PACKHAM & CROMWELL

[2018] FCCA 2029

FEDERAL CIRCUIT COURT OF AUSTRALIA

PACKHAM & CROMWELL [2018] FCCA 2029

Catchwords:
FAMILY LAW – Parenting – whether the children should spend equal time with their father commencing in 2020 – which schools the children should attend.

Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA
Social Security Act 1991, ss.198, 954

Applicant: MS PACKHAM

Respondent: MR CROMWELL

File Number: MLC 5871 of 2016

Judgment of: Judge Riley

Hearing dates: 9 and 10 July 2018

Date of last submission: 10 July 2018

Delivered at: Melbourne

Delivered on: 26 July 2018

REPRESENTATION

Advocate for the applicant: Mr McDermott

Solicitors for the applicant: James McDermott & Associates

Counsel for the respondent: Dr Alexander

Solicitors for the respondent: Kennedy Guy

ORDER BY CONSENT

1. The father and the mother have equal shared parental responsibility for [X] born on 2006 (“[X]”), [Y] born on 2007 (“[Y]”) and [Z] born on 2008 (“[Z]”).

ORDERS BY THE COURT

1. [X], [Y] and [Z] live with their mother.

2. During school terms, [X], [Y] and [Z] spend time with their father from after school on alternate Fridays until the start of school on the following Wednesday.

ORDERS BY CONSENT

1. [X], [Y] and [Z] spend time with their father:

   (a)for one half of all school term holidays and Christmas holidays as agreed or, in default of agreement, on a week about basis from Friday to Friday, to commence with the parent in whose care [X], [Y] and [Z] would otherwise be on the last day of the school term;

   (b)if Father’s Day does not fall on a weekend when [X], [Y] and [Z] would be with their father pursuant to order 3, then they spend time with their father from 12md until 8:30pm on Father’s Day;

   (c)if the father’s birthday falls on a day when [X], [Y] and [Z] would not be with their father pursuant to order 3, then [X], [Y] and [Z] spend time with their father on his birthday:

   (i)from 3:30pm until 8:30pm if the father’s birthday falls on a school day; and

   (ii)from 12md until 8:30pm if it falls on a non-school day;

   (d)if [X], [Y] and [Z]’s birthdays fall on days when they would not be with their father pursuant to order 3, then [X], [Y] and [Z], spend time with their father:

   (i)from 3:30pm until 6pm on [X], [Y] and [Z]’s birthdays when they fall on a school day; and

   (ii)from 12md until 6pm when they fall on a non-school day;

   (e)on Christmas Day from 11am until 4pm in 2018 and every even numbered year thereafter, and from 4pm until 9pm in odd numbered years;

   (f)on Christmas Eve from 11am until 4pm in 2018 and every even numbered year thereafter, and from 4pm until 9pm in odd numbered years;

   (g)on New Year’s Eve from 5pm until New Year’s Day at 4pm in 2018 and every even numbered year thereafter;

   (h)on Easter Sunday from 11am until 4pm in odd numbered years, and from 4pm until 9pm in even numbered years; and

   (i)such further time and communication as may be agreed between the parents.

2. [X], [Y] and [Z]’s time with their father be suspended as follows:

   (a)if Mother’s Day does not fall on a weekend when [X], [Y] and [Z] would be with their mother, then they spend time with their mother from 12md until 8:30pm on Mother’s Day;

   (b)if the mother’s birthday falls on a day when [X], [Y] and [Z] would not be with their mother, then [X], [Y] and [Z] spend time with their mother on her birthday:

   (i)from 3:30pm until 8:30pm if the mother’s birthday falls on a school day; and

   (ii)from 12md until 8:30pm if it falls on a non-school day;

   (c)if [X], [Y] and [Z]’s birthdays fall on days when they would not be with their mother, then [X], [Y] and [Z], spend time with their mother:

   (i)from 3:30pm until 6pm on [X], [Y] and [Z]’s birthdays when they fall on a school day; and

   (ii)from 12md until 6pm when they fall on a non-school day;

   (d)on Christmas Day from 11am until 4pm in 2019 and every odd numbered year thereafter, and from 4pm until 9pm in even numbered years;

   (e)on Christmas Eve from 11am until 4pm in 2019 and every odd numbered year thereafter, and from 4pm until 9pm in even numbered years;

   (f)on New Year’s Eve from 5pm until New Year’s Day at 4pm in 2019 and every odd numbered year thereafter;

   (g)on Easter Sunday from 11am until 4pm in even numbered years, and from 4pm until 9pm in odd numbered years; and

   (h)as otherwise agreed in writing.

3. All changeovers take place at [X], [Y] and [Z]’s school/s or such other place as the parents agree from time to time in writing, including by text message, and, failing agreement, at the home [X], [Y] and [Z] have been residing in.

4. Each parent be at liberty to Skype or telephone [X], [Y] and [Z] between 6pm and 8pm on the first and every alternate day of the days they are in the care of the other parent pursuant to these orders.

5. Each of the parents be permitted to liaise directly with [X], [Y] and [Z]’s school/s and to receive notices, information, newsletters, school reports, order forms for school photographs, parent teacher appointments, and information about extra-curricular activities involving them.

6. Each parent be at liberty to attend at [X], [Y] and [Z]’s school/s for the purposes of parent and teacher interviews, school concerts and such functions or events as parents are normally invited to attend.

7. Each of the parents be restrained from enrolling or committing [X], [Y] and [Z] or any of them to any activity that is scheduled to or does occur on a day [X], [Y] and [Z] are living with or spending time with the other parent pursuant to these orders without first obtaining the other parent’s agreement in writing.

8. The parents keep each other promptly informed of any medical or health issues affecting [X], [Y] and [Z] or any of them, and any other information relating to the care, welfare and development of them or any of them via a communication book as soon as practicable, with such communication book to be placed in a travel bag and exchanged between the parents at or prior to changeovers.

9. Each of the parents make available to the other any medications prescribed for [X], [Y] and [Z] or any of them to administer when [X], [Y] and [Z] are with the other parent, and the other parent thereafter administer the medication as prescribed or required.

10. Each parent authorise and direct [X], [Y] and [Z]’s medical practitioner/s to keep both of the parents informed in relation to [X], [Y] and [Z]’s health and any medical treatment that may be given or recommended.

11. Each of the parents inform the other and keep him or her informed of his or her residential address and contact telephone number and of any change thereto within 24 hours of the change.

12. Neither parent take or send [X], [Y] and [Z] to a place outside the State of Victoria, or any place for an intended duration of seven days or longer (“the proposed holiday”), without having notified the other parent not less than 30 days prior to the commencement of the proposed holiday, and the other parent not unreasonably withhold his or her consent to the proposed holiday.

13. Each parent:

    (a)attend the Parenting Orders Program at CatholicCare in Suburb 4 (“the Program”) for assessment and family counselling;

    (b)follow the recommendations of the Program administrator; and

    (c)complete all aspects of the Program required by the Program administrator.

14. On the day that the applicant first attends the Program for assessment, the applicant provide to the Program administrator a copy of any family report relating to the parents and their children, or any of them.

15. If, following the completion of the Program, either parent considers that the communication or parenting relationship between them is inadequate, then the parents participate, at their equal shared expense, in parenting counselling with Relationships Australia, Centacare, or a similar organisation.

ORDERS BY THE COURT:

1. [X], [Y] and [Z] finish their primary school education at School A in Suburb 3.

2. [X], [Y] and [Z] undertake their secondary school education at School B in Suburb 5.

3. Pursuant to s.65DA(2) of the Family Law Act 1975, 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 Attachment A and these particulars are included in these orders.

DIRECTION:

1. The Deputy Principal Registrar refer this matter to the Commonwealth Department of Human Services for investigation into whether the mother has defrauded the Commonwealth of Australia in relation to her receipt of carer payment, and, for that purpose, the Deputy Principal Registrar may give the Department a copy of any document on the court file in this matter, including the transcript of the mother’s evidence, particularly at page 10.

NOTATIONS

(A)Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

(B)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5871 of 2016

MS PACKHAM

Applicant

And

MR CROMWELL

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for parenting orders in respect of [X], born on 2006 (“[X]”), who is 12 years old and in grade 6, [Y], born on 2007 (“[Y]”), who is 11 years old and in grade 5, and [Z], born on 2008 (“[Z]”), who is 10 years old and in grade 4.

2. Happily, the children in this case have close, warm and trusting relationships with both of their parents.[1]

   [1]     Family Report, Ms R, [57].

3. The issues to be determined in the present case are:

   a)whether the children should continue to live with their mother and spend five nights a fortnight with their father or whether they should spend equal time with each parent;

   b)whether [Y] and [Z] should continue to attend at School A in Suburb 3 to complete their primary schooling or should attend Suburb 1 starting next year; and

   c)whether the children should attend high school at School C in Suburb 4, which is accessible from, and relatively close to, their father’s home, or School B in Suburb 5, which is accessible from, and relatively close to, their mother’s home.

4. The mother is 52 years old and the father is 44 years old.  They were married on 2001.  They separated on 1 July 2014, but continued to live separately in the former matrimonial home in Suburb 3 until about 1 July 2015.  On that date, the father vacated the former matrimonial home, and moved in with his parents.

5. Following the father moving out of the former matrimonial home, the children continued to live predominantly with their mother.  The children’s time with their father gradually increased.  By orders made by consent on 13 December 2016, the children spent with their father:

   a)from after school on alternate Fridays until before school the following Wednesday;

   b)half school holidays; and

   c)time on special occasions.

6. That 9:5 arrangement has continued until the present time.

7. On 14 September 2017, final property orders were made by consent.  They provided for:

   a)the father to pay the mother $545,000;

   b)the mother to vacate the former matrimonial home;

   c)the father to retain the former matrimonial home; and

   d)the father to retain his collection of classic cars.

8. On 12 January 2018, the mother moved out of the former matrimonial home and moved in with her sister, [A], who lives in Suburb 1.  [A] has a four bedroom home.  She and the mother share one bedroom.  Ms E’s daughter, Ms J, and Ms J’s husband, Mr L, share another bedroom. [X], [Y], and Mr L’s seven year old daughter, [A], share another bedroom.  [Z] and Mr L’s son, [B], share another bedroom.

9. Until they moved to Suburb 1 in January 2018, [X], [Y] and [Z] had lived their whole lives in Suburb 3.  To this point, they have only ever attended school at School A in Suburb 3.  Since moving to Suburb 1, the mother has driven the children to School A, and, on the days that she does so, also takes her niece’s step-children to the same school.  Some days, the mother stays at School A to work at the school in a voluntary capacity. Sometimes, the mother travels on to her mother’s home in Suburb 6.  The mother receives carer’s payment and carer’s allowance for the assistance she gives her mother.

10. However, the mother does not wish to continue driving the children to Suburb 3 after the end of this year.  She wants them to transfer to schools in the Suburb 1 area.

