PACHATZ and PACHATZ - [2011] FMCAfam 179

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PACHATZ & PACHATZ

[2011] FMCAfam 179

FAMILY LAW – Parenting – unilateral change of child’s school by parent – injunctions relating to a child.

Family Law Act 1975, ss.11C, 11F, 60CA, 60CC, 61DA, 62B, 64B, 65DAA, 65DA, 68B, 114

Goode & Goode (2006) FLC 93-286
Newlands & Newlands (2007) FamCA 168

Applicant:

MR PACHATZ

Respondent:

MS PACHATZ

File Number:

SYC 7025 of 2008

Judgment of:

Monahan FM

Hearing date:

4 February 2011

Date of Last Submission:

4 February 2011

Delivered at:

Sydney

Delivered on:

4 February 2011

REPRESENTATION

Counsel for the Applicant:

Mr Dura

Solicitors for the Applicant:

Champion Legal Pty Ltd

Counsel for the Respondent:

Self-represented litigant

Solicitors for the Respondent:

None

ORDERS

THE COURT ORDERS THAT:

All extant applications be adjourned to this Court on 18 February 2011 at 10:00am for mention (“the mention hearing”).
Pursuant to s.11F of the Family Law Act 1975 (“the Act”), the parties attend a Child Dispute Conference with a Family Consultant in this Registry on 16 February 2011 at 2:00pm and, pursuant to s.11C of the Act, such conference be reportable.

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

The parties have equal shared parental responsibility for [X], born [in] 2004 (“the child”).
The child live with the father:
(a)from after school Friday, 4 February 2011 to before school Monday, 7 February 2011; and thereafter
(b)in a fortnightly cycle commencing Monday, 7 February 2011 as agreed, or failing agreement:
(i)in Week 1 from after school Thursday to before school Friday; and
(ii)in Week 2 from after school Monday to before school Tuesday, and from after school Friday to before school Monday;
and live with the mother at all other times.
The parties forthwith do all acts and things necessary to cause the

re-enrolment of the child in [H] School.

AND THE COURT NOTES THAT:

(A)The purpose of the mention hearing is to consider the Child Dispute Conference Memorandum, interim parenting arrangements for the school term and end of year holidays and further directions.
(B)The parties are authorized to provide a photocopy of these Orders to [H] School and [L] School if needed.
(C)If the child is removed from [H] School or enrolled elsewhere, the Court may consider the granting of injunctive relief.
(D)The parties were encouraged to request [H] School to enquire of
[L] School as to the work completed by the child in the week ending
4 February 2011 in order to better aid the child’s transition between the schools.
(E)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (“the Act”), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Pachatz & Pachatz is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 7025 of 2008

MR PACHATZ

Applicant

And

MS PACHATZ

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by MR PACHATZ (“the father”) against

MS PACHATZ
(“the mother”) seeking various parenting orders with respect to the child of their relationship, [X], born [in] 2004 (“[X]”). More specifically, the father is seeking interim and final orders to the following effect:
·firstly, that the parties have equal shared parental responsibility for [X];
·secondly, that [X] live with the father on a five nights per fortnight basis, potentially increasing to a six nights per fortnight basis; and
·thirdly, that each party spend time with [X] for one half of the school holidays.
The father is also seeking interim orders to restrain the mother from changing [X]’s school from [H] School to [L] School, but as this change in schools has already occurred, he is really seeking that the mother cause [X] to be re-enrolled in [H] School. The father relies on the affidavits that he has filed in these proceedings and he is legally represented today by Mr Dura of counsel.
The mother, in her Response filed today, opposes the orders sought by the father. In relation to parenting matters, the mother seeks orders to the following effect:
·firstly, that the parties have equal shared parental responsibility for [X];
·secondly, that [X] live with her “65%” of the time, which would equate to nine (9) nights per fortnight (“the 5/9 arrangement”);
·thirdly, that [X] spend one half of each school holidays with each party; and
·finally, an injunction preventing the father from removing [X] from [L] School.
The mother also has indicated in her Response that she has no objection to the paternal grandmother, Ms P, spending time with [X] for three (3) hours per week, as agreed.
The mother has also filed an affidavit in these proceedings sworn on

3 February 2011 and filed on 4 February 2011.
The mother is self-represented today, although her response indicates that a law firm from Camden, NSW, is representing her. It is, however, noted that the address for service is the mother’s address. In any event, the mother indicated to the Court at the commencement of these proceedings that she had received legal advice prior to the hearing but was representing herself today.

Background

The parties, it would appear, commenced cohabitation upon their marriage [in] 2000 and they separated on 22 May 2008.

