Page and Page
[2013] FCCA 1692
•24 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PAGE & PAGE | [2013] FCCA 1692 |
| Catchwords: FAMILY LAW – Children – Parenting Orders – best interests of the child – equal shared parental responsibility – whether child should spend equal time with each parent – schooling – choice of high school for child – whether choice made by residence parent is to be preferred – whether child’s wishes should be taken into account – regard to be had to the burden of travel to school by parents. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 106A |
| Cases cited: Hall & Hall (1979) 5 Fam LR 609; FLC 90-713 Re G:Children’s Schooling [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025 |
| Applicant: | MR PAGE |
| Respondent: | MS PAGE |
| File Number: | SYC 7223 of 2007 |
| Judgment of: | Judge Scarlett |
| Hearing dates: | 17-18 October 2013 |
| Date of Last Submission: | 18 October 2013 |
| Delivered at: | Sydney |
| Delivered on: | 24 October 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dura |
| Solicitors for the Applicant: | Eddy Neumann Lawyers |
| Counsel for the Respondent: | Mr Guterres |
| Solicitors for the Respondent: | Craddock Murray Neumann Lawyers |
ORDERS
BY CONSENT
Spend time with
That notwithstanding any other Order the child of the marriage X born (omitted) 2003 (“the child”) shall spend time with the Father as follows:
(a)During school holidays as agreed, and in the absence of agreement in writing no later than 28 days before the commencement of each school holiday period, as follows:
(i)For the first half of each school holiday period in years ending in an even number;
(ii)For the second half of each school holiday period in years ending in an odd number.
(b)On Father’s Day if the child is not spending time with the Father that day, as follows:
(i)From 6:00pm on the Saturday before Father’s Day until the commencement of school on the Monday;
(ii)In order to facilitate this Order the Mother’s period of residence with the child shall be suspended on the days referred to in this Order.
(c)On the child’s birthday as follows:
(i)In 2013 and in each year ending in an odd number, from 6:00pm on 28 December to 6:00pm 30 December;
(ii)At all other times by agreement of the parties in writing;
(iii)In order to facilitate this Order the Mother’s period of residence with the child shall be suspended on the days referred to in this Order.
(d)At Christmas as follows:
(i)In 2014 and in each year ending in an even number, from 6:00pm Christmas Eve to 6:00pm 27 December;
(ii)At all other times by agreement of the parties in writing;
(iii)In order to facilitate this Order, the Mother’s periods of residence with the child shall be suspended on the days referred to in this Order.
(e)From 5:00pm 27 September until 9:00am 29 September in 2015 and 2017.
Suspension of Orders
The child’s periods of time spent with the Father shall be suspended as follows:
(a)On Mother’s Day if the child is not living with the Mother that day, from 6:00pm on the Saturday before Mother’s Day until the commencement of school on the Monday.
(b)At Christmas, as follows:
(i)In 2013 and in each year ending in an odd number, from 6:00pm Christmas Eve to 6:00pm 27 December;
(ii)At all other times by agreement of the parties in writing;
(c)On the Mother’s birthday if the child is not living with the Mother that day from 5:00pm on 27 September in each year until 9:00am on 29 September in each year.
(d)On the child’s birthday as follows:
(i)In 2014 and in each year ending in an even number, 6:00pm on 28 December to 6:00pm 30 December;
(ii)At all other times by arrangement of the parties in writing.
Parental Responsibility
That the parties shall have equal shared parental responsibility for the child.
That notwithstanding Order (3), the child shall continue to be enrolled to attend (omitted) Primary School at (omitted) and neither party shall enrol the child at any other primary school pending her completion of Year 6 at that school.
Ancillary
That other than when the child is at school, each parent shall collect the child at the commencement of their respective periods of residence from either the care of the other parent or as otherwise provided herein.
The parties shall be at liberty to attend all school functions and sports activities and extra-curricular sports and musical activities in which the child is involved and to which parents are usually invited.
That whilst the child is spending time with the Father, he shall not at any time cause the child’s hair to be cut other than with the consent of the Mother.