11. Part of the mother’s motivation in wanting the children to change schools is the expense of driving.  The trip from Suburb 1 to School A is about 30 minutes each way.  Except for a short period of casual work in 2014, the mother has not worked outside the home since 2006, shortly before [X] was born.  She receives:

    a)family assistance of $100 per week;

    b)family tax benefit A and B of $100 per week;

    c)carer payment of $335 per week;

    d)carer allowance of $63 per week; and

    e)child support of $230 per week. 

12. That works out to about $828 per week, or $43,056 per year tax free.  The mother said that she intended to return to work when [Z] starts high school in 2021.

13. The father has been a (occupation omitted) for 26 years.  He is currently employed at the (employer omitted) in Suburb 2 as a (occupation omitted).  He earns about $1,800 per week, or about $93,600 per year before tax and before the payment of child support.   

14. The mother has signed a contract to buy a block of land in Suburb 1.  The settlement is expected in 2018.  She plans to build a house on the block, which she expects to be finished by 2019. However, the mother accepted that the building may take longer.

Proposals, preferences and recommendations

1. In summary, the mother proposes that:

   a)the children continue to live with her and spend five nights a fortnight with their father;

   b)[Y] and [Z] attend Suburb 1 for their years 5 and 6 respectively from the start of 2019; and

   c)[X], [Y] and [Z] attend School B for their secondary schooling, with [X] starting in 2019, [Y] in 2020, and [Z] in 2021.

2. In summary, the father proposes that:

   a)the children live in a week about arrangement commencing from term 1 in 2020, when [X] will be in year 8, [Y] will be in year 7 and [Z] will be in year 6;

   b)the children each complete their primary schooling at School A; and

   c)the children each attend School C for their secondary schooling, with [X] to start there in 2019, [Y] in 2020 and [Z] in 2021.

3. The father indicated that he is prepared to give an undertaking to the court that he will pay all of the children’s school fees to attend School C.  He would have consented to an order to that effect, but the view was taken that, as this is a parenting matter only, the court has no jurisdiction to make such an order, the payment of school fees being a child support issue.

4. In interviews with a family consultant, Ms R:

   a)[X] said that she did not want to decide how many days to spend with each parent, but thought it should be equal or almost equal;

   b)[Y] and [Z] said they want the current 9:5 arrangement to continue;

   c)[X], [Y] and [Z] all expressed a wish to finish their primary schooling at School A;

   d)[X] is drawn to School C, where some of her friends will attend, but will accept her parents’ decision;

   e)[Y] would prefer to attend School B, because she does not like (omitted) schools;

   f)[Z] expects to attend whichever school [Y] attends; and

   g)the parents should attend counselling to improve their communication and their respect for each other as parents.

5. In summary, Ms R said in her written report that:

   a)for now, the 9:5 arrangement should continue;

   b)in a few years’ time, [Z] may seek more time with his father, and it may be appropriate to consider equal time at that point;

   c)the principal factor rendering equal time impracticable now is the fact that the two households are in separate communities with no public transport between them;

   d)[X] should complete year 6 at School A;

   e)[Y] should complete year 6 at School A if possible, which Ms R said in oral evidence meant financially possible;

   f)ideally, [Z] should complete year 6 at School A;

   g)if [Y] and [Z] are to move to Suburb 1, it would be better if they went in 2019; and

   h)the decision about secondary school rests on whether priority is given to the children’s current friendships and networks or new ones that they might create in the area where they predominantly live.

6. In her oral evidence, Ms R said, in summary, that:

   a)ideally, all the children should complete their primary schooling at School A;

   b)for secondary schooling, there are clear benefits to the children in remaining in the area where they have grown up, and maintaining their friendship groups and networks, but, if there is no alternative, for financial reasons and distance reasons, then they would adjust to a different school; and

   c)there would be a place for equal care in a year or two, particularly for [Z], who, as a boy, might benefit from more time with his father.

The distances between the schools, homes and father’s work

1. The father lives in Suburb 3. School A is also in Suburb 3.  School C is in Suburb 4, which is north of Suburb 3, and a little to the east of the Street Name, as is Suburb 3.  The father works in Suburb 2, which is closer to central Melbourne than Suburb 3 and slightly to central Melbourne.

2. The mother lives in Suburb 1, which is further north than Suburb 4, but to the west of the Street Name.  Suburb 1 Primary School is close to the mother’s home.  School B is to the west of the Street Name in Suburb 5, which is closer to central Melbourne than Suburb 1 but further than Suburb 4.

3. The mother said that there were buses that could take the children from her home to Suburb 1 Primary School and School B. School C is on a train line that goes through Suburb 3, where the father lives.

4. The mother conceded that, if the children attended School B, there would be no public transport options from Suburb 3, and either she or the father would have to drive the children to school on the days when they were staying at the father’s place for the whole of their secondary schooling.

5. Similarly, it was not disputed that there are no realistic public transport options from School C to the mother’s home.  If the children attend School C, the mother or the father will have to drive the children to school on the days when they are staying at the mother’s place.

6. It is a well-established rite of passage for children to get themselves to and from school when they are in high school.  It helps them to develop independence.

7. The father’s counsel provided an aide memoire (exhibit 1) of the distances between the parents’ homes, the father’s workplace and the proposed schools for [X], [Y] and [Z]. That aide memoire, which the mother’s advocate accepted as accurate, stated as follows:

   Father’s Proposal – current primary school School A Primary School, Suburb 3

   Father’s home in Suburb 3 to school:         1.5kms / 3 mins

   Mother’s home in Suburb 1 to school:        29kms / 30 mins

   (See map ‘RC2’ in Father’s trial Affidavit affirmed and filed 3 July 2018)

   Mother’s proposal – change to Suburb 1 Primary School, Suburb 1

   Father’s home in Suburb 3 to school:         27kms / 28 mins

   Mother’s home in Suburb 1 to school:        6.4kms / 8 mins

   (see map ‘C3’ in Father’s trial Affidavit affirmed and filed 3 July 2018)

   Father’s proposal – secondary school School C in Suburb 4

   Father’s home in Suburb 3 to school:         8-9kms / 12-14 mins

   Mother’s home in Suburb 1 to school:        23kms / 25 mins

   (see map ‘C4’ in Father’s trial Affidavit affirmed and filed 3 July 2018)

   Mother’s proposal – secondary school School B, Suburb 5

   Father’s home in Suburb 3 to school:         22kms / 25 mins

   Mother’s home in Suburb 1 to school:        12-14kms / 14-16 mins

   (see map ‘C5’ in Father’s trial Affidavit affirmed and filed 3 July 2018)

   Father’s proposal – primary and secondary schools

   Father’s home north to School C (7.6 kms) and then south to School A (9.1 kms) (extra 15 kms from current arrangement) and then to work in Suburb 2.

   Mother’s home in Suburb 1 southeast to School C and then to School A (31 kms) (same as current travel time)

   (see map ‘C7’ in Father’s trial Affidavit affirmed and filed 3 July 2018)

   Mother’s proposal – primary and secondary schools

   Father’s home northeast to School B and then to Suburb 1 Primary School (26 – 27 kms) and then to work in Suburb 2 (38 kms) making total 54-55 kms / 70 mins.

   (see map ‘C8’ in Father’s trial Affidavit affirmed and filed 3 July 2018)

   Mother’s home to Suburb 1 Primary School and then south to School B (12 kms / 14 mins)

   (see map ‘C7’ in Father’s Affidavit affirmed and filed 3 July 2018)

The mother’s carer’s payment and allowance

1. The mother agreed in cross-examination that, to be entitled to receive the carer’s allowance for her care of her mother, she had to have some daily interaction with her: Tr. p.10.  The mother said that she did not see her mother every day.  The mother said that she saw her mother mainly on Tuesdays, Thursdays and Saturdays and sometimes at night.  The mother said that, on some days, other family members saw her mother.

2. The mother said in her affidavit affirmed on 21 June 2018 at paragraph 37 that she does not only receive the carer’s allowance.  She said that she also receives the carer’s payment. 

3. Section 954 of the Social Security Act 1991 provides that a person is qualified for a carer’s allowance if she or he alone or with others provides care on a daily basis to the person in need of care.  There is no reason to doubt that the mother, with other relatives, visits her mother every day and cares for her.

4. Section 198 of the Social Security Act 1991 provides that a person is qualified for a carer’s payment if she or he personally provides constant care for a disabled person.  Constant care is explained in the Social Security Guide to mean an amount of personal care equivalent to a normal working day on a daily basis.  It seems that the mother may not meet that requirement.  Consequently, there is reason to suspect that the mother might be defrauding the Commonwealth. 

5. I will refer the matter to the Commonwealth Department of Human Services for investigation into whether the mother is fraudulently obtaining the carer’s payment.  However, for present purposes, the cross examination in relation to the mother’s social security payments did not go far enough to support a finding that the mother is dishonest, and that her evidence in this proceeding should not be believed.

The orders about extracurricular activities

1. On 13 December 2016, the parties consented to an order that:

   each of the parties be restrained from enrolling or committing the children or any of them to any activity that is scheduled to or does occur on a day when the children are living with or spending time with the other party pursuant to these orders without first obtaining the other party’s agreement in writing.

2. Notwithstanding that order, without the father’s agreement in writing, and without mentioning it to the father, the mother enrolled [X] and [Y] in (hobby) in or before March this year.  The team was scheduled to have training on Tuesdays and Thursdays and games on Sundays.  [X] and [Y] told their father they were playing (hobby).  Subsequently, the mother sent the father a text saying that she had arranged with the coach that [X] and [Y] would miss training every second Thursday and would miss a game every second Sunday when they were with their father.  In fact, the father has taken [X] and [Y] to training and games during their time with him.

3. The mother took the view that she had not breached the order, because she had arranged with the coach that [X] and [Y] did not have to attend training every second Thursday or the game every second Sunday.

4. However, the mother’s view does not take account of the fact that the order referred to any activity that is scheduled to occur when the children are with their father.  As mentioned, the training was scheduled to occur every Thursday and the games were scheduled to occur every Sunday.

5. Moreover, the mother’s attempt at exculpating herself for enrolling [X] and [Y] in (hobby), contrary to the order, was indicative of a deficiency in parenting.  One of the important reasons parents enrol their children in team sports is to help them learn to be team players.  That requires them to turn up for every training session and turn up for every game, whether it is convenient to their parents or not.  By making an arrangement that did not allow [X] and [Y] to participate fully as team members, the mother was teaching [X] and [Y] that it is not necessary to meet commitments to other people.

6. In my view, the mother’s flagrant disregard of the order indicates that she is not entirely honest in relation to this proceeding.  Her attempt at exculpating herself indicates that her approach to parenting, particularly of children approaching their teenage years, is somewhat deficient.

