OTLEY & LAMIN

[2020] FamCA 797

FAMILY COURT OF AUSTRALIA

OTLEY & LAMIN [2020] FamCA 797

FAMILY LAW – CHILDREN – Interim – schooling issue.

Family Law Act 1975 (Cth)

Re G:  Children’s Schooling (2000) FLC 93-025

APPLICANT: Ms Otley

RESPONDENT: Mr Lamin

FILE NUMBER: BRC 13736 of 2017

DATE DELIVERED: 24 September 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 15 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms M Cullen

SOLICITOR FOR THE APPLICANT: ASD Family Legal

COUNSEL FOR THE RESPONDENT: Mr J Linklater-Steele

SOLICITOR FOR THE RESPONDENT: Phillips Family Law

INDEPENDENT CHILDREN’S LAWYER:

Mr D Carter

Carter Farquar Mediation & Family Law

Orders

1. That on an interim basis pending further order, the child, Y born … 2008 shall be enrolled in and shall attend G School for the commencement of the 2021 Queensland school year.

2. That the parents sign all such documents and do all such things as are necessary to facilitate Y’s enrolment and attendance at G School.

3. That the father is permitted to maintain the enrolment opportunity for both Y and Z born … 2009 to attend B School, H Town, if so ordered or agreed.

4. That the parties’ costs of and incidental to the Application heard 15 September 2020 are reserved to the trial judge.

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 Otley & Lamin 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 BRISBANE

FILE NUMBER: BRC 13736 of 2017

Ms Otley

Applicant

And

Mr Lamin

Respondent

REASONS FOR JUDGMENT

Introduction

1. In the midst of contested parenting proceedings between the mother Ms Otley and the father Mr Lamin, concerning their children Y (soon to turn 12 years) and Z (soon to turn 11 years), a dispute arose as to the time the children should spend with their mother and school arrangements for the 2021 school year.

2. When the matter proceeded before me for a contested interim hearing on 15 September 2029, it became apparent that the disagreement essentially about block holiday time had been resolved, and interim orders by consent were made on that day.

3. To understand the context within which the dispute as to school arrangements should be considered, it is helpful to provide the following brief chronology:

   a)The parents separated in November 2016 and conflicts as to care arose but it was not until after December 2017 when the mother (who retained the primary care of the children) commenced proceedings in the Federal Circuit Court of Australia, that formal orders were made;

   b)In summary, and seemingly resulting from a range of changes in the children’s/parent’s circumstances, it was ordered that:

   i)by Judge Vasta on 13 February 2018, the children live in a week-about arrangement and, relevantly, the children attend J School;

   ii)with the benefit of a family report and in the shadows of the mother’s hospitalisation for some mental health challenges, Judge Turner on 16 August 2018 ordered the children live with the father, with the children to spend weekend time with the mother, supervised by the maternal grandmother.  This “condition” was discharged on 17 October 2018;

   iii)By the time of these last Orders, the mother was living in L Region (since mid-2018) and the father had purchased a home at M Town – some one hour’s travel time from the children school at J School;

   iv)Whilst these proceedings were ongoing, the mother and a Mr C were also involved in parenting proceedings in respect of their child W (aged six years).  W was living with the mother in L Region when the father of W applied essentially for week-about time – only practicable if the mother returned to the Brisbane area.  Orders made by Judge Spelleken were premised on the mother relocating to Brisbane – which she did shortly thereafter in September 2019 – moving to Suburb D.  The rented property she occupies is situated close to J School – but about a 50 minutes’ drive from the father’s home; and

   v)It follows therefore, from at least early 2018, the subject children Y and Z have attended J School whilst living with their father primarily since August 2018.

   c)The last family report by Ms F arose from interviews on 16 May 2019, and therefore took place before the mother relocated to Suburb D in September 2019 with W.  The recommendations of the report writer (at paragraph 125), based on the assumption the mother continued to live in L Region, do not easily apply and, as a result, a further family report (spanning both matters which have been consolidated), and in respect of the three children (Y, Z and W), has been ordered and is anticipated to be available at the end of November 2020.  In the absence of any final resolutions by consent, a trial will take place in the first half of 2021.

