain Dr L to assist them in resolving this question. In a letter dated 28 June 2019 to Dr L signed by both the solicitor for the mother and the solicitor for the father, the following is stated:
I confirm that the purpose of your appointment is to conduct an assessment of the child, [name], in the terms of the choice of school that is best able to meet the child’s academic and social needs. I advise that the competing positions of the parties are as follows:
ØMy client seeks that [the child] commence her primary school education at [the local school] which is situated at [its address].
ØMy client’s former husband, the father of the child, [name of father], proposes that [the child] commence her primary school education at [the independent school].
Along with her letter of instruction, Dr L was provided with the mother’s Further Amended Initiating Application (Family Law), summaries of relevant issues prepared by both parties, the father’s Amended Response to Initiating Application (Family Law) and a sealed copy of the orders made on 1 June 2018, 25 September 2018 and 31 May 2019. Dr L was not provided with Mr M’s Family Report, which the parties had in their possession at the time.
It may be observed that the explicit purpose of Dr L’s report was to assess the child in the terms of the choice of school that is best able to meet her academic and social needs. Dr L’s report was that of a single expert witness, appointed pursuant to Part 15.5 of the Family Law Rules 2004, to assist the parties in resolving a substantial issue in a case: see, in particular, Rule 15.44.
Prior to the mother calling Dr L and seeking to tender her report, counsel for the father sought to have Dr L provided with Mr M’s report for her to review and consider. The mother opposed this course, and so the father made an application that Dr L be permitted to view Mr M’s report. Counsel for the father submitted that he wished for Dr L to be aware of what Mr M said in paragraphs 40 and 41 of his report (on the subject of the possibility that the choice of the local school might restrict the father’s ability to participate in the child’s educational, social and community context, and the importance of the child maintaining a secure and nurturing relationship with her father).
Counsel for the father submitted that there was a significant cross over of evaluation of the parties – in effect that Dr L exceeded her brief by going further in her report than she was asked to go because part of her opinion was based on assessments she has made of the family. It was submitted that Dr L was asked to do an assessment in relation to which school the child should attend, and that this did not involve, or ought not to have involved, making assessments of the child’s family. It was further submitted by counsel for the father that because both Dr L and Mr M had “done to a significant degree the same process, where they have interviewed the child [and] conducted assessments of the parents”, to refuse to permit Dr L to have the opportunity to read Mr M’s report would be to “preclude an expert witness from having access to a body of knowledge by another expert who has done significantly the same procedure at a different time and formed opinions in relation to the child and the parents”. It was submitted by counsel for the father that it would be a clear error, in these circumstances, to prevent Dr L from being provided with the body of knowledge on the basis of which Mr M has based his recommendations. This submission was made notwithstanding the fact that the parties had not considered it necessary to provide Dr L with Mr M’s report at the time she was retained. Counsel for the father submitted that given that he could put paragraphs 40 and 41 of Mr M’s report to Dr L in cross examination, it would theoretically be open to him to put each paragraph of Mr M’s report to Dr L, starting at page 1, paragraph 1, and read each paragraph to her in the witness box in order to give her a proper context of the interviews Mr M had conducted and why he said what he said in paragraphs 40 and 41 of his report.
Counsel for the mother submitted, in response, that there was no utility in Dr L being given Mr M’s report to read prior to her being cross examined. She accepted that counsel for the father could put extracts of Mr M’s report to Dr L in order to challenge the opinions that she has expressed, but argued that this did not mean that there was any necessity for Dr L to be shown the entire report of Mr M which was prepared on a different basis and was concerned with the question of how much time the child should spend with the father, a question about which the parties had now reached agreement. Counsel for the mother contended that to permit Dr L to read all of Mr M’s report was unnecessary, and that if that course was adopted there would be no reason why all the affidavits filed in the proceeding should not be shown to Dr L.