The mother’s property purchase

1. The mother said that she has entered into a contract to purchase a particular block in Suburb 1, about one kilometre from where she presently lives at her sister’s house.  Completion of the sale is conditional upon approval of a plan of sub-division, which is expected to occur in 2019.  The mother said in her oral evidence that the block cost $243,000.  She exhibited to her affidavit a cost estimate to build a house on the block, which had a base price of $195,800.  That adds up to $438,800.  The mother said in her affidavit that the total cost of the purchase would be about $500,000.  The difference may be explained by various costs that are over and above the base price. The mother received $545,000 in her property settlement in January this year.   Basically, she received about $45,000 more than she says she needs for the house she intends to acquire.

2. The mother said in her oral evidence that she had signed another contract to build a house on the block.  The father’s counsel criticised the mother for not producing copies of her contracts to purchase the block or build the house.  However, the father did not put it to the mother that she was lying about the contracts.  I accept that the mother has entered into contracts as she claimed. 

3. The mother told the court that her new house would be finished in 2019.  She told Ms R that it would be finished by the end of 2018.  Ms R said in her oral evidence that the delay in the mother obtaining more suitable accommodation could be an issue, and a bigger issue if the delay goes beyond 2019. 

4. The mother did not produce any documentary evidence about when her new house might be built.  As the mother herself said in her affidavit that completion of the purchase of the block was not expected until an unspecified date in 2019, it seems unlikely that the new house will be ready to occupy until late 2019.  That means that the mother and children are likely to continue to live at the mother’s sister’s house until late 2019, in very crowded circumstances.

5. The mother said in her affidavit that she was unable to buy a suitable property in the Suburb 3 area.  That was not disputed.  However, the mother did not say that she was not able to buy a suitable, but perhaps less showy, property closer to the father’s home, on the same side of the Street Name as him, for example, in Suburb 7.  The benefit of the mother living on the east of the Street Name would be that the children’s lives would be less bifurcated between two communities.  They may be able to attend a school that could be reached on the same train line, whether they were staying at their mother’s place or their father’s, and they may be able to independently visit friends and attend sporting commitments during their teenage years.

6. Obviously, there are ways that the mother could extricate herself from her contract, though it may mean losing the deposit, or the mother could sell the land or the land and house in due course.  However, for present purposes, I proceed on the basis that the mother will be living in the Suburb 1 area for the foreseeable future.  In deciding to live in that area, the mother has made things difficult for her children, particularly as they get older and should be becoming more independent.

Mother’s disregard of recommendations re primary school

1. As set out above, Ms R recommended that, if possible, the children finish their primary schooling at School A.  That was the recommendation in her family report and it was made abundantly clear in her oral evidence. Notwithstanding that recommendation, and notwithstanding that the mother had the opportunity to speak to her lawyer in the lunch break, the mother remained steadfast in her desire that [Y] and [Z] attend Suburb 1 Primary School starting next year. 

2. The mother said that her reasons are financial.  However, as discussed above, the mother in January 2018 received about $45,000 over and above her estimated cost of the purchase of a new property.  The mother estimated that the petrol and wear and tear on her car to drive the children from Suburb 1 to School A cost $80 per week.  That would work out to about $3,200 per year.  ($80 X 40 weeks, after allowing 12 weeks for school holidays.)  That would be about $8,000 for the rest of [Z]’s primary schooling.  Given that the mother received about $45,000 over her estimated cost of buying land and building a house, the mother’s financial position does not seem so tight that she could not meet the children’s needs by taking them to School A for the remainder of their primary schooling.  The mother’s unwillingness to do so is indicative of a lack of insight into her children’s needs.

The mother’s preference for School B

1. In her trial affidavit, the mother emphasised that:

   a)School B is a state school with minimal fees while School C is a school with substantial fees; and

   b)the travel times between Suburb 1 and Suburb 3 for School A and between Suburb 1 and Suburb 4 for School C are excessive.

2. However, at the trial, the mother said that she does not like School C.  She said that she just [does] not like the school, but was not suggesting that it is a bad school.  She said that she did not believe that the children should go to a Religious school just because the family is Religious.  The mother accepted that School A is a Religious school.  She said that the children were only going to School A for their primary education.

3. When pressed about why she did not want the children to go to a Religious secondary school, the mother said:

   I just meant the Religious school system has more funding, more things that can be done under the state system, compared to a Religious school system, and Religion is more based on religion and that.  They’re more – I just – I prefer the state system.  Even though I attended a Religious school, I prefer the state system, but that’s each to their own. …[2]

   [2]     Tr. p.32, l.25-29.

4. The mother said that she is a Religion.  She said that she did not object to Religious schools teaching Religious dogma.  It was common ground that the children will all be confirmed in the Religious church. However, the mother said in her affidavit that the family only went to church for weddings, christenings, confirmations and such like. 

5. The following exchange occurred after the passage set out above:

   Well, I’m just trying to get you to be more specific, if you can?‑‑‑The state school – I believe the state school has more funding and everything for education and sporting facilities and all that than the – the Religious school system is more based on religion.

   So you think the state system is better funded?‑‑‑Yes, but I could be incorrect.  I don’t have statistics on that.

   And did you say that you think that there’s too much focus on religion in the Religious secondary schools?‑‑‑Correct.

   So none of that says anything about School C specifically?‑‑‑That’s correct.  Yes.

   But is there anything about School C specifically ‑ ‑ ‑?‑‑‑No.

   ‑ ‑ ‑ that you don’t like?‑‑‑No.  I just don’t personally like the school, I’m sorry, your Honour.[3]

   [3]     Tr. p.33, l.1-16.

6. The mother took the children on a tour of School B, and they said they liked it.  However, the mother did not do any significant research on School B or School C.

7. The father said, without being challenged, that the children have cousins who already attend School C and friends at School A who will attend School C.  It was not disputed that School A is a feeder school for School C.  The mother agreed that the children do not presently know anyone who attends Suburb 1 Primary School or School B.

8. The father has done a lot of research in an attempt to compare School C and School B.  Unfortunately, most of his evidence had to be struck out because it expressed expert opinion that the father was not qualified to give.  However, the father also said, and I accept, that School C has a very good sports program and has supplied a number of players for state and national football teams.  All three children are interested in playing Sports.  [X] and [Y] represent School A in (hobby) in interschool sports.  The father was their assistant coach.  The father’s evidence was that School B has sporting programs as well but did not provide very much detail about them.  There is insufficient evidence to compare the two schools from a sporting perspective.

9. Notwithstanding the mother’s assertions, there is no evidence before the court to permit a finding that School B is better funded than School C. 

10. I found the mother’s claims that she does not like Religious secondary schools implausible.  It does not sit well with her choice to send the children to School A, which is a Religious primary school.  The mother was not able to point to anything solid about Religious schools in general or School C in particular that the court could rely upon to decide that School C is not suitable for the children in this case.  All the mother could say was that she does not like School C. 

11. Based on the mother’s dishonesty in not complying with the court order about not enrolling the children in activities during their time with their father, and the fact that the mother is unable to point to anything specific about School C that makes it unsuitable for the children, I simply do not accept the mother’s claims that she has any genuine objection to School C.  I consider that the mother claimed that she does not like School C but her real reasons for opposing that school are connected with travel times and with the fees it charges, as she mentioned in her trial affidavit.

The children roaming around Suburb 1 at night

1. The father said that [X] (aged 12) and [Z] (aged 10) told him that they and [A] (aged 7) and [B] (aged 8) wandered in darkness around Suburb 1, where the mother lives, collecting cans, copper and electric wire from building sites.  [X] and [Z] told the father that there was no adult present during this time.  [Z] said that, if a car approached, they would hide.

2. The mother said that [X] and [Z] did not go onto building sites and that, unbeknownst to the children, she was walking behind them, and Mr L and [Y] were following in a car.  Otherwise, the mother did not dispute the allegations.

3. I find the mother’s account implausible.  In view of my concerns about her honesty, I do not accept that the events occurred as she described.  That is, I accept the father’s account and, in particular, that there were no adults present and the children collected materials from building sites.  This is very poor parenting on the mother’s part.  The activity is potentially dangerous and possibly criminal, depending on precisely what was taken from the building sites.  [X] has reached the age of criminal responsibility.

The father’s agreement to pay school fees

1. As noted above, the father indicated that he would give an undertaking to the court to pay all of the school fees for the three children for School C for the whole of their schooling there.  The mother said that the court should not accept the claim that the father could afford to and would pay all of the school fees because:

   a)he had agreed to pay all of the school fees for School A and had not;

   b)his financial statement showed that he did not have enough money to pay all the school fees; and

   c)he was dishonest, because he had been ordered to wind up the Cromwell Family Trust and he had failed to do so.

2. The father did not enter into an agreement to pay all of the school fees for School A.  The parents had an agreement that they would pay half of the fees each.  During the currency of that agreement, the father said in an affidavit sworn or affirmed on 7 September 2017 that:

   In order for the children to remain attending School A, I am agreeable to meeting 100% of the cost of the school fees.

3. The matter was in court a week after that affidavit was sworn or affirmed and detailed orders were made.  However, there was no attempt to obtain from the father an undertaking to pay all of the school fees for School A.  In the absence of such an undertaking, the previous agreement for both parents to each pay half of the fees at School A remained on foot.  I do not accept that there was any concluded agreement for the father to pay all of the school fees for School A.  Consequently, his failure to do so was not a breach of any agreement.

4. The father’s financial statement was sworn or affirmed on 7 September 2017.  It preceded the property settlement in January 2018.  Obviously, the father’s financial circumstances have changed considerably since the date of his financial statement.  He is no longer living with his parents and he is now paying a substantial mortgage. However, based on the out of date financial statement, and the father’s current expenses, it is clear that the father would not be able to pay School C’s school fees out of his earnings. 

5. The financial statement indicated that the father’s earnings are $1,771 per week and he also receives family tax benefit of $44 per week, making a total of $1,815 per week.  The father did not claim to have had a pay rise since the date of his financial statement. From the $1,815 per week, the father said in his financial statement that he paid:

   a)$458 for income tax;

   b)$238 for child support;

   c)$17 for home and contents insurance;

   d)$30 for motor vehicle insurance;

   e)$17 for car registrations; and

   f)$570 for Part N expenses.

6. The father said in his oral evidence that he pays $545 per week for the mortgage. That totals $1,875, which is $60 per week more than the father’s weekly income.

7. The father said in his financial statement that he also pays each week $42 for a personal loan and $150 for credit card repayments. It may be assumed that the father has rolled those amounts into the mortgage, so I have not added those amounts to the father’s weekly expenses.

8. The father also said in his financial statement that he contributed from his earnings $174 per week as a personal superannuation contribution. The father said in his oral evidence that he is no longer making that payment. Consequently, I have not included it in the father’s weekly expenses. Otherwise, the father did not point to any ways in which he had decreased his expenditure or increased his income since the date of his financial statement.

9. The father said that the school fees for School C next year for [X] would be $6,960.  Assuming there were no price increases, that would amount to $41,760 for [X] over six years.  The father said that there was a 10% discount for a second child attending School C and a 25% discount for a third child.  So that would mean the cost for [Y] for six years would be $37,584, and the cost for [Z] for six years would be $31,320.  That makes a total of $110,664 for the three children for six years. [X]’s weekly fees would be $133, [Y]’s would be $120 and [Z]’s would be $100.  In 2021 to 2024 when the three children would all be at high school together, the fees would be about $350 per week.