That the Mother shall be at liberty to have the child’s ears pierced, should the child wish to wear pierced-ear earrings.
Neither party shall enrol the child in extra-curricular sports, arrange or agree to any other event for the child including periods of travel which may occur during the child’s periods of time with the other party, other than with the written consent of the other party.
No discussion about the alteration of periods of time the child shall spend with each parent shall take place between the parties during telephone communication calls with the child or at the point of collection of the child.
That the child shall have telephone and/or other electronic contact/communication with the parent with whom she is not living or spending time with at all reasonable times and at the child’s request and in the absence of agreement as to telephone communication, every day prior to 8:30pm.
That the parties shall each maintain and keep maintained at all times an email address and/or other electronic communication address for the purpose of these Orders.
Each party shall notify the other as soon as possible and in any event within 12 hours of any medical emergency, urgent medical treatment, serious injury or illness suffered by the child whilst in the care of that party.
Each party shall, whilst so ever the child is in their care notify the other parent and keep the other parent notified of a mobile telephone number and email address where he/she may be contacted in the event of an emergency involving the child.
Each party shall notify the other by email transmission not less than 7 days before changing their home address, email address and mobile telephone number.
Each of the Mother and Father are hereby restrained by injunction from speaking to the child or to any other person in the child’s hearing in derogatory terms about the other parent or about the other parent’s respective partners.
Each of the Mother and the Father shall use their best endeavours to ensure that any third party shall not speak to the child or to any other person in the child’s hearing in derogatory terms about the other parent or about the other parent’s respective partners.
That in relation to school and extra-curricular activities, events and notices:
(a)Each of the parties shall do all things necessary if required to authorise the Principal of the child’s schools to provide to each of the Mother and the Father duplicate copies of school reports, school photographs, notices of parent/teacher meetings, school assemblies, excursions, sport and swimming carnivals and any other school activities to which parents are invited to attend and any other correspondence or notification otherwise relevant to the child;
(b)In the event that the child’s schools cannot provide duplicate copies of the documents referred to in paragraph (a) then each party shall provide to the other duplicate copies of the documents referred to in paragraph (a) as soon as reasonably practicable after receiving such documents and in any event within 7 days;
(c)In the event that either party is notified in writing or otherwise of any school or non-school extra-curricular activity of which the child or either of them is to be involved, that parent shall advise the other parent as soon as reasonably practicable after receiving such notification and in any event within 48 hours.
That the Mother and the Father shall each do all acts and things, sign all such documents as may be necessary, attend all Government offices, provide all such necessary documents and pay all such necessary fees as may be required by the Australian Passports Office within 14 days of being requested to do so either by the Father, the Mother or an authorised government officer for the purpose of renewing and/or applying for passports for the child.
The Mother shall retain in her possession for safekeeping all and any of the child’s passports other than for the purpose of the child’s travel pursuant to these Orders.
That either party shall be permitted to take the child out of Australia for holidays and in relation to either party taking the child out of Australia (“the travel”):
(a)So far as practical, the occasions on which either party takes the child out of Australia are to coincide with normal school holidays;
(b)The party proposing to take the child out of Australia shall give the other party as much notification as possible of his or her intention to take the child out of Australia and in any event will give not less than 45 days written notice of such intention;
(c)The party proposing to take the child out of Australia shall furnish to the other party not less than 30 days prior to the proposed departure, an accurate itinerary to include a copy of the party’s and the child’s airline tickets (if available, notwithstanding electronic ticketing), the departure date and return date, the country or countries the party and the child will be travelling to, the approximate dates on which the party and the child will arrive and depart each country and a telephone number and address at which the party and the child can be contacted in each country;
(d)On the occasions that the Father proposes to take the child out of Australia in accordance with these Orders and it is necessary for the purpose of this travel that the child be in possession of her passport/s, the Mother shall release to the Father the child’s passport/s for the purpose of such travel and for the purpose of the Father’s compliance with these orders, within 48 hours of his written request so to do and the Father shall within 48 hours of his and the child’s return to Australia deliver the child’s passports to the Mother for safe custody.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
That the parties shall forthwith do all acts and things and sign all such documents as may be necessary to give effect to these Orders.