Counsel for the father emphasised, in response to the mother’s opposition, that it might be that if Dr L was provided with the report of Mr M and was able to consider a number of aspects of it at length, she might be prepared to reconsider her position in relation to what she said about various other matters which, he asserted, were not in her brief but which, he submitted, do affect the quality of her recommendations. It was further submitted that it is common in this Court for witnesses to read each other’s reports before giving evidence in order to save time so that they know exactly what other experts are going to say and they can prepare themselves for cross examination and see whether they change their opinion.
Counsel for the father indicated that if I declined to permit Dr L to read Mr M’s report prior to her giving evidence, he required reasons in the judgment for my adoption of that course. He submitted that a ruling refusing to let Dr L read Mr M’s report would be “a very significant issue in a family law proceeding”. Counsel for the mother maintained the mother’s opposition to Dr L being permitted to read Mr M’s report before being cross examined, and I upheld her objection to this course. My reasons for doing so are as follows.
First, and fundamentally, I accept the submission of counsel for the mother that there is no utility in Dr L being asked to read the entirety of Mr M’s report. In this regard I do not accept the father’s primary submission that Dr L has exceeded her brief by going further in her report than she was asked to go because part of her opinion is based on assessments she has made of the family. Properly understood, Dr L and Mr M were engaged in different exercises. Dr L was asked, in terms, “to conduct an assessment of the child, in the terms of the choice of school that is best able to meet the child’s academic and social needs”. Dr L could not have conducted an assessment of the child in the abstract, without interviewing her father and mother and making some assessment of the child’s developmental history and how the child’s academic and social needs manifest themselves in her family context. Indeed, Dr L obviously considered that such a process was fundamental to the assessment she was asked to provide. In paragraph 3 of her report she explained the assessment process as follows –
The assessment process comprised components designed to: (i) understand the child’s family and educational context and developmental background; (ii) measure the child’s current socio-emotional and behavioural profile; (iii) understand the child’s current academic profile, and (iv) the capacity of each school proposed by the parents to meet the child’s academic and social needs. The assessment was divided into six components: (i) initial developmental clinical interview and psychometric questionnaire completion with each parent (5/7/2019); (ii) a clinical interview of the child (5/7/2019); (iii) telephone interview of the kindergarten teacher and perusal of kindergarten report; (iv) telephone interviews with school staff (from each proposed school) who could provide contextual and resource information about their school and the capacity to provide for the child; and (vi) perusal of supporting documentation provided.
Then, in paragraph 4 of her report, Dr L explained the process of clinical interviews and psychometric assessment of the parents which she had conducted –
A semi-structured clinical interview was conducted with [the father] and [the mother]. The interview spanned a one-hour period with additional time devoted to questionnaire completion. Following briefing about the process and obtaining consent, each parent was asked to complete psychometric assessments in addition to attending the clinical interview. The psychometric assessment battery comprised two measures grouped into one domain:
a. Socio-emotional and Behavioural Profile
i. Parenting Stress Index (PSI-4: Abidin, 2012)
ii. Child Behaviour Checklist (CBCL: Achenbach & Rescorla, 2011).
Dr L noted in paragraph 5 of her report that these scales are empirically validated and provide psychometrically sound information about the socio-emotional and behavioural profile of the child. I consider that the fact that Dr L has had regard to these matters in forming her assessment is unremarkable, and part of the exercise she was asked to undertake.
For Dr L to have considered these matters in assessing which of the two schools best meets the child’s academic and social needs does not mean that Dr L and Mr M did the same thing. Dr L was asked to make recommendations in that discrete area in which Mr M considered he did not have sufficient expertise: the merits of one school over another. Mr M, by contrast, had been ordered to provide a Family Report pursuant to s 62G(2) of the Act, which report was to address the issues in dispute relevant to ss 60CC, 61DA, and 65DAA of the Act, and any other matters that the family consultant considered important for the welfare and best interests of the child.
Having made her assessment of the merits of one school over another, Dr L was able to be cross examined about the basis of her conclusions in the ordinary way. There was no requirement, for that cross examination to be effective, for Dr L to be conversant with everything Mr M had recommended and his reasons for so recommending. Put plainly, the two experts have different expertise, and their reports are directed to different issues. Insofar as it was thought desirable to put aspects of what Mr M had said to Dr L because there is some overlap of issues, this was able to be done on a discrete basis, without requiring Dr L to read the entire report of Mr M. Indeed, counsel for the mother indicated, entirely properly, that she would not oppose counsel for the father adopting this course.
Secondly, insofar as counsel for the father submitted that if Dr L was given an opportunity to consider Mr M’s report she may revise her own views, the ruling that she not be provided with Mr M’s report prior to being cross examined did not preclude the possibility of this occurring. As has been indicated, counsel for the father was at liberty to put particular parts of Mr M’s report to Dr L and invite her to reconsider the views that she had expressed in her report. In the event this was what was done, but Dr L did not retreat from her view that in the particular circumstances which presented here, it is preferable for the child to attend the local school.
Turning to the balance of Dr L’s report, it describes relevant background information and the developmental history of the child, the current academic, socio-emotional and behavioural profile of the child, interviews she conducted with the child’s kindergarten teacher and the two schools, and provides Dr L’s recommendations regarding schooling for the child.
As has been indicated, on the basis of the information available to her, and her consideration of the issues which she sets out in her report, Dr L recommends that the child attend a school local to her home. Having regard to the options presented for the purposes of the assessment, Dr L considers that the child should attend the local school.
Dr L’s reasons for reaching this conclusion are explained in her report. The following matters appear to have been significant in the formation of her views:
a)the child’s kindergarten report identified for focused attention the need to assist the child to expand her social networks beyond one particular friend;
b)the independent school has a ratio of 2:1 boys to girls and class sizes in prep of 11 students per class;
c)the local school has a ratio of 1:1 boys to girls and class sizes in prep of 23-24 students per class;
d)the travel time difference for the father and the child on those occasions when the father was taking the child to school would, in real terms, be between 5 to 7 minutes, irrespective of the school the child attends whereas, conversely, the travel difference for the mother and the child on those occasions where the mother was taking the chid to school would be an additional 17 to 42 minutes if the child was being taken to the independent school;
e)on the basis of these figures, if the child were to go to the local school, her travel each way at peak times would be approximately 10 minutes each way with her mother, and approximately 70 minutes each way on those school days when she is in the care of the father;
f)the child’s total travel time if she goes to the local school would be approximately 7 hours and 20 minutes in a two week cycle, whereas if she went to the independent school her travel time would be approximately 22 hours per fortnight – in other words, the child would be travelling for three times as long each week if she attended the independent school (11 hours per week) compared to 3.5 hours per week if she attended the local school.
Dr L expresses the view that if the decision in relation to schooling were to be made on the basis of ease of travel and practical considerations, the child should commence her schooling close to the home where she spends the majority of her time rather than go to a school at a mid-point. However Dr L also emphasises what she regards as the important matter of the child’s social networks when considering choice of school. She considers that a school that exists mid-way between two homes that are more than 26 kilometres apart risks placing the child in the precarious situation of developing peer networks that are not easily accessible to her within her day to day life. Dr L considers that this would have greater importance and influence as she enters her adolescent years and might potentially fracture the relationship with one or both parents. Dr L does not consider that the time the child would spend with either of her parents in the car travelling to and from school would necessarily be time spent in positive social interaction with her parents.
Dr L acknowledges that there is no doubt that the material resources and facilities available to students enrolled at the independent school are greater than those available to students at the local school, however she considers that the academic outcomes (as assessed by NAPLAN scores) and the ethos of both schools are closely matched. Given that the child is developing well socially, emotionally, and academically, Dr L considers that it is likely that her positive developmental and learning trajectory will continue forwards, irrespective of which of the primary schools she attends.
Dr L also mentions a concern about the parents’ capacity to fund private schooling on an ongoing basis, which she considered might create a risk of disruption of the child’s schooling in the future. It may be observed however that the position adopted by the paternal grandparents at the trial in relation to payment of the school fees at the independent school would seem to neutralise this issue.
A further point which Dr L makes is the risk of a perception of unfairness if the child attends an independent school and the son of the father’s new partner does not enjoy a similar advantage. Dr L observes that a substantial discrepancy in allocation of family resources to each child, in the absence of a clearly justifiable reason to do so, is generally something to be avoided in blended families.
Dr L considers, obviously enough, that the father’s role in the child’s schooling is important, however she is not of the view that the selection of the independent school, which is somewhat closer to the father’s home than the local school, would necessarily allow him greater opportunity to engage with the schooling community. Dr L considers that if a parent possesses sufficient motivation and commitment to become meaningfully involved in their child’s school community, the issue of the travel times between the respective schools which are relevant in this case should not significantly impede that ability.
Dr L was extensively cross examined by counsel for the father. She was asked why she had done an assessment of the parties. Dr L responded that she did not do an assessment of the parties as such, and that her interviews with them were for the purposes of taking a developmental history of the child. It may be observed that Dr L’s answer in this respect has a tendency to neutralise the suggestion made by counsel for the father that Dr L exceeded her brief by basing part of her opinion on assessments she had made of the family.
Dr L was also asked about whether it would have been helpful for her to have known what Mr M’s report said. Her evidence was that in the context of the question she was asked to address, she did not regard Mr M’s report as relevant. Dr L explained that her role was not to assess the relationships between the child and each of her parents, that it was rather to assess where the child was developmentally and, in that context, what issues arose in relation to the choice of school.
Dr L was also cross examined about the issues of travel time, the way in which she researched the two schools, the way children develop communities, and certain attributes in relation to both of the schools. She was asked whether the fact that the class sizes at the independent school were smaller was a plus for the independent school. Her evidence was that it could be, but sometimes smaller class sizes can give fewer opportunities for forming friendship groups. She said she was concerned that there might be reduced opportunities for the child to form relationships with other girls her own age at the independent school because of the higher ratio of boys to girls than at the local school, and that this was an important consideration.
Importantly, Dr L was also asked about the matters articulated by Mr M in paragraphs 40 and 41 of his report, and in particular whether she thought there was a risk that the father could become peripheral to aspects of the child’s educational, social and community life as, to quote Mr M, “teachers, friends, parents and community services increasingly identify [the mother] as the gateway parent for [the child]”. Dr L’s response to this question was nuanced. She indicated that she regarded the father’s role as extremely important in the child’s life, but that when all the relevant considerations were put into the mix, she did not consider there to be anything to suggest that the father would become peripheral. Dr L stated explicitly that she did not think the commute should affect the relationship.