A divorce order was made by Registrar Cater-Smith on 20 August 2009.
From the file, it appears that Registrar Crawford made property orders with the consent of the parties on 13 January 2009. There have been no parenting orders made by this or any Court from the time of their separation up to today.
Both parties have, on their own evidence, re-partnered. The father has re-partnered to Ms R and the mother to Mr T. The father has also recently fathered a child with Ms R, [Y], who is about a week old.
It would appear the parties have had a parenting arrangement in place for some time, and that parenting arrangement is probably best articulated in Annexure “C” to the mother’s affidavit, which states that, in a fortnightly cycle in week 1, [X] lives with the father from after school Thursday to before school Friday. In week 2, [X] lives with the father from after school Monday to before school Tuesday, and from after school Friday until before school the following Monday.
The current dispute has arisen following the mother’s decision during the second half of last year to move her residence from [N] to [B] to enable her to cohabit with her partner, Mr T. Associated with the mother’s move was her wish to enrol [X] in [L] School, which, according to Google Maps, is located approximately 7.9 kilometres from the mother’s new home.
Again according to Google Maps, [L] School is located approximately 41.8 kilometres from the father’s home.
The mother had, following separation, lived in the former matrimonial home at [W] until its sale in October 2008. She moved to rented premises at [N] in November 2008 and, according to her evidence, [X] was initially enrolled in kindergarten at [W] School but was later enrolled in and commenced attending [H] School.
[X] remained at [H] School until the end of the school term last year, having completed kindergarten and Year One at that school in 2009/10.
It is agreed between the parties that the mother unilaterally ended [X]’s enrolment at [H] School and enrolled her at [L] School, which she apparently began attending on 31 January 2011, that is, four days ago.
It is also agreed that the mother thus altered [X]’s enrolment over the objections of the father. There is evidence that both schools are aware of the dispute between the parties. The father commenced these proceedings by his Initiating Application filed on 22 December 2010, which was initially returnable in March 2011. The father subsequently filed an Application in a Case on 20 January 2011 and an Application for Review. As a consequence of the filing of those documents, the Court determined that the matter should be listed for hearing today.

Issues

The dispute today focuses on three areas:
·the respective injunctions sought by the parties in respect of [X]’s school;
·the associated issue of equal shared parental responsibility; and
·the issue of the interim spend time arrangements pending agreement between the parties to the contrary or final hearing, whichever occurs first.
At this point, it should be clearly recognised that the issue of the child’s school should not solely determine the interim spend time arrangements. That said, the child needs to be enrolled in and attending school as the law requires.

Agreed and disagreed facts

The parties agree (or are not in significant disagreement) in respect of the following points:
·there are currently no interim or final parenting orders in place;
·the parties have made joint decisions about [X] in the past, although the mother impliedly asserts in her affidavit that it was her decision to commence [X]’s schooling at [H] School rather than at [W] School;
·in more recent times, [X] has been living with the parties on the 5/9 arrangement;
·that the parties underwent mediation in the latter part of 2010 in an attempt to resolve the school dispute;
·the mother unilaterally ended [X]’s enrolment at [H] School and did enrol her at [L] School;
·[X] has in the past engaged in extracurricular activities, including swimming and soccer, in the [H] area; The mother is living in rental accommodation in [B] and the father has purchased a property at [N];
·during 2010, there was a definite pattern of the paternal grandmother collecting [X] from school once a week to facilitate [X]’s attendance at a [sport omitted] lesson;
·
[X] has not spent any overnight time with the father since

25 January 2011. The mother admits she has kept [X] from overnight time with the father since last week and she asserts that this was necessary to assist [X] to transition to the new school at which she started on 31 January 2011; and
·
[X] has a history of attending before and after school care at the [H] School, and the mother acknowledges that she will be utilising before and after school care available at [L] School. This is necessary because the mother works on a full-time basis at a location that, according to Google Maps, is approximately

16.5 kilometres from [H] School. The mother works on a full-time basis and her core work hours are from 8.30 am till 4.30 pm. The father also works full-time in the city of Sydney.

The parties’ submissions

Both parties provided the Court with oral submissions: the father by his counsel, Mr Dura, and the mother in person. The transcript will reflect the parties’ submissions made to the Court today. The father also provided the Court with a written case outline document.