Issue

1. This short chronology identifies the most pressing issue – namely, when Y is unable to continue school at J School after the end of this school year, which middle/secondary school should he attend at the commencement of the 2021 school year.  Although the father acknowledges that Z can continue to attend her current school next year, his application seeks that both children move to his preferred choice of school for 2021.

Competing proposals and why

Father

1. The father, through his Counsel Mr Linklater-Steele, contends it is in the best interests of both Y and Z to begin the 2021 school year at B School, H Town for the following reasons:

   a)The school is approximately 20 minutes’ drive from his home at M Town – as compared to up to 60 minutes to G School;

   b)As the children continue to live with him primarily (and certainly for most of the school term time), the reduction in travel time will benefit the children;

   c)The father’s partner Ms K works at Suburb BB and as she will be involved with the collection and/or drop off at the school, B School is a more convenient location;

   d)B School has enrolments from prep to grade 12, which means that both Y and Z from 2021 can complete their schooling at that School;

   e)B School is a church school where religious principles are part of the school values and ethos.  The mother, in or about September 2019, when a discussion occurred about future schooling and church education at B School was raised by the father, did not oppose the children attending there;

   f)Subsequently, about 14 days later, the mother moved to rental accommodation at Suburb D (closer to J School) and thereafter opposed Y and Z attending B School;

   g)The father and Ms K have two children of their own relationship – U (five years) and V (nearly two years).  The father says U currently attends prep at B School and it is the intention that V start there from 2024;

   h)Whilst the father acknowledges that the subject children’s sister Q (who lives with the mother) currently attends G School (and moved to that school in term one, 2020), she is in grade 10 and will only be at that school for 2021 and 2022;

   i)The mother has lived in three different residences since these proceedings commenced, and therefore there is no certainty that she will be able to remain in her current residence for the duration of the children’s schooling.  The father owns his home and has no intention to move – noting the father was retrenched in late 2017 and is not employed outside the home; and

   j)At paragraph 121 of the family report, Ms F (after considering the benefits of the mother’s application for primary or at least equal time care at paragraph 120) opined that:

   “…the children may be best supported to maintain their relationship with their mother and siblings, and be protected from any instability, if they can live predominantly with their father, attend at a school near his home, and spend significant and substantial time with their mother.”

Mother

1. The mother, through her Counsel Ms Cullen, contends that it is in the best interests of Y that he begin his secondary education (grade seven) in 2021 at G School for the following reasons:

   a)The mother says that although the father’s Response filed 3 August 2020 does seek orders that both Y and Z “be enrolled in and attend B School, H Town from Term 1, 2021”, the directions listing the matter only referred to a determination of Y’s secondary schooling being determined;

   b)In any event, the mother says Z should be entitled and it is in her best interests that she continue to attend J School for her final year of 2021.  The mother says Z is happy at the school, has many friends and is “strongly engaged” with the school Chaplain;

   c)Y should attend G School where his older sister Q presently attends;

   d)J School (which finishes at grade six) is a “feeder” school for G School and it is therefore likely that Y can maintain consistency with his peers, existing friends and social network;

   e)G School is less than 10 minutes’ drive from the mother’s home, whilst B School is approximately 40 minutes away, and the public transport journey from the mother’s home to B School is more difficult;

   f)The mother says B School would be “problematic” if an equal time regime (as she seeks) were finally ordered, and is “less accessible”;

   g)The mother does not deny discussions took place, before she decided to relocate from in L Region (with W), about Y and Z attending B School, however her decision to rent accommodation in the vicinity of the children’s current primary school was a considered decision;

   h)The mother says that W currently attends J School.  The baby R (aged two months) makes the household a little busier – increased when her partner Mr AA exercises time with his biological children S (10 years) and T (seven years) who live primarily with their mother.  The father, who indicated in his Affidavit an intention to be solely responsible for any school fees at B School, was alert to the mother’s busy household, offering (at paragraph 99) that Ms K and he “are prepared to pick the children up from B School on changeover day as we would already be picking U up from B School, and drive them to Suburb N McDonalds or another location which would not make it more onerous for Ms Otley to pick up the children”.  He also offered to support the mother at times when she was unable to collect the children.