Evidence adduced by the father

The father’s trial affidavit affirmed and filed on 18 July 2019 sets out the relevant background as he perceives it, his views about the current parenting arrangements and his relationship with the child, his own proposals, including in relation to choice of school, and his responses to the mother’s trial affidavit. The father deals in some detail with what he describes as the history of the schooling dispute, the conclusions of Mr M in his report which are supportive of the child attending the independent school, and he expresses his hope (at paragraph 77) that once Dr L releases her report, which at the relevant time she had not done, the mother and he would be able to consider her recommendations and advice and jointly decide on the primary school without the need for the trial.
The father also sets out, in some detail, the consideration that he has given to the independent school, the local school chosen by the mother, and another school situated in Suburb G. He describes the tours he has attended at the independent school, explains his reasons for considering that it would be an excellent school for the child, and he explains his concerns about the child attending the local school.
Unsurprisingly, the father is concerned by the amount of time that the child, and he himself, would spend driving to and from school, whichever school is chosen, given that he and the mother live some 26 kilometres away from one another, and on opposite sides of Melbourne. He is also concerned by the amount of time he anticipates the child will need to spend in before and after school care if she attends the local school. The father says that he does not consider it fair and reasonable that he should be required to bear the burden of travelling for significant periods to take the child to school and to collect her from school on the days that this would be his responsibility, and he expresses concern about his ability to participate in special events at the school if he has to travel so far to be there.
The father expresses a particular concern that since separation the mother has sought to minimise his role in the child’s life, although he is not specific about how this occurs.
The father also responds to various parts of the mother’s trial affidavit, and the affidavit of the mother’s sister. To the extent that any of these responses are relevant to the resolution of the controversy between the parties, I proceed on the basis that they are dealt with in the father’s written submissions, to which I will shortly turn, and it is unnecessary to traverse in further details the contents of the father’s affidavit. The father was extensively cross examined by counsel for the mother.
The father also relies on the affidavit of his father, the child’s grandfather, affirmed on 18 July 2019. The paternal grandfather explains the very positive relationship which he and his wife have with the child, and the time that they spend, and have spent, caring for her. He also explains the role that he and his wife played in researching suitable schools for the child, their attendance at a tour of the independent school, and their preparedness to pay for 50 per cent of the cost of the independent school. The paternal grandfather confirmed in his viva voce evidence that he and his wife would in fact be prepared to fully fund the cost of the independent school, and were prepared to set aside funds on trust, if necessary, for that purpose. The paternal grandfather deposes that he and his wife do not intend to impose themselves on the child’s school life or educational decisions, and that they are content to remain proud grandparents. The grandfather was cross examined by counsel for the mother, particularly in relation to his role, and that of his wife, in the selection of the independent school.
As the trial unfolded counsel for the father sought and was granted leave to lead evidence from the paternal grandmother, Ms O Galbraith, as well. Ms Galbraith gave viva voce evidence concerning her role in identifying and touring the independent school, the preparation of correspondence to the independent school and the assistance she rendered in making the application, her preparedness to assist with the care of the child, and the state of her relationship with the mother. She was cross examined by counsel for the mother in relation to these matters.
As has been mentioned, the Family Report of Mr M is central to the father’s case. Mr M’s report describes the arrangements which were current in September 2018 when he prepared his report, the applications and proposals of the parties, the relevant background, and his interviews with the parents. It provides his evaluation of the state of the relationship between the parties and the appropriateness of their respective proposals. Insofar as the issues of schooling and time are concerned, Mr M says as follows:
37.    The issue of [the child’s] schooling is pertinent to the current and future spending time arrangements. The writer has no expertise in the area of educational psychology and is not qualified to comment on the merits of one school over another. However, the impact of the schooling decision on [the child] and her relationships with both parties falls within the remit of the report.
38.    [The mother’s] proposal appears to be predicated on her role as the primary caregiver and the need for continuity and consistency in [the child’s] environment. She is of the view [the child’s] school needs to be close to her primary residence to facilitate her spending time with friends, participate in extracurricular activities and the local community. [The mother] perceives the proximity of the school as providing [the child] with a sense of stability and identity. In the alternative, [the father] is of the view the choice of [the local school] would have a detrimental impact on his relationship with [the child]. He believes the travel would become an impost and would possibly result in a reduction of his time with [the child]. He expressed concern about his ability to fully participate in all aspects of [the child’s] life with this proposal.
39.    While the role of primary attachment is an important developmental relationship, particularly in the first two years of a child's life, its significance diminishes over time. The child developmentally individuates from the dependency associated with this relationship as they move through the developmental challenges of childhood. This individuation is aided and abetted by a strong and secure secondary attachment with the alternative parent [(the father)]. It is this secondary bond that allows the child to transition between homes with the minimum of attachment distress. The building of these secondary attachments requires the provision of significant or substantial time for the relationship to develop.
40.    The choice of [the local school] will likely restrict [the father’s] ability to fully participate in [the child’s] educational, social and community context. There is a risk that [the father] could become peripheral to these aspects of [the child’s] life as teachers, friends, parents and community services increasingly identify [the mother] as the gateway parent for [the child]. It will make it difficult for [the father] to fully participate in [the child’s] extracurricular activities, friendships and other community forums which are often sourced through connections and friendships made at the school. While it is likely this issue will require a judicial decision; it is the writer's view, the continuity and consistency of [the child’s] relationship with her father should be prioritised over the benefits of a school closely located to her primary residence.
41.    Further, the research and literature show that children do better on a variety of emotional and psychological measures into adulthood where they have been successful in maintaining secure and nurturing relationships with both parents after parental separation. [The mother’s] proposal for an incremental increase in time to four nights fortnight in 2023 somewhat underestimates the value of [the child’s] relationship with her father. The observations reveal a warm and reciprocated relationship between father and child. [The child] moved between the parties without any sign of anxiety or apprehension, and [the father] demonstrated a capacity to soothe and nurture [the child] when required. [The child] will benefit psychologically and emotionally by the maintenance and development of a secure and enduring relationship with her father, and substantial time will be needed for this to occur.
42.    In this context, it is recommended that [the father] spend time with [the child] starting on 1 January 2019, each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday, each alternate Wednesday from the conclusion of school until the commencement of school on Friday, and holiday time as recommended below.