Law and discussion

All parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (“the Act”). Parenting orders are defined in s.64B of the Act. Parenting orders may deal with where a child is to live, the time the child is to spend with another person, or otherwise allocate parental responsibility in relation to that child.
At this point, the Court notes that the guiding principle, articulated in s.60CA of the Act, states:
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
Sections 60CA through 60CC of the Act deal with how the Court determines the best interests of the child. Most pertinent to today’s proceedings would be the primary considerations in s.60CC(2) and, of course, the additional considerations in s.60CC(3), where relevant. These will be examined in greater detail shortly.
As this matter involves injunctions, a brief summary of the law of injunctions is in order.
Injunctions, it would be fair to say, are one of an array of orders which the courts have developed to protect the integrity of the legal process. In children’s matters, or disputes between formerly married parents, which is, in fact, the case here, the powers of the Court to grant injunctive relief arises from s.68B, and perhaps, in relevant cases, s.114, of the Act. In any event, the Court has an inherent power to regulate its proceedings.
Section 68B is directed to children, but includes adults in a situation associated with a child. It is the primary source of injunctive power in areas relating to children. Of some relevance in this case is s.68B(1)(d) which states:
“(1) If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
…
(d) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of a person referred to in paragraph (b).
(ii) a specified area that contains a place of a kind referred to in subparagraph (i).”
Relevantly, “a person referred to in paragraph (b)” includes a parent or a child.
Of more specific relevance to this case is s.68B(2), which states:
“A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.”
Regardless of whether the injunction is granted under ss.68B(1) or 68B(2), the following provision contained in s.68B(3) is relevant:
“An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.”
There is a clear overlap between ss.68B(1) and 68B(2), in that similar orders can be made under either provision. However, the former is a stand-alone or independent power – there is no necessity for the existence of other proceedings – whereas the latter is ancillary, that is, it only operates where there are existing proceedings and is called upon in aid of those proceedings. The subsections are expressed in somewhat different terms for reasons which do not seem altogether clear, but in any event, the differences have little practical significance.
It appears that in the exercise of these powers the best interests of the child are an important but not paramount consideration, and the case law seems to support the outcome (given the different wording) that the welfare of the child guides, but does not dominate, the granting of injunctive relief.
With respect to parental responsibility, there is an issue that needs determination. Without an order, the effect of the Act would be that parental responsibility would be exercised by both parents, either jointly or independently. Of relevance here are the comments of the Full Court of the Family Court of Australia (“the Full Court”) in a case called Newlands & Newlands (2007) FamCA 168, in particular, at paragraph 91.
Nevertheless, there is a presumption which the Court needs to apply, and that is provided in s.61DA(1), which states:
“When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal parental responsibility for the child.”
Section 61DA goes on to state the situations where it does not apply. For example, s.61DA(2) refers to child abuse and family violence situations. That is not applicable to this case.
Section 61DA(3) goes on to say that the presumption does not necessarily apply in interim proceedings, which the present hearing is, if the Court does not consider it appropriate. However, for reasons which will be outlined below, the Court believes that this is an appropriate case in which the presumption should apply.
Finally, the presumption may be rebutted if it would not be in the best interests of the child. So, clearly, the same considerations that guide the making of a parenting order are relevant to the issue of parental responsibility. If the presumption is not rebutted or if an order for equal shared parental responsibility is made, that triggers the Court having to analyse s.65DAA of the Act; that is, whether the child’s best interests would be served by making an order that she (in this case) spend equal time or, alternatively, substantial and significant time, with each parent.
The Court notes that equal time is not contended for in this case, but that there is an issue of substantial and significant time. That said, both parties are clearly proposing that substantial and significant time be spent between [X] and the father. Either outcome requires the Court to consider whether the making of an order for substantial and significant time is both in the child’s best interests and reasonably practicable given the circumstances.
The Court further notes that the relevant provisions that the Court needs to consider in this regard are s.65DAA(3) – and it is clear that I would note that both proposals allow for weekday and weekend time – and s.65DAA(5), which deals with issues such as how far apart the parents live, which is indeed a relevant factor in this case.
The other issue to be borne in mind today is that this is an interim hearing and, consequently, the Court is bound by the Full Court’s decision in Goode & Goode (2006) FLC 93-286 (“Goode”). Paragraph 81 of that decision is particularly apt. There, their Honours Bryant CJ, Finn and Boland JJ said:
“In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child.”
Clearly this is such a case. More specifically, their Honours’ comments raise the reality that a court cannot fully determine issues of credit at an interim hearing, as the evidence being presented by the parties has not, as yet, been tested by cross-examination. That said, the Full Court made it clear in Goode that the legislative pathway must be followed. In other words, the relevant provisions of the Act, post the 2006 Shared Parenting amendments, must be adhered to.
There is clearly disagreement between the parties in this case and if the matter does proceed to final hearing, obviously their evidence will be tested by cross-examination.