10. It is clear that the father would not be able to afford School C’s school fees from his income for all three children for six years as things presently stand.

11. If the arrangements were changed from 9:5 to equal time, the father would presumably pay less child support.  There was no evidence about how much child support he would then be required to pay.  However, by my calculation, the difference would be about $60 per week.  Of course, rather than paying child support, the father would have to bear the greater cost of caring for the children for an extra two nights a fortnight.  All in all, I do not consider that a reduced level of child support would significantly alter the affordability of School C for the father.

1. The father said that he had a classic car worth $50,000 and another worth $30,000 which he intends to sell to pay for the school fees.  That makes $80,000.  He said that he had some other cars as well that he intends to sell.  However, on the father’s own figures, the cars are insufficient to pay all of the School C’s school fees, which will amount to about $110,000 for the three children for six years each.

2. However, more to the point, the father’s financial statement does not support his claim to have cars worth $50,000 and $30,000.  According to his financial statement, the father last year had cars worth about $19,000, $12,000, $10,000, $3,500, $3,000, $1,250 and $500.  That totals about $49,250.  The father said that he would do them up before selling them.  However, it is difficult to believe that, without a significant expenditure on them, he could increase their value to as much as he now claims they are worth. In the absence of any expert evidence about the value of the father’s cars, I consider that the claims made in his financial statement should be treated as their maximum value. 

3. The father did not point to any other source of funds to pay for School C’s school fees, such as his parents.

4. In his affidavit sworn or affirmed on 7 September 2017, the father said that he and his three brothers had a joint account with $209,000 in it that they held on trust for their parents. As the father said that he held the money in that account for his parents, it is not available for his own use.

5. The father confirmed in his affidavit sworn or affirmed on 7 September 2017 that the money in the account was not presently available to him, and he and his brothers could not access it until their parents died. In any event, the father did not rely on the affidavit sworn or affirmed on 7 September 2017 at the trial, even though he said he would rely on it in his case outline.

6. Consequently, it follows that, on the available evidence, the father would be unable to afford to pay the school fees at School C for all three children for the entirety of their high school years. There was no suggestion that only one or two of the children should attend School C, or that they should all attend School C for only a few years.

7. The mother also said that the father’s claim that he would pay all the School C school fees should not be believed because he had been ordered to wind up the R Cromwell Family Trust but had failed to do so.  The father said that he had wound up the trust by telephoning the Australian Taxation Office and getting a receipt.  Without wishing to give the father legal advice, that is not how a trust is wound up.  I accept the mother’s claim that the father has failed to comply with a court order for the winding up of the trust.  However, I do not consider that circumstance to be indicative of dishonesty.  It seems to be more a matter of ignorance of the law.

Father angry about [Y] wanting to attend School B

1. [Y] told her father shortly before her interview with Ms R that she wanted to attend School B.  [Y] told Ms R that the father looked angry and upset at that news.  [Y] did not suggest that he said or did anything as a result of being angry and upset.  In his oral evidence, the father denied that he was angry and upset.  He said he was puzzled.

2. I accept that the father was not angry and upset, but [Y] might well have thought that he looked that way.  [Y] obviously knew which school each of her parents wanted her to attend.  Ms R noted that [Y] is somewhat aligned with her mother.  [Y] may have interpreted the father’s reaction in the light of her mother’s perceptions of the father.  In the witness box, the father certainly did not present as a person who would react badly when he hears challenging news.  He was very calm and seemed like a gentle person.

3. The important point in all of this is that, whatever the father was feeling, [Y] felt able to express her view to her father and to Ms R.  The father did not intimidate or bully [Y], or try to persuade her to change her mind.

The father’s questioning of [Z]

1. [Z] complained to Ms R that the father asks him about increasing his time with him.  [Z] said that he worried that he might give his father the wrong answer and hurt his feelings.  [Z] said it would be better if the father did not ask if [Z] likes being with him.

2. The father said in oral evidence that [Z] told him that he wanted to spend seven nights a fortnight with him.  That may be so, but it does not appear to be [Z]’s genuine, current wish, based on what he told Ms R.

3. Nevertheless, the father said that, after reading the family report, he recognised that the questioning put [Z] under pressure and the father said that he had stopped doing it.  I accept that evidence.

[X]’s confirmation

1. The father conceded that he had a celebration for [X]’s confirmation without inviting the mother.  He said in oral evidence that he regretted that, and in future would invite her.  He also said that he facilitated [X] having her hair and makeup done in the morning by her maternal cousin, Ms J, and the only part of the day that the maternal family missed was the celebration afterwards.

2. Obviously, from a child’s point of view, it is important that both of their parents are able to attend and participate fully in important life events, such as confirmations and graduations, without there being tension or apprehension that one parent or the other might behave badly.  In general, the parents in this case have managed fairly well, although, as the example of [X]’s confirmation shows, there is room for improvement.  It is to be hoped that, with the passage of time, the parents will be more able to include each other in significant events in their children’s lives.

Communication

1. It was common ground that the parents in this case communicate poorly.  Ms R recommended that the parents undertake counselling to improve their communication and respect for each other as parents. The importance of civil and co-operative co-parenting cannot be overemphasised. 

2. To their credit, the parents consented to orders being made as follows:

   1.Each parent:

   a.attend the Parenting Orders Program at CatholicCare in Suburb 4 (“the Program”) for assessment and family counselling;

   b.follow the recommendations of the Program administrator; and

   c.complete all aspects of the Program required by the Program administrator.

   2.On the day that the applicant first attends the Program for assessment, the applicant provide to the Program administrator a copy of any family report and s.11F memorandum relating to the parents and their children, or any of them.

   3.If, following the completion of the Program, either parent considers that the communication or parenting relationship between them is inadequate, then the parents participate, at their equal shared expense, in parenting counselling with Relationships Australia, Centacare, or a similar organisation

The mother’s proposals

1. The mother proposed the following orders:

   1.That there be final orders in the same terms as the Interim Orders made on 13 December 2016 save that in addition thereto:

   (a)The parties and each of them do all things and sign all documents necessary to enroll in a Parenting Orders Program offered by Relationships Australia, Lifeworks or similar program and after completion of the program, either party considers that the communications or parenting relationship between the parties is inadequate then the parties participate at their equal shared expense in a program or counselling in relation to their communication and parenting relationship offered by Relationships Australia, Lifeworks or similar organisation.

   (b)That the child [X] shall commence secondary schooling at School B commencing in 2019.

   (c)That the children [Y] and [Z] shall be enrolled in and attend Suburb 1 Primary School in 2019.

   (d)That the parties shall participate in Family Dispute Resolution by not later than 30 November 2021 to consider whether it is then in the best interests of the children to live with the parties equally on a week about basis during school term and if the parties reach agreement that it is then such agreement shall be formalised in a Parenting Plan and the Parenting Plan shall override the terms of the orders made on 13 December 2016, to the extent of any inconsistency.

The father’s proposals

1. The father proposed the following orders:

   1.THAT the interim consent parenting Orders made 13 December 2016 be made as final Orders save and except Orders 2 and 3a).

   2.THAT Orders 2 and 3a) of the parenting Orders made 13 December 2016 be discharged.

   3.THAT the three children of the marriage [X] born 2006, [Y] born 2007 and [Z] born 2008 live with the Father as follows:

   i.during school term, commencing term 1, 2020 from the conclusion of school on Friday (or 3.30pm if a non-school day) to the commencement of school on the following Friday (or 3.30pm if a non-school day) on an alternating weekly basis

   ii.for half of all school term and summer holidays at times to be agreed and failing agreement on an alternating weekly basis as a continuation of the arrangement pursuant to Order 3i. above.

   4.THAT the children live with the Mother at all other times on an alternating weekly basis.

   5.THAT each of the children remain at School A Primary School in Suburb 3 until the youngest child completes grade 6.

   6.THAT each of the children attend School C in Suburb 4 for their secondary school education with the child [X] commencing there in 2019.

   NOTATION

   A.The Father undertakes to pay the child’s school fees whilst they attend School C.

2. The interim orders made by consent on 13 December 2016 provided as follows:

   1.That the husband and the wife have equal shared parental responsibility for the children [X] born on 2006, [Y] born on 2007 and [Z] born on 2008 (the children)

   2.That the children live with the wife.

   3.That the children spend time with the husband as follows:

   a)from after school on alternate Fridays until the start of school on the following Wednesday;

   b)for one half of all school term holiday and Christmas holiday periods as agreed or in default of agreement on a week about basis from Friday to Friday, to commence with the parent in whose care the children would otherwise be with on the last day of the school term;

   c)if Father’s Day does not fall on a weekend when the children would be with the husband pursuant to sub-paragraph (a) hereof, then from 12.00 noon until 8.30pm;

   d)from 3.30 pm until 8.30pm on the father’s birthday if it falls on a school day and if it is a day when the children would not be in the father’s care under par 3(a) hereof and from 12.00 noon until 8.30 pm if the birthday falls on a non-school day and if it is a day the child would not be in the father’s care under par 3(a) hereof;

   e)from 3.30pm until 6.00pm on the children’s birthdays if it falls on a school day and if it is a day when the children would not be in the father’s care under par 3(a) and from 12.00 noon until 6.00pm if it falls on a non-school day and if it is a day when the children would not be in the father’s care under par 3(a);

   f)on Christmas Day from 11.00am until 4.00pm in 2016 and every even numbered year thereafter and 4.00pm to 9.00pm in odd numbered years;

   g)on Christmas Eve from 11.00am until 4.00pm in 2016 and every even numbered year thereafter and 4.00pm to 9.00pm in odd numbered years;

   h)on New Year’s Eve from 5.00pm until New Year’s Day at 4.00pm in 2016 and every even numbered year thereafter;

   i)on Easter Sunday from 11.00am to 4.00pm in odd numbered years and from 4.00pm to 9.00pm in even numbered years; and

   j)such further time and communication as may be agreed between the parties.

   4.The husband’s time spent with the children shall be suspended as follows:

   a)from 3.30pm until 8.30pm on the wife’s birthday if it falls on a school day and if it is a day when the children would be in the father’s care under par 3(a) hereof and from 12.00 noon until 8.30pm if the birthday falls on a non-school day and if it is a day the children would be in the father’s care under par 3(a) hereof;

   b)from 3.30pm until 6.00pm on the children’s birthdays if it falls on a school day and if it is a day when the children would be in the father’s care under par 3(a) and from 12.00 noon until 6.00pm if it falls on a non-school day and if it is a day when the children would be in the father’s care under par 3(a);

   c)from 12.00 noon until 8.30pm on Mother’s Day if it is a day the children would be in the father’s care pursuant to par 3(a) hereof;

   d)on Christmas Day from 11.00am until 4.00pm in 2017 and every odd numbered year thereafter and from 4.00pm to 9.00pm in even numbered years;

   e)on Christmas Eve from 11.00am until 4.00pm in 2017 and every odd numbered year thereafter and from 4.00pm to 9.00pm in even numbered years;

   f)on New Year’s Eve from 5.00pm until New Year’s Day at 4.00pm in 2017 and every odd numbered year thereafter;

   g)on Easter Sunday from 11.00am to 4.00pm in even numbered years and from 4.00pm to 9.00pm in odd numbered years; and

   h)as otherwise agreed in writing.