That the Registrar of the Federal Circuit Court of Australia be appointed pursuant to Section 106A of the Act to execute any document and/or instrument necessary to give effect to the foregoing Orders in the event of any of the parties failing, refusing or neglecting to execute such document within 7 days of being requested to do so by any of the other parties or by the other parties’ legal representatives and the cost of procuring due execution of the document/s and/or instrument/s shall be borne on a solicitor/own client basis by the party in default and the party not in default shall be at liberty without further to deduct from any moneys payable to the party in default pursuant to these orders such costs as have been incurred by the party not in default pursuant to this Order.
That the Registrar or other officer is authorised to execute any such necessary document and/or instrument pursuant to the above Order upon being satisfied by Affidavit that refusal, neglect or default as the case may be has occurred.
IT IS NOTED THAT otherwise than as specifically provided herein, wherever the phrase ‘in years ending in an odd number’ appears herein, that odd numbered year shall commence from 2013 and wherever the phase ‘in years ending in an even number’ appears herein, that even numbered year shall commence from 2014.
AND IT IS FURTHER ORDERED THAT:
The child of the marriage X born (omitted) 2003 is to live with the Mother.
In addition to the times set out in Order (1) above, the child X is to spend time with the Father during the school term as follows:
(a)Each alternate week from the conclusion of school on the Friday to the commencement of school on the following Tuesday irrespective of whether the Monday of that week is a public holiday or not;
(b)In the off week, from the conclusion of school on the Thursday until the commencement of school on the Friday; and
(c)At all other times by agreement of the parties in writing.
High School
The parties are to do all acts and things and sign all documents necessary to ensure that the child X shall be enrolled to attend one of the following high schools by no later than 31 July 2015 after the parties have consulted with each other and taken the child’s wishes into account:
(a)(omitted) School;
(b)(omitted) High School; and
(c)(omitted) High School.
Each party must within 14 days of the date of these Orders notify the other party of a landline telephone number upon which they may be contacted in the event of a medical or other emergency involving the welfare of the child and each party is restrained by injunction from telephoning the other on the landline telephone number for any purpose other than a medical or other emergency involving the welfare of the child.
IT IS NOTED that publication of this judgment under the pseudonym Page & Page is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7223 of 2007
| MR PAGE |
Applicant
And
| MS PAGE |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the father for parenting Orders relating to the parties’ daughter, X, who is nine years and ten months old. X was born on (omitted) 2003. She currently lives with her mother but spends time with her father for five nights each fortnight, being:
a)From after school on Friday until the commencement of school on Monday in one week; and
b)From after school on Wednesday until the commencement of school on Friday in the other week.
The Father seeks an equal time arrangement on a week-about basis. The Mother seeks that there should be no change to the current arrangements.
The parties are also at issue about the High School the child should attend in 2016 and whether or not the Father should provide to the Mother his current landline telephone number.
Although the parties have different parenting styles, neither party complains that the other is a bad parent or that the child does not have a warm and loving relationship with each one. The Family Consultant who prepared the Family Report, Ms A, commented in her oral evidence that the fact that X appeared to have a happy and loving relationship with each parent was a credit to the way in which each parent had been involved with their daughter.
The parties were able to agree on a number of important issues involving their child and Orders will be made by consent on such important subjects as:
a)The child’s time with each parent during school holidays;
b)Arrangements for Father’s Day, Mother’s Day, Christmas and the child’s birthday;
c)Equal shared parental responsibility;
d)The fact that the child will continue to attend the (omitted) Primary School at (omitted) until she completes Year 6 in 2015;
e)Keeping each other informed about relevant matters about their child;
f)Passports; and
g)Travel.
The fact that the parents are unable to agree about the amount of time the child spends with the Father during the school term, the appropriate high school for the child and the comparatively minor issue of a landline telephone number is an indication that they have sincerely held but differing views about what is in their child’s best interests.