The parties agreed that Mr M’s report could be tendered, and he was not cross examined.

Submissions of the parties

The father’s submissions

The father’s position is summarised in his case outline filed on 25 July 2019 and in his written submissions received on 23 August 2019.
The opening paragraphs of the father’s submissions observe that “[t]he attempt [by the mother] to demonise well-meaning normal behaviour motivated by good intentions is an abuse of the process of the litigation”. I understand this abuse of process criticism to be directed to the mother’s rejection of the paternal grandparents’ offer to fund the child attending the independent school, and their participation in the enrolment process. In other words, that for the mother to have objected to the school chosen by the father and his parents and to have sought orders in this Court that the child attend the local school, is an abuse of process.
It should be observed at the outset that this submission is misconceived, and it is to be rejected. To resist the father’s proposal, supported financially by his parents, was not an abuse of the process of the litigation and it does not remotely warrant this characterisation.[1]
[1] See, for example, the discussion of abuse of process in Batistatos v Roads and Traffic Authority of New South Wales 226 CLR 256, [1]-[16] (Gleeson CJ, Gummow, Hayne and Crennan JJ); Walton v Gardiner (1993) 177 CLR 378, 392-393 (Mason CJ, Dene and Dawson JJ); Cox v Journeaux (No. 2) (1935) 52 CLR 713, 720 (Dixon J).
The father wishes the child to attend the independent school because he considers that:
a)it will be the best fit for her personality, strengths, needs and interests;
b)it is somewhat evenly placed between the parties’ homes (although 4 kilometres further from his home) which will minimise the risk of either parent being peripheral to aspects of the child’s educational, social and extra-curricular life;
c)it is in relatively close proximity to the child’s kindergarten and would therefore provide continuity in terms of her current routine;
d)attendance at the independent school would significantly reduce the amount of time the child would be required to spend in before school care given that the child would travel into school with the mother who works a short distance away;
e)the child would be nearby to both the mother and father’s areas of employment should there be special events at the school;
f)the child would be nearby to both the mother and father’s areas of employment should the child be unwell and require collection from school;
g)because it is broadly agreed that the child will attend a private secondary school in the central Melbourne area, the child will transition more readily to secondary school from a private primary school within the same area than from the local school; and
h)the class sizes at the independent school are small which will assist the child to transition between kindergarten and school and provide her with a more focused learning environment.
The father contends that it is Mr M’s assessment that, from a geographical perspective, the local school would have a negative impact on his relationship with the child and result in him being marginalised. It will be necessary to return to this issue, and the extent to which Mr M’s evidence in this respect withstands scrutiny.
The father also contends that Mr M has properly assessed the factors set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”), in particular the practical difficulties for the father in being able to spend time with and transport his daughter to and from school. This submission also brings into focus the weight to be accorded to Mr M’s evidence. The father submits that all of Mr M’s report is relevant to the issue of schooling and the child’s relationship and future relationship with her parents pursuant to s 60CC(3) of the Act.
Insofar as the evidence of Dr L is concerned, the father is critical of her as a witness. His submissions describe her as “combative” and “not prepared to make concessions”. His submissions also contend that Dr L exceeded her brief in respect of the school assessment and “went on to assess the wider issue of what was in the child’s best interests”. The father is critical that Dr L failed to attend either the local school or the independent school, that she failed properly to calculate driving times on the internet and failed to verify the times by personal experience, and that she failed to acknowledge or give appropriate weight to the concerns referred to in Mr M’s report. It will be necessary to return to these criticisms of Dr L’s report.
The father’s submissions note, however, those aspects of Dr L’s report which emphasised the difference in the quality of education between the competing schools in favour of the independent school, and in particular what the father says was her “finding” that the independent school had:
a)better class sizes;
b)before and after school care;
c)better facilities;
d)wider educational opportunities;
e)wider and better extra-curricular activities; and
f)a feeling of community within the school.
The father’s submissions are critical of Dr L’s reasons for not agreeing with Mr M as to his concern that the father may become peripheral to the child’s educational and social life on the basis of her estimate of travel times from the father’s home to the local school. The father says that the fact that these were obtained from Google Maps meant that they were “somewhat understated”. The father contends that if it is found that the travel times reported by Dr L were inaccurate and minimise the transportation burden on the father, then Mr M’s concerns should be accepted as “valid and real”.
The father’s submissions are trenchantly critical of the mother. Complaint is made that the mother failed to act on Mr M’s recommendations for further time (although as has been mentioned, this aspect of matters has now been conceded). It is also observed and contended to be significant that the mother is and was happy to transport the child from her home to the child’s kindergarten in Suburb G. The mother is described as a combative witness, “on a mission” against the independent school.
The father’s submissions also contend that the mother’s reasons for not supporting the independent school were “flawed and unreasonable” as follows:
a)Religious reasons. These are said not to have been sustained as the mother was not opposed to a different (religious) independent school for secondary school.
b)Class sizes. It is said that the mother’s position that smaller class sizes at the independent school would be adverse is not “an informed or rational” response.
c)Ratio of boys to girls. It is said that the mother’s position that there was a higher ratio of boys to girls at the independent school was not an “informed or rational” response.
d)Driving times. It is said that these were not accurate or calculated on what would be the mother’s delivery time to school and her proper arrival at work on time.
e)The mother had a mistaken belief that there was no pre-school child care at the independent school.
f)The suggestion of socio-economic differences of parents is “irrational” and not supported by any factual evidence.
The father’s submissions also criticise the mother for not being able to see the merits of the child attending what he regarded as a clearly superior school, and for not being able to acknowledge the generosity of the paternal grandparents in offering to provide the child with the benefits of an independent school education. His submissions are critical that the mother “did not inspect or engage with the [independent school]”. He says that this reflects poorly on her capacity to be objective in her decision making regarding an important decision about the child’s future.
The father’s submissions also contended that the mother was “irrational” in propositions put through her counsel that the paternal grandparents completing an expression of interest form for the independent school was an example of controlling and inappropriate behaviour, and in her view that the paternal grandparents acted inappropriately insofar as they advised a kindergarten teacher that the child had been observed writing backwards.
The father’s submissions were also critical of the mother for regarding it as acceptable to have the child in childcare/kindergarten close to her work, yet unacceptable for this to occur during primary school. Similarly, the father’s submissions were critical of the mother for what was said to be her failure to accept “the logic” that the child would easily be able to delivered to the independent school by the mother and collected by the mother after she finished work.
The father’s submissions also criticised the mother for what was contended to be her failure to accept the serious impact on the child of the father and the child’s travel time from the father’s home in Suburb J to the local school on those occasions when this was necessary. It was submitted that the mother failed to accept “the serious impact and the practicality” for the father travelling with the child to the local school, including the significant impact on the father’s capacity to engage in his work as a contractor in the eastern suburbs.
The father’s submissions criticised the mother for not being prepared to assist him in transporting the child to either school. This, it was said, reflected on the mother’s credit, and her capacity to meet the child’s best interests. The father’s submissions contended that the mother’s refusal to commit to any minor expenses at the independent school was motivated by not being prepared to be supportive in any way of the independent school, and it was submitted that the mother’s opinion in this respect demonstrated a combative, non-child focused position. The father was also critical that the mother was not prepared to allow the child to spend Christmas day uninterrupted with the father in alternate years, or to collect the child from the father at 5.00 pm on Christmas day to enable her to spend lunch time with her paternal family.
Insofar as the position of the paternal grandparents is concerned the father contended that the Court should accept that they –
a)had a very strong connection with the child;
b)wished to facilitate and support the child unconditionally;
c)would not interfere with the mother’s role as a mother and had not done so in the past;
d)have never done any act or thing contrary to the child’s best interests;
e)had a limited capacity to assist with driving to and from the local school and that this was not something that can or should regularly be relied upon;
f)were not cross examined about how they would interfere negatively in the child’s schooling.
It was submitted by the father that, insofar as he was concerned, he:
a)was a witness who was prepared to make concessions;
b)enjoyed an excellent relationship with the child;
c)seeks to continue and further his relationship with the child;
d)genuinely believes that the independent school is in her best interests;
e)pays child support in accordance with his legal requirements and makes additional payments of child care and for extra-curricular activities;
f)would be able to transport the child with reasonable travel times to the independent school; and
g)and the child would be adversely affected by the increased travel times to the local school; and
h)would find that the time and practicality of him travelling to the local school compared to the independent school would be a significant detriment to his work and to his capacity to engage with the child’s school and her other activities.
The father made the following submissions in relation to the relevant s 60CC(3) factors. First, he submitted that the child’s attendance at the independent school would ensure that her relationship with him is promoted and maintained and would not adversely impact the child’s relationship with the mother or the time they spend together. He submitted that the independent school would more easily facilitate the maintenance of the close relationship the child had developed with the paternal grandparents and that were the child to attend the local school, there would be a significant increase on the reliance placed on the maternal family to care for the child.
Secondly, the father submitted that the fact of these proceedings demonstrates his commitment to promoting the best interests of the child and his preparedness to be involved in making decisions relating to major long term issues affecting her.
Thirdly, the father submitted that despite the criticisms of the mother, he has at all times supported the child financially, whether by way of private arrangement with the mother or administrative assessment of child support and other non-periodic payments.
Fourthly, the father submitted that the child’s attendance at the independent school would effectively maintain the status quo in terms of current travel times to and from kindergarten and the travel required by each of the parents.
Fifthly, the father submitted that the practicalities of the child attending the independent school for each of the parents are not unlike those currently experienced given that the child’s kindergarten is a short distance from the school. But the father says that if the child attends the local school he will be involved in travelling up to 2.5 hours (round trip) to deliver the child to school and collect her from school. The father says that he generally commences work at 6.30 am and that on days when he would be required to deliver the child to the local school he would not arrive a work until approximately 10.00 am. He says that on days when he is required to collect her from the local school he would be required to leave his job site at 2.30 pm and would not arrive home with the child until after 5.00 pm. He says that this amount of travel is unreasonably onerous to both him and the child. He says that there will be an adverse economic impact on him in needing to transport the child to the local school because of his inability to work during these times and notes that all school related travel time for the child occurs during the father’s usual working hours.
Sixthly, the father submits that the limited family violence intervention order which was obtained by the mother against the father related to an isolated incident which in any event is denied by him. The father submitted that there have been no reported breaches of the intervention order which expired in August 2018.
Seventhly, the father submitted that the child’s attendance at the local school will leave open the prospect of further litigation with respect to the child’s secondary school given that there are limited private secondary schools in the western suburbs which she could attend. The father submitted that it is more likely that the child’s peers would be attending a local secondary school. He submitted that the mother has conceded that she would be agreeable to the child attending a private secondary school in the central Melbourne area and that if the child was to attend the independent school, her choice of private secondary school would likely be impacted - that in effect she could go to the school which her then established peer groups would be attending.
Eighthly, the father submitted that if the child were to attend the local school, in order for the mother to arrive at her place of work on time the child would need to attend pre-school care for in excess of an hour each morning and that this would lengthen the child’s days unreasonably and unnecessarily. The father also submitted that the child’s attendance at the local school would substantially affect the relationship between her and the father insofar as the vast majority of the time they would spend together would be in the car, with the quality of their interactions in motor vehicles being an issue which was raised by Dr L.