   5.That all changeovers for the children shall take place at the children’s school/s or such other place as the parties shall agree from time to time in writing including, text message and failing agreement at the residence have been residing in.

   6.That each party is at liberty to Skype or telephone the children between 6.00pm and 8.00pm on the first and every alternate day of the period of days they are in the care of the other of them under these orders.

   7.That each of the parties is permitted to liaise directly with the children’s school/s and to receive notices, information, newsletters, school reports, order forms for school photographs, parent teacher appointments, and information about extra-curricular activities involving the children.

   8.That each party is at liberty to attend at the children’s school/s for the purposes of parent and teacher interviews, school concerts and such functions or events which parents are normally invited to attend.

   9.That each of the parties be restrained from enrolling or committing the children or any of them to any activity that is scheduled to or does occur on a day the children are living with or spending time with the other party pursuant to these orders without first obtaining the other party’s agreement in writing.

   10.That each of the parties keep the other party promptly informed of any medical or health issues affecting the children and or any other information relating to the care, welfare and development of the children or any of them via a Communications Book as soon as practicable, with such Communications Book to be placed in a travel bag and exchanged between the parties at or prior to changeovers.

   11.That each of the parties make available to the other any medications prescribed for the children or any of them to administer when the children are with the other party and the other party shall thereafter administer the medication as prescribed or required.

   12.That the each party shall authorise and direct the children’s medical practitioner/s to keep both of the parties informed in relation to the children’s health and any medical treatment that may be given or recommended.

   13.Each of the parties shall inform the other and keep him or her informed of the party’s residential address contact telephone number and of any change thereto within 24 hours of the change.

   14.That neither parent shall take or send the children to a place outside of the geographical boundaries of the State of Victoria or for any place for an intended duration of 7 days or longer (“the proposed holiday”) without first having notified the other parent not less than 30 days prior to the commencement of the proposed holiday and the other parent shall not unreasonably withhold his or her consent to the proposed travel.

Material relied upon

1. The mother relied upon:

   a)her amended initiating application filed on 23 August 2017;

   b)her affidavits affirmed on 23 August 2017 and 21 June 2018;

   c)the affidavit of Mr T affirmed on 25 August 2017, which annexed his family report dated 27 September 2016;

   d)the affidavit of Ms R affirmed on 9 July 2018, which annexed her family report dated 18 May 2018; and

   e)her outline of case filed on 5 July 2018.

2. The father relied upon:

   a)his amended response filed on 7 September 2017;

   b)his financial statement filed on 7 September 2017;

   c)his affidavit sworn on 3 July 2018;

   d)the affidavit of Ms R affirmed on 9 July 2018, which annexed her family report dated 18 May 2018; and

   e)his outline of case filed on 5 July 2018.

3. The mother, father and Ms R were cross examined. The parties did not require Mr T to be cross examined. 

The first family report

1. The first family report was prepared by Mr T. The report is dated 27 September 2016 and is annexed to an affidavit affirmed by Mr T on 25 August 2017.

2. At the time of the first family report, the children were living with their mother and spending time with their father from Friday after school until Tuesday before school each alternate week and each Wednesday for dinner. The mother was living in the former matrimonial home in Suburb 3 and the father was living with his parents, also in Suburb 3.

3. Mr T said the following in his report about [X], [Y] and [Z]:

   21. [X] was undefended and readily engaged and answered questions to the best of her ability. Her mood and affect were a little restricted in range with some pressure of speech and her account was at times tangential, particularly when discussing her current school difficulties.

   22. [X] attends School A Primary School and is in grade 4. She describes an ambivalent relationship with her teacher who she feels is strict and unsympathetic and she has recently been moved from her worktable due her behaviour. [X] gave a somewhat complex account of her friendships which are fluid and changing at present and informed the writer she had been called a bully recently and had broken up with two friends. [X] states she is unhappy with her current school and would like to change.

   23. She understood our meeting to be about the parental separation and the writer explained the role in age-appropriate terms. [X] describes her parents “fighting a lot” towards the end of the relationship and reports feeling scared and worried by their hostility towards each other. On these occasions all the children would go outside and try to avoid the conflict. [X] reports her life is better since the separation due to the reduction in parental conflict.

   24. She perceives [Y] as the most affected by the separation and stated, “[Y] is not handling it very well she gets very angry quickly and doesn't want to go to dad’s”. She reports feeling a little anxious and insecure since the separation and by way of example, described cutting her leg recently and needing stitched and explained, “I cut my leg and needed stitches. I got scared because I didn't know which one [parent] was going to help. I was at dad’s but I really needed mum there as well. When asked to describe the differences in her parent’s care she stated, “It’s hard to describe, it feels more like home with Mum, she knows me and what’s going on in my life. If I have a problem I go to mum”. [X] was able to give a good account of the current arrangements and the writer discussed her father’s shared care proposal. [X] is opposed to any changes in the current arrangements that would extend overnight time with her father.

   25. [X] explained she currently sees her father on Tuesdays and Thursdays for Hobby training and on Wednesdays for dinner and she is finding it unsettling to move between her parents on such a frequent basis during the week. She often feels there is no respite from the dynamics of the parental separation when she is constantly exposed to changeovers required by the current arrangements. Her most pressing concerns at present are the issues of where they will live when the house is sold and what school she will go to.

   26. [Y] was readily engaged and answered questions to the best of her ability. Her mood and affect were little restricted in range and there was some irritability when discussing the current arrangements. [Y] attends School A Primary School and is in grade 3, she reports a stable circle of friends and gets on well with her teachers and appears to be well integrated into her school community. [Y] had no understanding of the purpose of our meeting and the writer explained the role in age-appropriate terms.

   27. Her memories of past family life were mostly about the parental arguing in the latter part of the relationship and she stated, “When they argued it was in the lounge room and usually about the school fees. [X] would cry and get really scared and I was a little bit scared”. [Y] identified her mother as the person coping best with the separation and the person she most relies on to help with her feelings. [Y] describes her mother’s home as central to her life and stated, “It feels more like home with my mum. I know the routines and when I have problems I can go to her. She knows more about me and what I'm like”

   28. The writer described [the father’s] proposal for shared care and [Y] quickly rejected this arrangement on the basis she would miss her mother too much. [Y] explained it feels a bit cramped at the paternal grandparent’s home and they currently sleep in one room as the other room has been set aside for school bags and storage. She went on to express dissatisfaction with the current arrangements and explained her father’s regular attendance at the family home on Tuesdays and Thursdays for [X] and [Z]’s training, combined with the Wednesday catch-up time, felt as if she was seeing her father every day. She experiences the constant coming and going between her parents as stressful and stated, “there is no break it feels like too much stress going backwards and forwards between mum and dad it feels like we see dad more than we see mum because he’s at the house all the time”.

   29. [Y]’s preference is to keep the current weekend arrangements unchanged and to drop the Wednesday night catch-up time and she stated, “I would like to have more breaks in contact. It feels a bit confused and hard to relax knowing dad is coming round all the time”

   30. [Z] presented as readily engaged and undefended and answered questions to the best of his ability. His mood and affect were [a] little restricted in range and he fatigued towards the end of the interview. [Z] understood the meeting to be about ‘mum and dad’s divorce’ and the writer explained the role in age-appropriate terms.

   31. [Z] recalls a happy family life but there were lots of arguments towards the end and he would sometimes get scared and put his headphones on and go outside with his cousin. He feels his parents now get on better but understands they will never reconcile and notes their communication is limited to the arrangements. However, he is feeling less sad and getting more accustomed to the separation. [Z] feels his mother has handled the separation better than his father and identifies her as the calmest member of the family.

   32. The writer discussed [the father’s] proposal for shared care which [Z] rejected on the basis he would worry about missing his mother and stated, “I don’t want to do shared care, we see dad all the time anyway, but I would do an extra night with him.” In relation to the current arrangements he experiences the Wednesday as disruptive and feels that “no one gets a break”. He explained it makes [Y] angry and his father’s regular attendance at the home creates an anxious atmosphere when he comes to the door and calls out to the children. [Z] would like to keep the weekend arrangements unchanged, drop the Wednesday night catch-up time and possibly stay an extra night with his father on the weekends.

1. Mr T’s evaluation and recommendations were as follows:

   33. There are no long term systemic family violence issues or mental health difficulties impacting on the parental capacity of the parties. There have been allegations of verbal abuse and threatening behaviour by both parties particularly in the period they lived [separately] under the same roof and to a lesser extent in the immediate post separation period. These behaviours are best described as “separation instigated conflict” which is identified as an acute response to the trauma of the separation and usually forms part of the high expressed emotion phase of the adjustment process. This type of parental conflict is particularly prevalent in circumstances where parties have separated under the same roof.

   34. In this category the conflict is unlikely to continue after the physical separation has occurred. Instrumental in this settling is the establishment of a rhythm and routine in the arrangements that fits the needs of the children and the parties. In these circumstances once away from the relationship the conflict usually ameliorates over time and the writer holds no concerns about either party in this regard.

   35. [The father’s] proposal for a week about shared care arrangement is assessed in the context of the children’s primary attachment needs relative to the separation. In these circumstances the primary attachment of the children is pivotal to the discussion. The history of the matter clearly identities [the mother] as the primary attachment figure to the children and she has been responsible for the day-to-day nurture and welfare of all three children since their birth. The children’s narrative around the parental relationships is conceptual and expressed in qualitative terms of familiarity and routine. By way of example, they talk of a home like atmosphere with their mother that is embedded in familiar routines and responses. This familiarity and attribution provides the children with a sense of continuity and containment in a period of rapid change and conflicted feelings.

   36. The research and literature on attachment is well established and unequivocal in its findings. Premature disruption or severing of this relationship has the potential to precipitate a variety of emotional and psychological difficulties for children. Parental separation often represents an existential threat to these relationships for the child and outcomes such as heightened anxiety, depression and developmental delay are over represented in this group. Prolonged absences from the primary caregiver, significant changes in arrangements or routines and constant transitioning between parents all serve to activate the attachment system of the child. All three children are exhibiting varying degrees of attachment distress in the current circumstances and this is most clearly identified in [Y]. Significantly altering the balance of care is likely to provoke further anxiety and psychological discomfort for the children and a shared care arrangement is contraindicated and not recommended at this point in time. However, it should not be ruled out in the future particularly if [the father] is able to establish a unique home environment of his own.