2. The recently appointed Independent Children’s Lawyer Mr Carter made a brief submission but did not have a firm position of support for either particular proposal.

Discussion

1. It is unfortunate, as a matter of timing, that the Court is asked to make an interim decision on such an important issue as to where Y (at least) begins secondary school in 2021 where:

   a)the last family report (prepared from interviews conducted in May 2019) did not deal specifically with this situation; is otherwise untested and was prepared in the context of the mother living, at that time, in L Region;

   b)an updated family report has been ordered and is likely to be available by the end of November 2020, which is likely to consider issues such as the competing proposals and schooling;

   c)Y, in particular, who has no choice but to leave J School at the end of 2020, is well aware of the different views his parents hold and would benefit from having some determination as to which school he commences in 2021; and

   d)it is readily apparent, and hardly surprising, that each parent has reasons for their preference which, not coincidentally, would reduce (in the father’s household) the travel that he has been required to undertake now for over two years but maintain the less travel for the mother’s household if G School is selected for Y and no change for Z.

2. Like all parenting decisions, the paramount consideration is the best interests of the children.  For the reasons that follow, I will order, on an interim basis, that Y commence at G School for 2021, and that Z continue at J School, both until further order because:

   a)I would treat with caution what each parent says the children have expressed to them as their “wishes” about schooling.  They have been exposed to parental disharmony for over two years now and they might be inclined to tell each parent what they think the parent wishes to hear;

   b)although there is no legal presumption in favour of the parent with whom the children primarily reside, the reality of such a fact has relevance (see Re G:  Children’s Schooling (2000) FLC 93-025). However a trial within the first six months of 2021 will likely determine the final parenting arrangements and any schooling issue can be revisited then. The parents should draw no comfort, or discomfort, from this interim decision or fear it is likely to create some form of immovable “status quo”;

   c)in my view, Z should not be required to leave her current school with one year to go.  I accept that whilst she appears to be a child capable of adjusting to her circumstances, being the “big kid” in her school year is not insignificant and her history and connectedness with J School is not criticised by the father.  Inevitably she will also have to change to a different school at least by the end of 2021;

   d)Y seems a child likely to adjust to a new school as he must do.  His history within J School means it is likely more of his friends will feed into G School – making the initial transition easier.

3. I accept that, at the final trial of this matter, the Court may be confronted with the same arguments advanced before me on an interim basis and come to a different final order.

4. However the change of Y now to B School – in isolation apart from some friends he knows that the father refers to in his Affidavit – should not occur until the final contested parenting trial has been undertaken.

5. In making this interim decision, I accept that the children and the father’s household are not relieved for perhaps the first term of 2021 from the travel commitment they have experienced – and will experience even on the father’s case for the final term of 2020.  However, as the father properly concedes, Y should be entitled to attend J School for the rest of the 2020 school year.

6. The parenting arrangements over the Christmas school holidays are agreed to be essentially week-about.

7. Clearly, with the parents entitled to choose where they live, the journey between the parents’ homes remains in the order of 50 minutes.  I accept that this distance to travel is not optimal and may well impact on the consideration of whether an equal time arrangement is reasonably practicable.  However that is a matter best left to trial.

8. For completeness, although other more equidistant secondary schools such as P School was raised in the material (and may be a proposal raised at the final hearing), it really did not arise as a serious proposal from either of the parents on an interim basis.

9. For the reasons articulated, I make an order on an interim basis pending final order, that Y be enrolled in and attend G School from the commencement of the 2021 school year.

10. There is no need to make any orders for Z to continue attending J School.

11. The parties’ costs of the interim hearing will be reserved to the trial judge.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 24 September 2020.

Associate: 

Date:  24 September 2020