The mother’s submissions

The mother’s position is outlined in her case summary filed on 25 July 2019 and in her written submissions filed 6 September 2019.
The mother says that the local school is the school to which the child is zoned, and that it is some 800 metres from her home, which is the child’s primary residence. The mother submitted that the child would be subject to far less travel if she is able to attend the local school. She contended that the tyranny of distance between her home and the father’s home is such that if the father’s proposal for the child’s attendance at the independent school in Suburb E is accepted, the child would be subject to significantly more travel on a fortnightly basis than if she attended the local school. It is said that even on the father’s proposals, the mother will have the majority of the responsibility for transporting the child to and from school, as well as being required to work four days per week (where she works full time hours).
It is further submitted by the mother that the independent school has no before school care facilities (although that would seem to be incorrect) and that the after school care facilities are more expensive than the costs of the same facility at the local school. The mother does not wish to incur the extra costs for books, uniforms and other necessary requirements which she expects would be incurred if the child attended the independent school.
The mother says that she would have the assistance of her own mother and sister with after school care, in the event that that were necessary, should the child attend the local school. However she says that this assistance would not be available to her in the event that the child attended the independent school.
The mother also submitted that should the child attend the independent school, her travel each week would be three times the travel she would need to undertake if the child attended the local school. If the child attended the independent school, the mother says that the child would be spending up to two hours per day travelling to and from school, regardless of whether she were to be taken to school by the mother or the father.
The mother submitted that she is concerned that if the child attends a school outside her residential area it will limit her ability to participate in her local community, play dates, and make social connections proximate to her primary residence.
In her case summary the mother noted that the father had stated that he is flexible in his work hours. She submitted that if this is correct, the father would be able to participate actively (as would his extended family) in all school events, whether or not the child is attending the local school or the independent school. The mother is concerned that her employment could be compromised in the event that she is obliged to travel and take the child to the independent school for her primary school education because such an arrangement would create onerous time constraints for her.
The mother’s position is said to be premised on the child’s welfare. It is contended that if the child attends the local school she is a matter of minutes away from her primary residence. The mother owns the home in which they live, and there is no suggestion that she will be moving. Thus, the mother says, the child is in a stable living situation, and the child's proximity to her primary school will proceed uninterrupted. The child will be able to make local friends, engage in local activities and social occasions with her peers, and avoid any significant travel to school on 14 occasions each fortnight.
The mother reiterated in her written submissions that if the child attends the local school she will be immersed in her local young community, and all the benefits of “belonging” which that invites. The mother relies on the report of Dr L insofar as it suggests that most primary school children attend school close to their home. The mother contends that the child will have the benefit of spending more relaxed time at home because the mother will be able to procure the assistance of her mother and her sister in looking after the child. The mother also relies on Dr L's report to contend that such an arrangement is better for the child developmentally than spending hours every week in a car.

Part VII of the Act is concerned with children. Section 60B sets out the objects of Part VII and the principles underlying it. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the Act sets out how the Court is to determine what is in a child’s best interests. The primary considerations are set out in ss 60CC(2) and (2A) of the Act, and the additional considerations in s 60CC(3) of the Act. The primary consideration of the benefit to the child of having a meaningful relationship with both her parents has some relevance in this case, having regard to the submissions made on this subject by the father. The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence is not a matter which requires consideration.
Insofar as it is necessary to identify the s 60CC(3) additional considerations that are relevant on the present application, it may be observed that few of the specifically enumerated additional considerations are of central significance. For example, the child is too young to be expressing particular views, and both parents are appropriately engaged with the child. Obviously, however, the likely effect of the child attending one school rather than the other and the effect that this choice may have on the child’s relationship with both parents is a matter that requires consideration (s 60CC(3)(d)). As well as this, there are a series of other facts and circumstances, all of which are identified in the submissions of the parties, which need to be weighed in determining which of the two schools is in the child’s best interests to attend (s 60CC(3)(m)). The principles essayed in Re G provide helpful guidance in the resolution of this question.