   37. It is the writer’s view [that] [the mother’s] proposal, to maintain the current arrangements, tends to undervalue the strength of the children’s relationship with their father and does not reflect the extent of his contribution during the course of the relationship. The writer is of the view it is possible to extend [the father’s] overnight time while simplifying the arrangements and putting in structure that alleviates some of the children’s current anxiety. In this context, it is recommended [the father] spend time with the children each alternate weekend from Friday pm until Tuesday am and each alternate Thursday pm until Friday am and half of all school holidays. This particular structure seeks to reduce the amount of transitioning between homes and the recommendations also provide for more definitive boundaries around extracurricular activities and communication generally.

   38. In conclusion, the issue most pertinent to children’s adjustment in these circumstances is not the quantity of time spent with either parent but the quality of the communication and co-parenting of the parties. Children’s adjustment to parental separation is wholly dependent on the parental adjustment and the equation is simple; the more positive and successful the parental adjustment, in the absence of parental conflict, the better the psychological and emotional outcomes for the child. The goal is to provide a relatively seamless transition between households that enables the child to engage in their social, school and community relationships in a relatively uninterrupted way in the absence of conflict.

   RECOMMENDATIONS

   1.Both parties to have equal shared parental responsibility.

   2.The children to live [the mother].

   3.The children to spend time with [the father] each alternate weekend from the conclusion of school on Friday until the commencement of school on Tuesday, each alternate Thursday from the conclusion of school until Friday at the commencement of school and half of all school holidays with the long summer break taken on a week about basis.

   4. All milestones and days of celebration as per customary practice in these matters.

   5. The parties to cease and desist from enrolling the children in extracurricular activities without prior consultation and agreement.

   6. The parties to cease and desist from attending at the children’s extracurricular sporting activities when they occur on the other parties’ time and/or unless by prior agreement with the other party.

   7 All changeovers not occurring around school drop off and pick up times to be effected quickly and without disruption to the children’s domestic routines in each home.

   8. The parties to use a communication book for the purpose of keeping each other informed of the children’s health, welfare and educational progress.

   9. The parties undertake not to detour from established times and routines around the children’s extracurricular sporting activities and to ensure they are returned home in a timely fashion that enables them to complete their evening routines.

   10. Both parties to cease and desist from denigrating each other within earshot of the children.

   11. The parties to keep each other informed in a prompt and timely fashion of any medical emergencies pertaining to the children.

   12. Phone contact as agreed between the parties.

The second family report

1. A second family report was prepared by Ms R. The report is dated 18 May 2018 and is annexed to an affidavit affirmed by Ms R on 9 July 2018.

2. At the time the second family report was written, the children were living with their mother and spending five nights per fortnight with their father. The mother had moved to Suburb 1 and the father was living in Suburb 3 in the former matrimonial home.

3. Ms R said of the father:

   9.[The father] presents as a reserved but sensitive man, he was open and undefended in interview. He reports the current arrangement is working well and has established a consistent routine with the children but he says, he has always wanted equal shared care of the children because he believes it is best for them.  He has flexible work arrangements, is available for the children and can attend to their care.

   10.[The father] presents as a caring and dedicated Father evidenced by his commitment to and involvement in their sporting and extracurricular activities. He was [X]’s (hobby) team coach till she gave up playing last year. Although [the mother] enrolled the children in (hobby) this year in Suburb 8 without consulting him, he readily takes them to training and to their games. He says he wants ‘what is best for them’ and to that end, he is prepared to be solely responsible for their school fees to ensure they attend the best school.

   11.Despite the tensions in the parental relationship, [the father] says both he and the Mother are supportive of the children’s relationship with the other parent; he never denigrates or criticises the Mother to the children and refers to her frequently in conversation. They are civil in front of the children and generally they can negotiate easily around children’s issues; ‘that’s one good thing we still have’.

   12. However, recently, [the father] prioritised his personal feelings in his decision to celebrate [X]'s Confirmation (a Religious sacrament) excluding the maternal family which caused [X] distress and sadness. He says he was angry and upset with [the mother] for taking chattels without his knowledge and consent and consequently, refused to have a joint celebration of the special event which they had done to date.

   13. However, when challenged, [the father] acknowledged his decision was not child focussed, and says, ‘I try to learn’. He accepts he needs to separate his feelings from what is best for the children and seems authentic when reflecting on his behaviour to enhance his parenting. He says he wants to be a good parent and is hopeful he can establish a more positive relationship with [the mother] and increase their capacity for co-operation and flexibility; and to that end he was open to advice and guidance which he readily instigated citing, at the second interview, his attempt to greet the Mother in a civil manner.

   14.In relation to parenting arrangements, he believes he is able to provide for the children who are happy when spending time with him. He says [X] has an open and easy relationship with him. Although he felt hurt by [Y]’s and [Z]’s disclosure to him they did not wish to change the current arrangement, he acknowledges [Y] has always been close to her Mother. He describes [X] as a sensitive child who can be easily led understands her struggles and indeed reluctance to decide the adults’ issues. He accepts her need and wish to remain neutral and rely on her parents to decide. He is concerned nonetheless, the children are living in crowded conditions with their Aunt and fears the temporary arrangement may be indefinite.

   15.In relation to the choice of school, [the father] says his desire is to give the children the best education he can. He does not believe a school should be chosen on the basis of geographical proximity which he suggests is the Mother’s view. He has researched and believes School C’s reputation and rating is the best in the area and will provide for the children’s needs. It too, has a sports programme, pastoral care and support for children with learning difficulties all of which address his children’s differing needs.

   16. [The father] says School C is well placed geographically for the children to attend and to maintain their social and community networks. School D is a feeder school to School C which is attractive to [X] who wishes to attend the same school as her friends. He is surprised [Y] has changed her mind and has informed him she wishes to attend School B in Suburb 1. He is prepared to pay for the fees if [the mother] is unable to contribute.

4. Ms R said the following about the mother:

   17.[The mother] presents as a pragmatic and frank woman who was direct in interview. She gives the impression she is resolved about the separation but she says, [the father] continues to express anger towards her which she finds puzzling given it was his alleged infidelity which ended their marriage. She expresses concern he displays his anger and upset with the children when they express a view which counters his; for example, the children reported to her he was angry when they reportedly disclosed they wished to live primarily with her and did not wish to have a week about arrangement.

   18.[The mother] insists she does not disclose adult information to the children contrary to the Father’s practice of involving them in adult disputes. She consistently tells them ‘not to worry’ and avoids exacerbating their distress or involving them further. She says she is mindful of shielding them from parental conflict which occurred in the past but which, as she no longer communicates directly with their Father, is now significantly reduced. They manage the children’s issues via text/emails although not always with ease.

   19.[The mother] acknowledges she has failed to consult with [the father] of late such as enrolling the children in (hobby). In keeping with Court orders (but not in the spirit of those orders), she enrolled the girls in (hobby) on the basis they would attend fortnightly when they are in her time. While she did not require the Father to take them to training or to their games, [the father] nevertheless consented to their request to take them enabling them to attend weekly.

   20.[The mother] proposes a change of school for the children because of the cost of and time for travel from their new location in Suburb 1; and as she no longer has the funds to afford the private school fees. She remains a full-time parent and in any event, has limited earning potential given she has been a full time parent since [the] children were born.

   21.[The mother] explains she has insufficient funds received from the financial settlement to afford a home in the suburbs around Suburb 3 necessitating a move to Suburb 1. It is understood she is in the process of purchasing a land and house package in Suburb 1. She and the children are currently living with her sister in Suburb 1 but she expects to be in her own home within a year.

   22.[The mother] contends the travel to school and back each day is onerous for the children who travel about half an hour each way, and financially taxing on her. She is unable to sustain the costs associated with travel. She does not have the financial resources to contribute to her share of the school fees. She doubts [the father] has the capacity to pay for the three children’s [fees] as he has indicated he may be prepared to do.

   23.[The mother] had hoped for a change of schools in 2018 to enable a transition for [X] to secondary school in 2019. She proposes [X], and [Y] and [Z] to follow, attends School B in the Suburb 1 area. The three children need to attend schools in the same geographical area for her to be able to pick them up from school, otherwise, there will be a minimum of 30 minutes delay between pick-ups. There is no direct public transport between Suburb 3 and Suburb 1.

   24.[The mother] contends School B meets the needs of all three children; [X] is interested in sport and the school offers a sports programme; [Y] is academic and the school is well resourced for disability and learning needs of children from which [Z] will benefit. She believes [X] prefers to attend School B but she is ‘trying to please both of us’. The school is located in their geographical area providing easy access to the children.

   25. [The mother] rejects the shared care proposal and believes the children would reject it also as she has been their primary parent since birth and is readily available for the children. She says the children find the current five overnights with their Father onerous and have asked her for less time with him. She would prefer a reduction in time with their Father but accepts the arrangement as it is.

5. Ms R included the following in her report about [X], [Y] and [Z]:

   26.The children attended for interview with their Mother and were supervised by their Father while their Mother was in interview. The parents were civil and respectful in front of the children and facilitated the children moving from one parent to the other although they did not interact with one another. The children appeared comfortable with each parent and transitioned easily between them.

   27.The children were initially interviewed together and then individually. They attend School A Primary School in Suburb 3. [X] is in Grade 6 and will be commencing secondary school next year; [Y] attends Grade 5 and [Z] attends Grade 4. They children readily engaged with the writer, they were open and disclosing. While their wishes and views did not appear to be unduly influenced by either parent, [Y] presents as aligned with her Mother and her views appear aligned to [the mother’s].

   28. The children understood the purpose of the interviews was ‘to work out how many days with each parent’. The writer explained it was the parents’ decision and they were not expected to determine parenting plans. [X] indicated she does not want to decide while [Y] and [Z] indicated they wanted the current arrangement to continue.

   29. The children do not appear to be perturbed by the crowded accommodation with their Mother where sleeping arrangements are divided into boys’ room and girls’ room. They understand it is only temporary. The physical environment with either parent does not appear to be a consideration for them in any parenting arrangement.

   30. The children are aware of the issue of the change of schools and their Mother’s views and preferences, the possibility of a change to parenting arrangements, and the details around a recent dispute about joint family celebrations. In relation to the school and parenting issues, [Y] seems to be aligned with her Mother, [X] tends to stay neutral but is burdened by the pressure to make a choice; and [Z] tends to sit in his sisters’ shadow. His views do not appear to be unduly influenced by either parent.

   31. The three children expressed their wish to remain at the current primary school to complete their Year 6 but are open to attending School B. The children do not have concerns if they attend different schools except [Z] prefers to attend the same school as [Y].

   32. The children seem pleased their parents are ‘starting to get on well’ although a recent disagreement about a joint celebration for [X]'s Confirmation, has created some upset and sadness for them. They are aware their Mother needed to return items ‘that she should not have’ but they feel their Father’s demands are ‘unfair’ as they he had also taken their Mother’s paintings, ‘he hid them .... but we found them’.