Primary considerations: s.60CC(2)

Section 60CC(2)(a) requires the Court to consider the benefit of the child having a meaningful relationship with both of the child’s parents. At this point it should be noted that “meaningful” does not mean “equal”, but it clearly signifies that both parties should be involved with their child and, consequently, signifies an expectation of time to be spent. The right of the child to spend time with each parent and extended family is the right of the child’s. Hence, the Court will, in all likelihood, need to give considerable weight to this factor at a final hearing, should the matter proceed to that point.
The Court also is required under s.60CC(2)(b) to consider the need to protect the child from physical or psychological harm and being subjected to or exposed to abuse, neglect or family violence. Sadly, courts are often faced with having to consider such facts. It is pleasing to note that those facts are not present in the instant case.
That said, there is no doubt that it would be in a child’s best interests as a general proposition to maintain a meaningful relationship with both parents. That premise needs to be balanced with the need to protect a child from any physical or psychological harm. Clearly, evidence is required for the Court to consider this and, as stated, the Court is satisfied that there is no evidence which gives cause for concern here.

Additional considerations: s.60CC(3)

With respect to the additional considerations in s.60CC(3), the Court notes that issues such as any views expressed by the child, the nature of the relationship between the child and each of the child’s parents, the willingness and ability of each parent to facilitate a close and continuing relationship and so on will be fleshed out in the fullness of time at a final hearing.
A Family Report, if ordered, will greatly assist the Court reaching a decision which finally determines matters between parties.
As to the issue of the willingness and ability of each of [X]’s parents to encourage a close and continuing relationship between [X] and the other parent, that is a live issue in this case. The mother has made a unilateral decision to remove [X] from the school that she had attended for some two years and enrolled her in a new school.
The Court understands the mother’s reasons for this action. The Court also understands the father’s concerns about the impact that this will have on his relationship with [X]. The Court accepts the father’s argument that the mother had an opportunity to seek a legal solution to this dispute prior to today.
Also, the Court is required to consider the likely effect of any change in [X]’s circumstances. Clearly there has been a very recent change for [X]. If that change remains in effect, then there must be a proper examination of the reasons for it. The more cautious approach may be to return the parties to the situation that prevailed in late 2010 until the investigation is complete.
As to any other fact or circumstance, the change in school has only occurred on Monday. That is four days ago. If the change is cemented into an interim order then it would be fair for the father to assert that the mother has seized, using Mr Dura’s words, “the balance of power” in matters of parental responsibility.
It is of some concern that the mother acknowledges withholding [X] from overnight time with the father since 25 January 2011 to assist [X] in the transition to her new school-related circumstances. While the logic behind this is understood, it is an example of parental responsibility being exercised unilaterally.
There are issues of significant travelling times to consider in this case. Given the mother’s decision to relocate to [B], this will be an ongoing issue for [X] and the parties, regardless of which school [X] attends.
Both parties work. The father’s place of work is considerably further away from the schools proposed by the parties than is the mother’s place of work. The mother’s workplace is actually closer, in terms of distance, to [H] School than [L] School.
Both schools are aware of this dispute and there is evidence that

[H] School is able to accommodate [X]’s return to that school should that be the outcome.
There is evidence that [X] has been progressing well at [H] School. This may be seen from the recent school report attached to the affidavit of the father, which interestingly makes no reference to the possibility of the child leaving that school at the end of 2010.
There is evidence that the child would need after school care, regardless of which school she attends, and that such can be accommodated by either school.
Lastly, there is evidence before the Court that the mother’s decision to unilaterally enrol the child in a new school was made in the full knowledge that legal proceedings may follow to stop or reverse such action.

Conclusion

Having considered the respective applications and submissions in light of the available evidence and relevant statutory provisions, the Court is satisfied that, until further order, both parties should have equal shared parental responsibility for [X], and that [X] should live with the parties in accordance with the arrangements that existed until very recently.
The Court is also satisfied that, until the Court can consider the matter on a final basis, [X] should return to [H] School from Monday,

7 February 2011.
The consequence of such a decision will be an order today for both parties to cause [X]’s re-enrolment at [H] School. Unless the parties agree to the contrary, if, without further order of the Court, the child is subsequently removed from that school or is enrolled elsewhere, the Court will not hesitate to consider further injunctive relief.
The Court has also formed the view that the parties would benefit from attending a child dispute conference and it is noted that the parties are hoping to obtain an appointment for next week. It is therefore appropriate that this matter be listed at the earliest available opportunity to consider further directions.
There will be Orders of the Court reflecting this decision.
The Court reserves the right to settle these reasons.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Monahan FM

Associate:

Date: 10 March 2011