The Child’s Best Interests

Schooling

As will be apparent from the submissions made by both parties, virtually every conceivable argument has been advanced by them in favour of, and against, the choice of both schools. In the end, however, weighing all the arguments and all the evidence, I take the view that the best interests of the child lie in her attending the local school. There are several reasons for this.
The first point to make is that although there are some differences in the offerings available at both of the schools, with material resources and facilities available at the independent school being greater than those available at the local school, the evidence of Dr L is that the academic outcomes and the ethos of both schools are closely matched. In other words, and to use the language of Re G, both of the schools are “prima facie satisfactory”. I accept Dr L’s evidence in this regard. Insofar as the father is critical of Dr L’s evidence in this regard, and more generally, particularly her demeanour in cross examination, I do not accept his criticisms. Dr L impressed me as a thoughtful and intelligent witness, who exposed her path of reasoning and expressed her conclusions carefully. I was greatly assisted by her evidence.
Against the background that both schools are prima facie satisfactory, however, there are several other facts and circumstances which, for the purposes of s 60CC(3)(m) of the Act, are relevant considerations which must be taken into account. One that looms very large is the need to minimise the time the child spends each day travelling to and from school. However the travelling times are analysed, it is readily apparent that the child would spend considerably longer each fortnight travelling to and from school if she attended the independent school than if she attended the local school. Dr L assesses the difference as being approximately three times as long each week if the child attended the independent school than if she attended the local school – 11 hours per week as compared to 3.5 hours per week. Even if there are variances in the times on certain days, the difference is self-evident given the locations involved, and it is striking. It would undoubtedly be burdensome, and not in her best interests, for the child to have to endure such long periods in the car each day. As Dr L observes, although the educational aspirations of both parents are sound, the practical reality is that the tyranny of residential distance is a factor which impacts significantly on the equal and fair realisation of their parental ambitions. That this is so is an unfortunate consequence of their decisions to live so far apart.
In coming to this conclusion I am mindful that this will, on the days the father must drop the child off at school or collect her, impose a somewhat greater burden on him than if the child were at the independent school. It may even be that, as he claims, the father could suffer an adverse economic impact, although it is to be noted that there is no evidence of this other than the father’s assertion that it would be so. Ultimately however it is the best interests of the child that are the primary focus, and as Re G suggests, the interests of the resident parent will usually be accorded more weight than the interests of the non-resident parent.
Insofar as the mother is concerned, it is self-evidently preferable for her if the child is at school locally. I accept that this makes it easier for her to manage the care of the child, easier to enlist the assistance of her family should she require it, and it gives her greater flexibility in the future should her employment situation change. These are all important matters and, as the Full Court in Re G suggests, it is in a child’s best interests that the resident parent should not be subject to more irksome and unnecessary additional restraints than looking after a child already entails.
Another factor which I consider to be important is the higher ratio of boys to girls at the independent school than at the local school, and the need which Dr L describes, on the basis of her interview of the child’s kindergarten teacher and the child’s kindergarten report, for the child to expand her social networks. This matter is something which sounds in favour of the local school, particularly in circumstances where the class sizes at the independent school are small, and there would seem to be a risk that the child would have a limited number of girls in her class with whom to form friendships. I do not accept the father’s submission that the mother’s concerns about this matter, which Dr L expresses also, are not “informed or rational”. In my view these concerns are well informed and entirely rational. They provide a further basis for my conclusion that it would be in the best interests of the child to attend the local school.
On the subject of the father’s more general criticisms of the mother, I do not accept that she was “a combative witness on a mission against the [independent school]”, that she was at all unreasonable or irrational, or that her attitude to any of the matters in the proceeding reflected adversely on her credit. Indeed, I do not consider that the attack on the mother’s credit in the father’s written submissions was warranted. The mother impressed me as thoughtful and considered in her responses to questions put in cross examination, and as endeavouring to the best of her ability to navigate the dispute which has arisen between the father and his parents on the one hand, and her on the other hand. It may be observed, drawing once again on Re G, that it is understandable that the mother has needed to have regard to the exigencies of her own employment position in considering which school it is in the best interests of the child to attend.
An additional and related factor of significance in favour of the local school is what has been identified by Dr L as the importance of the child’s social networks. It is said by Dr L that it can be problematic if peer networks are not easily accessible to children within their daily life, and that there is a risk of this occurring if the child attends a primary school some distance from her primary residence. The mother also identifies the importance of the child forming connections with children from the local area through the local school, and this is consistent with common experience. I accept that this matter is important in the child’s social development. It provides a further basis for my conclusion that it would be in the best interests of the child to attend the local school.
Dr L’s identification of the importance of the child’s social networks is preceded, in paragraph 30 of her report, by the observation that if the decision of schooling is made on the basis of ease of travel and practical considerations, the child should commence her schooling close to the home where she spends the majority of her time, rather than go to school at a mid-point. As is apparent, I agree with Dr L in this respect, and I am of the view that it would be in the best interests of the child to commence her schooling close to the home where she spends the majority of her time. However in coming to this view it is necessary to have regard to what the father identifies as the primary argument against it – namely that the choice of the local school would have a negative impact on his relationship with the child and result in him being marginalised in her life. The father relies, in particular, on Mr M’s report in support of this argument. I do not accept that the choice of the local school would necessarily have a negative impact on the father’s relationship with the child, and for reasons which I will explain I do not consider that Mr M’s report, properly considered, supports the father’s argument in this respect.
The starting point lies in the terms of Mr M’s evidence at paragraphs 39 to 42 of his report. It is apparent from the language used in these paragraphs that Mr M bases his conclusions about the risk of the father becoming marginalised on no more than what the father has told him. For instance, in paragraph 38 Mr M notes simply, in relation to the father’s alternative view about schooling, that he –
… is of the view the choice of [the local school] would have a detrimental impact on his relationship with the child. He believes the travel would become an impost and would possibly result in a reduction of his time with [the child]. He expressed concern about his ability to fully participate in all aspects of [the child’s] life with this proposal.