6. In relation to [X], Ms R said:

   33. [X] presents as a withdrawn young girl, cheerless and at times, disengaged. She presents as emotionally constricted. Her presentation may reflect the emotional burden for decision making and the dilemma trying to appease one or both parents. She is sad about but seems resigned to the separate family celebrations for her upcoming Confirmation.

   34. [X] feels caught in the middle of her parents’ disputes. She is unable to decide which secondary school she prefers to attend as each parent promotes their choice. Children rely on parents to support a decision about secondary school but [X] is left to determine the merits of each option on her own; an onerous decision inappropriately placed on her shoulders.

   35. As is often the case with children, they prefer to attend the school which [friends] will attend, as is the case for [X] who is drawn to School C. There are few, if any other factors which impinge on her decision. Geographical location did not seem important to her. [X] wants her parents to decide and she will accept their decision.

   36. Similarly, [X] has no firm view about a parenting arrangement and felt it should be ‘equal’ or ‘almost equal’. She says does not like the long travel to school because, ‘I get bored’.

   37. [X]'s wish ‘for life to not be complicated’ seems to reflect her feelings about her situation. Her parents have created complexities in her life for which she is too young and immature to navigate, understand or manage.

7. In relation to [Y], Ms R said:

   38. [Y] presents as a confident, bright and mature young girl. She has firm and clear views about which she does not object her parents knowing. [Y] says she wants the current parenting arrangement to continue; ‘it’s OK for me this way’. She says the routine ‘is easier’ and ‘I like it how it is’ although she is unable to specify the reasons. She says her Mother ‘is always there for us’, while their Father ‘is at work’ which reflects the parenting arrangements she is familiar with. She went on to say ‘it’s going to be hard to convince me’ to change her view. She opposes week about though she knows is her Father’s preference.

   39. [Y] says she prefers to remain at her current school to complete Grade 6 because of her friendships and celebrating the last year together. Her preference is to attend School B because she doesn’t like attending Religious schools, ‘I don’t like learning things that are religious’ and she doesn’t like going to church; the services are too long’. At the same time, she is looking forward to her confirmation next year. She adds she does not wish to attend at the same school as her cousins. It is surprising she prefers to attend a school where no friends or familiar children will attend.

   40. [Y] says she told her Father she prefers to attend School B. She believes he was upset with her response noting he did not respond ‘but it’s how he looked .... angry and upset’. She says she is unlikely to express her preference to him again but is unconcerned about the writer advising him. [Y] trusts her Mother and is reassured by her Mother’s choice of school.

   41. [Y] seems to rely on her Mother who she says looks after her ‘very well’; she is always available, cares for her and her mother responds ‘straightaway’ if she has a need or problem, alluding to a recent bullying problem at school. She says her Father would not have responded as quickly; she says, ‘Dad is always on the phone’ when they are spending time with him.

   42. [Y] senses her parents are ‘now starting to drift away’, possibly highlighted by the separate celebrations for [X] which is the first time a special event has not been jointly celebrated. She describes her parents as being at the ‘opposite ends of the one road’ as if referring to their widening disputes. She says she tries ‘to stay out’ of their disputes but she nonetheless, feels the tensions as they impact on her making her anxious.

1. Ms R said the following about [Z]:

   43. [Z] presents as a reserved and mild-mannered boy, softly spoken but readily disclosing in interview. He seems reliant on his sisters, particularly [Y], for emotional support although [the father] suggests he is closer to [X]. 

   44. It is [Z]’s wish to continue to live predominantly with his Mother. In response to a series of questions examining his perception and experience his primary caregivers, [Z] seems to rely on his Mother as he turns to her first for all of his needs. This is consistent with the Mother’s primary and full time parenting role.

   45.[Z] enjoys spending time with his Father but seems anxious about his Father ‘keeps asking questions’ about increasing his time with him. He says ‘I worry’ he may give his Father ‘the wrong answer’ and hurt his feelings. He says ‘it would be better if he stopped asking, if I like being with him’. He feels uncomfortable with the questions because of the pressure to respond in a manner which will not hurt his feelings. 

   46. [Z] prefers to stay at School A till he completes Grade 6. His friendships are important and he wants to complete his primary education with them. He does not have a need to change schools and is secure in his familiar environment. He has not established new friendships in Suburb 1 and his social networks are at school and Suburb 3. He said he looked at School E but didn’t like the sporting facilities. He expects to follow his sister [Y] to whatever secondary school she attends.

2. Ms R did not observe anything remarkable in the interactions between the children and their parents. She noted that the interaction with each parent was warm and familiar.

3. Ms R said the following in her evaluation and recommendations:

   53. While there are tensions in the parental relationship, to their credit [the father] and [the mother] appear to support and promote the children's relationship with the other parent enabling the children to transition easily between the two households and evidenced in the relative ease and ability of each child to engage with each parent on the day of interview. The children have a good relationship with each parent who is actively involved in their care and involved in the children’s lives. Parental conflict seems to have diminished which has been noted by the children who express a sense of relief there is now little fighting.

   54.      However, despite the parents’ attempts to shield the children from conflict, they have nonetheless been involved in and drawn into the recent disputes such as the schools and parenting issues; the parents appear to have shared adult information which places their children in the middle of their disputes. They have information which is unnecessary for them to know such as the issues over chattels.

   55. The dispute over [X]’s secondary school for 2019 has shifted from a parental decision to the child’s decision where [the mother] now relies on [X] to determine which school she [prefers] to attend. While it is appropriate for [X] to be given a say in her choice of secondary school, being left with two competing choices has caused her unnecessary distress and anxiety. Ultimately, however, [X] has removed herself from the middle and requires her parents to decide.

   56. The risk to children whose parents maintain discordant and non-communicative relations, relates to the children’s capacity to read the negative feelings of the parents and they become prone to loyalty binds which can lead to enmeshment and alignments, and sometimes the rejection of a parent. Nascent signs of this are evident with [Y] who presents as aligned with her Mother. Her reasons for discounting her attendance at School C appear contradictory to her experiences of her Religious school education and seem contrived to align with her Mother’s wish to enrol at School B. The parents need to be mindful that children can suffer loyalty conflicts, their views can be influenced by loyalty to one or other parent, and sometimes they align and mirror the needs of one parent such as [Y]. A child is not necessarily better equipped with increasing age to rid themselves of loyalty conflicts or be able to make decisions in circumstances where parents present opposing views.

   57.There is little dispute about the quality of the parent/child relationships which were observed to be close, warm and trusting relationship with both parents. There is little dispute as to the capacity of either parent to care well and appropriately for the children. [The mother’s] resistance to equal shared care stems from her historical and current role as primary and full-time parent and her belief the children are best served by her continuing primary role and availability.

   58. While her historical role in that regard does not necessarily preclude [the father] from assuming an equal care parenting role, it is the children’s experience, reliance on and familiarity of their Mother’s parenting which influences their preference to maintaining the current parenting arrangement. [Z] in particular perceives his Mother as the primary source of nurturing and security. The children’s needs are largely met by their Mother although their Father is playing an increasing role about which no concerns were disclosed.

   59.While [X] will readily accept the parental decision (or Court determination) in relation to parenting arrangements, [Y] and [Z] are less likely to embrace a week about plan. The measure of [Z]’s and [Y]’s stated wish to live primarily with their Mother is partly evident by the disclosure of their wish to their Father and their steadfast adherence to their wish despite his obvious displeasure. Their wish can also be understood in terms of [Y]’s close relationship with her Mother and [Z]’s emotional needs and nurturing being primarily met by her. [The father] should not perceive this as a rejection of him, but a product of the historical availability, presence of and attachment to their Mother.

   60. As the children get older, their needs will change. It may be more appropriate to consider an equal shared care plan in a few years’ time when [Z] in particular will be on the cusp of adolescence and with greater identification with his Father is likely to seek increased attention and time with him.

   61. Notwithstanding the children’s views, the principal factor which renders equal shared care impractical is the geographical distance between the two households which are located in two different and separate communities. It will not allow the children to maintain friendships, school and community connections across the distance. The absence of public transport between the two households adds to the challenge of maintaining relationships and independently attending events between the two zones. Children’s residence and school needs to be in one geographical area to allow them to maintain friendships, social, school and community networks.

   62. The parents’ capacity to sustain a shared care plan is diminished by their lack of communication, lack of consultation and limited co-operation and alignment as parents which the complexity of shared care demands. The necessity for frequent and ongoing communication and consultation in the absence of effective communication and problem-solving capacity, does not auger well for the future.

   63. While they are loving and caring parents, [the father] and [the mother] have at times overlooked the children’s needs such as in recent decisions about enrolment in Hobby each alternate week and separate family celebrations for [X]. These decisions have been motivated by their personal feelings about the other parent rather than what is in the children’s best interests. In the course of interviews, [the father] has displayed a readiness to accept professional advice. [The mother] was somewhat defended in her justification not to consult with the Father about the Hobby enrolment but open to advice about her responsibilities as a parent.

   64. The parents are advised to engage in conjoint counselling to address and establish more effective communication and more co-operative parenting practices. This is a necessary step for successful equal care of the children. They need to effectively address parenting issues as they emerge, such as joint or separate family celebrations which impact on the children who need to have a clear understanding of the family structure particularly when expectations change or there is a shift from what they are familiar with. The change to separate family celebrations, which emerged as a sensitive issue for the family, may be experienced as further loss and disintegration of the family unit by the children and a stark confirmation the family is further divided.

4. Ms R said the following about schooling for [X], [Y] and [Z]:

   65. School selection is usually the prerogative of parents based on among other things, their priorities, their values, principles, needs, financial capacity to name a few.  [The father] and [the mother] have judiciously investigated the educational opportunities for [X], and indeed the three children, but have come to a different conclusion. There is little to suggest that either School B or School C is not an appropriate choice of school for the children.  

   66. [The father’s] offer of payment for the full school fees at School C will eliminate the Mother’s concerns about finances. She is open to [X] attending School C if she chooses although she says, she is unable to commit to or sustain the daily travel to Suburb 3 beyond the end of 2018.  

   67. There are likely to be social benefits to attending School C as the children will have the opportunity to maintain their connections with their friends and social networks. However, this will be partly countered while the children remain in the primary care of their Mother.

   68.Children benefit by attending school in the same geographical area in which they reside. They are able to maintain school and social networks, community networks and friendships and connections. When they attend school outside of their local community, these networks become harder to maintain, become problematic and fragile. School C is well situated to sustain and promote those social networks as the children have attended school and lived in the area; but only for as long as the children have a home base in the Suburb 3 area. However, if the children reside primarily with their Mother, they will form new friendships, social and community networks in the Suburb 1 area and School B.

   69. [Y]’s reasons for her choice of secondary school is not necessarily a measure of her needs. Her stated desire to attend School B seems to reflect her alignment with her Mother and she trusts her Mother’s choice; and to that extent, reduced weight needs to be given to her wishes. She is likely to accept attendance at another secondary college if supported by her Mother. [Z] is likely to happily follow in his sisters’ footsteps.