In paragraph 39 of his report Mr M makes observations about the role of primary attachment, which appear to be predicated on the risk of marginalisation perceived by the father and given expression by Mr M in paragraph 38. Similarly, in paragraph 40, and in the context of the predicates expressed in paragraphs 38 and 39, Mr M states that “the choice of [the local school] will likely restrict [the father’s] ability to fully participate in the child’s educational, social and community context”.
Mr M goes on to note, in paragraph 40, that –
“[t]here is a risk that [the father] could become peripheral to aspects of the child’s life, and that it will make it difficult for [the father] to fully participate in [the child’s] extracurricular activities, friendships and other community forums which are often sourced through connections and friendships made at the school”.
Mr M then says, in paragraph 40, that in his view “the continuity and consistency of [the child’s] relationship with the father should be prioritised over the benefits of a school closely located to her primary residence”.
It will be readily appreciated that in order for whatever expert opinion Mr M expresses to be of utility to the Court, it must have a basis in primary fact.[4] Here, Mr M’s comments about the father’s apprehension of marginalisation are no more than a restatement of what the father told Mr M his concerns were, should the child attend the local school. What Mr M appears to have done is accept or assume that the father has a proper basis for his concerns in this regard. As the mother submits, and as I accept, the evidence before the Court dispelled any such suggestion.
[4] See Dasreef Pty Limited v Hawchar [2011] 243 CLR 588, 622 [90] (Heydon J).
Despite affidavit evidence from the father asserting that he was being marginalised, the father was not able to give any real example of this marginalisation in cross examination other than that he had been excluded from receiving information about the child’s kindergarten. The reality however, which the father conceded, was that there was a mobile app to which he had access and through which he could obtain all information regarding the child’s attendance and progress at her kindergarten. No other example of marginalisation or exclusion was able to be given by the father. It may therefore fairly be concluded that the father’s complaint and his ostensibly related fear for the future, as articulated to Mr M, was without foundation.
Also relevant to the extent of the father’s stated concern about marginalisation was his agreement in cross examination that he could and would attend assembly on Friday afternoon and Monday at the local school if the child attended the local school. This evidence illustrates the point made by Dr L in her report that if a parent possesses the motivation and commitment to become meaningfully involved in their child’s school community, then the travel times which might need to be surmounted in this particular case would not preclude the fulfilment of that aspiration.
Having regard to the evidence therefore I consider that Mr M’s conclusion, expressed in paragraph 40 of his report, that the continuity and consistency of the child’s relationship with her father should be prioritised over the benefits of the local school, is of limited relevance and persuasive force. It is based on no more than a stated apprehension of the father, which apprehension I consider he did not sustain in cross examination.
I would also observe that, even were the father’s concerns about his current or possible future marginalisation by reference to the choice of the local school to have some tangible basis in reality, I would be slow to find that this would prevent him having a meaningful relationship with the child for the purposes of s 60CC(2)(a) of the Act such that it would be in the best interests of the child to attend the independent school. The reality, of course, is that the child will be spending every second Wednesday night and every second Thursday night, and every other weekend, including Sunday night, as well as holiday time, with the father. The father and the child both live in the same city, and they apparently enjoy a good relationship. It is difficult to see how, in these circumstances, even if the child attends the local school, the father could be deprived of a meaningful relationship with the child if he seriously wishes to pursue one.
There are various other matters which have been advanced by one or other of the parties in support of their respective positions. They include (but are not confined to) the issue of whether it would be problematic for the child to attend the independent school because of her socio-economic background, whether the fact that the independent school was of the Anglican denomination was objectionable, whether the paternal grandparents had over-stepped their proper role and been interfering in their dealings with the child and might be more inclined to act in this way if they were paying the school fees at the independent school, and whether there might be a perception of unfairness on the part of the son of the father’s new partner if the child attends the independent school.
I have considered all of the arguments deployed by the parties in their affidavits and written submissions, as well as those that I have dealt with specifically above, and I do not consider that, individually or collectively, they affect my conclusion that it would be in the best interests of the child to attend the local school. Several of these other matters are not, to my mind, of much significance in the overall scheme of things.
However, given the focus at trial on what was said by the mother to be the inappropriateness of the paternal grandparents’ role in selecting the independent school, it is desirable to say something about this matter. I accept that the mother has a concern about whether the paternal grandparents have over-reached in their dealings with the child, particularly in relation to their advocacy of the independent school and their role in putting the child’s name down at that school, attending tours of the school, and the like. Nonetheless, their actions might equally be explicable as those of committed and engaged grandparents, who play and have played a substantial role in the care of the child throughout her life and wish her to have what they perceive as the advantages of a private school education. Perhaps there is an element of truth in both perspectives. In the end I do not consider that a resolution of the allegations and the counter allegations on this subject much assists in determining which school it is in the best interests of the child to attend.
Further, insofar as it is submitted by the mother that the father delegated his responsibility to find, choose and assess a school to his parents, and that he was completely untruthful about his involvement in that process, I do not consider it necessary to resolve this point. Certainly there were difficulties with the father’s evidence that he wrote the letter to the independent school prior to his parents attending the school on the day in question, but to the extent that this was not correct it may well have been that the father was simply confused. I do not doubt his commitment, or his parents’ commitment, to selecting a school which is in the child’s best interests.
The one remaining matter to be addressed is the father’s submission that, if the child attends the local school, he should have overnight time on Thursday nights and the mother should attend his home very early on Friday morning to collect the child and take her to school. This would be an exercise that would likely consume the best part of two hours of the mother’s time.
I do not consider that it would be reasonable to require the mother to do this. Were the mother to be required to assume this burden as well as her other responsibilities as the child’s primary carer, it would represent a very considerable impost on her, to say nothing of the risk that it could interfere with her future employment opportunities. Although driving to the local school is somewhat further than driving to the independent school for the father (which he is prepared to do without assistance from the mother), I consider that in the overall scheme of things the father should discharge this responsibility on those mornings where the child has stayed at his home overnight. The fact that he is self-employed might be thought to make it feasible for him to do so.