   70. The parents will need to consider not only which school better meets the needs of their children, but how attendance at one or the other may change the future educational, career and social trajectory for their children.

   71. The challenge for this family rests in the distance between the two households which creates added obstacles in attending to the children’s needs. While half an hour travel is not onerous (in normal driving conditions), it becomes onerous when travelled over a long period of time. It is sufficient to separate the children from one or other community. They remain dependent on their parents for social, school and community links; [the mother] will be limited by financial resources to assume responsibility for their travel while [the father] may be limited by his commitment to work schedules. Public transport is lacking and not a realistic option in their circumstances.

   72.The other challenge is responding to the children’s wishes and needs about remaining at School A till the end of Grade 6. Grade 6 is an important year for children as they celebrate the end of primary school life with friends they have shared their early years and primary education, while they anticipate together their approaching secondary school life.

   73.For these reasons, [X] needs to be able to complete her primary school education at School A. It will be distressing for [Y] to be removed from school at the end of Year 5 and not have the same opportunity to celebrate the end of her primary education with her friends which is her wish. She will be entering a school where friendships are well established and with a shared history from which she is excluded. Efforts should be made for her to complete Grade 6 at School A if possible.

   74. The same issues will arise for [Z] if he continues to [Grade] 5. The option for him is either to change school at end of 2018, so he has the opportunity to adjust to the new environment, make friends and have a level of connectedness in his final Grade 6 final year; or he continues till Grade 6 at School A as is his wish.

   75. If the children are to attend School E, the shift should occur in 2019. The preference is for the children to complete their primary education at School A as they are happy and settled at school. An early exit from School A is likely to create a level of distress and unhappiness for the children. However, the responsibility for travel will rest largely with [the mother] who says she does not have the financial resources to maintain the travel beyond 2018.

   76. In summary, the current parenting arrangement should continue for the short term but equal shared care considered in the future especially for [Z] whose needs as a male child may be better met with increased time with his Father. [The mother] needs to be mindful that [Y]’s strong connection and alignment with her may influence her views and wishes and she may be forfeiting her needs for her Mother.

   77.A change of primary school especially for [X] and [Y] comes late in their primary school education and given their wishes and considerations noted above, every effort should be made to allow them to complete their Grade 6 Year at School A. The timing is less critical for [Z] who has some opportunity to adjust and establish friendships and a sense of community at School E so that a change of school for him in 2019 can be considered although he can continue at School A with his sisters. While this is the best outcome for the children, it is dependent on the parental capacity to support it.

   78. The factors to be considered in the decision about secondary education, rests in, among other things, prioritising the children’s current friendships and networks or creating new ones in the community in which the children primarily live.

Best interests of the child

1. Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows:

   (1)The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)The principles underlying these objects are that (except when it is or would be contrary to a child‘s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)to have the support, opportunity and encouragement necessary:

   (i)          to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)     to develop a positive appreciation of that culture.

   (4)An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

2. Section 60CA of the Act provides that:

   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.

3. Section 60CC(1) of the Act relevantly provides that:

   Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

   The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.

4. Subsection 60CC(2A) provides that:

   In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   I will address the relevant considerations in order.

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

1. There is no doubt that the children would benefit from a meaningful relationship with both of their parents.

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. It was not suggested that either parent subjects or exposes the children to physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The children’s views are as summarised above.

Section 60CC(3)(b) the nature of the relationship of the child with:

(i)         each of the child’s parents; and

(ii)    other persons (including any grandparent or other relative of the child)

1. Each of the children has a good relationship with each of their parents.  [Y] is somewhat aligned with her mother.

Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i)         to participate in making decisions about major long-term issues in relation to the child; and

(ii)    to spend time with the child; and

(iii)  to communicate with the child

1. Both parents have taken every opportunity to participate in making major long-term decisions about the children, to spend time with them and to communicate with them.

Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. Both parents have fulfilled their obligations to maintain the children.  The father pays child support as assessed.

Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)         either of his or her parents; or

(ii)        any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. It is not proposed to separate any of the children from anyone.  The extent of the dispute is whether the current 9:5 arrangement should continue beyond term 1 in 2020 or whether, at that point, the children should live an equal shared arrangement.

2. Ms R said that the only reason in this case that she did not recommend equal time at present was the problems of travel between the parent’s homes and the accessibility of the children’s schools.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. It was not suggested that the distance between the parents’ homes would substantially affect the children’s rights to maintain personal relations and direct contact with both parents on a regular basis.

Section 60CC(3)(f) the capacity of:

(i)         each of the child’s parents; and

(ii)    any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

1. Both parents are well able to provide for the needs of the children.  However, Ms R considered that [Z]’s needs would change as he enters adolescence and, in a year or two, he would particularly benefit from equal time with his father.

Section 60CC(3)(g)           the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. It was not suggested that this factor is relevant.

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i)     the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)    the likely impact any proposed parenting order under this Part will have on that right;

1. This factor does not apply in this case.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. Both parents show a very good attitude to the responsibilities of parenthood, save that their communication and ability to co-parent needs improvement

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family

1. In her affidavit affirmed on 21 June 2018, the mother said that the father talked down to her, intimidated her, called her selfish and denigrated her. The father denied in his affidavit that he had been aggressive and intimidating towards the mother. However, he did not deny that he called her selfish, talked down to her or denigrated her. I accept the mother’s claims in this regard.

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:

(i)         the nature of the order;

(ii)    the circumstances in which the order was made;

(iii)      any evidence admitted in proceedings for the order;

(iv)   any findings made by the court in, or in proceedings for, the order;

(v)     any other relevant matter

1. It was not suggested that there are any family violence orders that affect or have affected any member of this family.

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. It would be preferable to make the order that would be the least likely to lead to the institution of further proceedings.  However, it is not apparent what that order is.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant

1. Apart from the matters discussed elsewhere in these reasons, there are no other relevant facts or circumstances.

Equal shared parental responsibility

1. Section 61DA of the Act provides as follows:

   (1)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 shared parental responsibility for the child.

   Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

   (2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)abuse of the child or another child who, at the time, was a member of the parent‘s family (or that other person’s family); or

   (b)family violence.

   (3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

2. The parents agreed that they should have equal shared parental responsibility for the children. That is in accordance with the presumption in the Act and Ms R’s recommendation. It is clearly in the children’s best interests. There will be an order to that effect.

Equal or substantial and significant time with each parent

1. Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of s.65DAA of the Act require the court to consider the child spending equal time, or a substantial and significant time, with each parent. Subsections (1) to (5) inclusive of s.65DAA provide as follows:

   Equal time

   (1)… if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

   Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

   Substantial and significant time

   (2)… if:

   (a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; 

   the court must:

   (c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

   Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

   (3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

   (a)     the time the child spends with the parent includes both:

   (i)     days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends or holidays; and

   (b)the time the child spends with the parent allows the parent to be involved in:

   (i)          the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)how far apart the parents live from each other; and

   (b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)the impact that an arrangement of that kind would have on the child; and

   (e)such other matters as the court considers relevant.

   Note:Paragraph (c) reference to future capacity – the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.

2. It does not seem to me that equal time would be in the best interests of the children at this point.  Indeed, the father did not ask that equal time commence until 2020.  Ms R indicated that [Z] might prefer equal time when he becomes an adolescent.  However, that was somewhat speculative at this stage.  Ms R certainly did not recommend equal time for all three children now.

3. Moreover, the schooling issue must also be considered in relation to the amount of time that the children should spend with each parent, because the children’s travel time to and from school is significantly different depending on which school they attend.

4. The only options presented to the court were School C and School B.  That is a shame, because there are other schools accessible from the train line that goes through Suburb 3 that might have been suitable for the children, such as Suburb 9 and Suburb 10.

5. On the evidence, School C is not a realistic option, because the father cannot afford the fees at that school.  It would be very unfortunate for the children to start at School C but then have to leave after a few years because of the non-payment of fees. It was not suggested that one or two children should go to School C while the third should go to a state school.  Consequently, the only viable secondary school option before the court is School B.  There will be orders that the children attend that school for their secondary education.

6. It is very much in the children’s best interests that, starting at some point during their secondary school years, they travel to and from school without parental involvement. School B is accessible by bus from the mother’s house.  It was common ground that, from the father’s house, the children could not realistically take public transport to travel to and from School B.

7. It is difficult for the father to drive the children all the way to School B from his home in Suburb 3, because the trip from his home to School B and then to his work in Suburb 2 would take 70 minutes.  The trip would not be so bad for the children, because the leg between Suburb 3 and School B would only be 25 minutes by car. 

8. However, while staying at the father’s house, the children would not have the benefit of being able to get themselves to and from school.  This is a factor that weighs against the children spending equal time with each of their parents.

9. I have considered whether the mother should be required to transport the children between the father’s house and School B on those days when the children are staying with their father.  However, this option was not proposed by either party and it is probably not a good solution in any event, so I take that matter no further.

10. I note that there is a train line through Suburb 5, and buses that go from Suburb 5 to School B.  It may be an option, when the children are old enough, for the father to take the children to railway station, which is on the Suburb 5 line, and more or less on the father’s way to work.  That would reduce the amount of time the father needed to spend travelling to work.  On the children’s way home, the father could meet them at train station, or they could take the train all the way to where he works in Suburb 2 and he could drive them home from there.  This option is very far from ideal, however. 

11. Unfortunately, because of the difficulties with the children travelling between Suburb 3 and School B, I consider that the children should not spend equal time with their father.  Their lives will be significantly more manageable if they are able to have one predominant home base. It should be with their mother, because it will be much easier for them to get to and from school from her home. All of the other evidence and factors do not outweigh that one consideration, which seems to me to be overwhelming.

12. Of course, if the father moved to somewhere on the Suburb 5 railway line, or if the mother moved to somewhere on the Suburb 7 railway line, the situation would be very different.  However, as matters stand, I do not consider that it is in the children’s best interests to have equal time with each parent, even starting in 2020.

13. Ms R’s suggestion that [Z] might in the future want to spend more time with his father was somewhat speculative.  I do not consider that orders should be made now based on preferences that might not eventuate.  Even if [Z] did wish to spend more time with his father, the reality of travelling between Suburb 3 and School B might continue to be an obstacle.

14. Consequently, there will not be an order for equal time.  The orders will be for a continuation of the existing 9:5 arrangement, which amounts to substantial and significant time.  There was no suggestion that the children should spend less than that amount of time with their father.

Primary schooling

1. Ms R was clear that, if at all possible, the children should finish their primary schooling at School A.  Ms R clarified in her oral evidence that, when she said possible, she meant financially possible.  The analysis set out above shows that the mother can afford to drive the children to and from School A.  There will be an order that the children finish their primary schooling at School A.

Other orders

1. Otherwise, there will be orders by consent as proposed by the parents.

I certify that the preceding one hundred and forty-eight (148) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 26 July 2018