Spend time arrangements

As has been indicated, the Court has also been required to determine the configuration of the five nights which the child will spend with the father, and certain details in relation to holidays and special days. These matters will be dealt with on the following basis:
(a)during school term on a fortnightly cycle: in week one, the child shall spend overnight with the father from the conclusion of school on Wednesday until the commencement of school on Thursday morning; and, in week two, the child will live with the father from the conclusion of school on Thursday until the commencement of school on Monday morning. The rationale behind this arrangement is to minimise the length of time the child is away from any one parent, while ensuring some continuity of care in the father’s residence. This arrangement has the advantage of allowing the mother to walk or bicycle with the child to school on one Friday per fortnight, which is something that she has said she would like to do, Friday being the day the mother presently has off work.
(b)Christmas: given that the maternal family celebrate Christmas in the European tradition on Christmas eve, there does not seem to be any reason why the child cannot spend each Christmas eve with her mother. On alternating years, commencing this Christmas, she can be collected by the father from the mother at 8.00 pm Christmas eve and transported to the father’s home. She can then stay overnight Christmas eve with the father, and enjoy Christmas morning and Christmas lunch with her paternal family. To ensure that the child is able to spend some time with her mother on Christmas day, she can be collected by the mother at 4.00 pm on Christmas day, and enjoy the remainder of the day with her mother. The collection time of 4.00 pm is midway between the mother’s preferred collection time of 3.00 pm and the father’s preferred collection time of 5.00 pm. In 2020, and in even years after that, the child can spend Christmas eve with the mother, and be collected by the father at 11.00 am on Christmas day to enable her to enjoy lunch on Christmas day with the paternal family. The child may then spend Christmas night with the father, being collected by the mother at 12 noon on Boxing day;
(c)2019-2020 school holidays: given that the child will be with the father from 8.00 pm on Christmas eve until 4.00 pm on Christmas day this year, and thereafter will be with the mother for Boxing day, orders that the first of the father’s six night blocks with the child commence at 10.00 am on 27 December 2019, as proposed by the father, allow the child to have the whole of Boxing day with the mother at the child’s primary residence. Thereafter the child will have six nights with the mother from 10.00 am on 2 January 2020 until 10.00 am on 8 January 2020, six nights with father from 10.00 am on 8 January 2020 until 10.00 am on 14 January 2020, and a further six nights with the mother from 10.00 am on 14 January 2020 until 10.00 am on 20 January 2020. On 20 January 2020, term time will commence, in accordance with the orders, from week one of the fortnightly cycle, provided that the parties ensure the child is returned to the mother by no later than 4.00 pm on the day before the commencement of term 1.

There will be further orders relating to interstate and international travel with the child and other day to day matters which are reflective of one or other or both of the parties’ draft minutes, but which I expect will be uncontroversial.

Costs

The father, in his Amended Response to Initiating Application, has sought his costs on an indemnity basis. It is unclear whether this application is pressed, as it is not addressed in his written submissions. There is, in any event, no basis for such an application, whether under s 117(2) of the Act or otherwise. There will be no order as to costs. In accordance with the usual rule, each party shall bear their own costs.

I certify that the preceding one hundred and fifty-five (155) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McEvoy delivered on 12 December 2019.

Associate:

Date: 12 December 2019

[2019] FamCA 916

12 December 2019

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Consent

Procedural Fairness