Background
The parties were married on (omitted) 2001 and separated on 11th March 2006. They were divorced on 16th December 2007.
There is one child of the marriage, X, who was born on (omitted) 2003. There have been informal arrangements about the time that the child spent with the Father, which was to some extent affected by the fact that the Father was working shift work. This ceased in 2009 and a more regular arrangement has been in force since then.
The Father remarried on (omitted) 2009. He and his wife have two daughters, who were born on (omitted) 2010 and (omitted) 2012.
The former matrimonial home was sold after the parties’ separation. The Mother now lives at (omitted) and the Father lives at (omitted). The child has been attending school at (omitted) Primary School at (omitted) since the commencement of the first school term in 2009. She is currently in Year 4 and it is the intention of both parents that she will continue her primary education at that school.
The Father has been seeking an equal time arrangement for X since October 2010 but the mother has not agreed. They did try an arrangement whereby the child spent 5 nights with the mother followed by 4 nights with the Father, but the Mother ended that arrangement in July 2011.
On 29th October 2012 the Father commenced proceedings in the Family Court seeking orders that:
a)The parties should have equal shared parental responsibility for X;
b)The child should live with each party in a week-about arrangement each fortnight as follows:
i)With the Mother from 3:00pm on Friday until 3:00pm the following Friday; and then
ii)With the Father from 3:00pm on Friday until 3:00pm the following Friday;
c)That the child should attend High School in Year 7 at a High School agreed between the parties and failing such agreement, at a High School located at a middle distance between the parties’ places of residence; and
d)Other ancillary orders.
The Mother filed a Response on 3rd December 2012. In that documents she sought an order providing that the child’s time with the Father should be reduced to four nights a fortnight, being:
a)Alternate weekends from after school until 9:00pm on Sunday; and
b)In the off week, from after school Wednesday until the commencement of school on Friday.
This arrangement, involving a reduction of the Father’s time from five nights per fortnight to four, was not argued at the hearing.
The Mother also sought an order that the child should commence attending a High School:
a. as far as possible, that which is to be attended by her current school friends and acquaintances;
b. local to the home of the Mother and in the area in which the child has lived all her life; and
c. of the child’s choosing.
This proposed order was not argued at the hearing.
The parties attended a Child Responsive Program meeting with Ms A on 17th January 2013 and again on 12th February 2013. On the second occasion the child attended. The parties discussed the issues between them and the Family Consultant suggested that they may benefit from attending a parenting after separation program to increase their ability to act supportively of each other.
On 25th March 2013 a Registrar of the Family Court transferred the Application to this Court.
On 4th June 2013 I ordered a Family Report to be prepared and listed the Application for final hearing on 17th and 18th October.
The Family Report was completed on 25th September 2013. The Report was prepared by Ms A, who had previously seen the parties.
Evidence
The Father relied on the following:
a)His Application of 29th October 2012;
b)His affidavit affirmed 11th October 2013;
c)The affidavit of Ms T affirmed 11th October 2013;
d)The Child Responsive Program Memorandum dated 26th February 2013; and
e)The Family Report dated 25th September 2013.
The Mother relied on:
a)Her Response filed on 3rd December 2012;
b)Her affidavit affirmed on 16th October 2013; and
c)The Family Report.
Both the Father and his wife, Ms T, gave oral evidence. The Mother gave oral evidence. The Family Consultant also gave oral evidence.
Orders Sought
The Mother’s counsel, Mr Guterres, prepared a Case Outline Document to which a Minute of Proposed Orders was attached. This document, dated 15th October 2013, was important in that it contained proposed orders that were significantly different from the orders sought in the Mother’s Response and was used by counsel for the parties as a basis for negotiations which led to a narrowing of the issues between the parties. It is regrettable that the Mother’s material was not made available until 16th October 2013, the day before the first day of the hearing, rather than by 4th October, the date set by the Court as the last day for filing affidavits. Had the Minute of Proposed Orders been available earlier, it would no doubt have assisted in the preparation of a Minute of Consent Orders, which would have been preferable to the course that had to be taken, which involved Counsel for the Father reading the document out aloud and indicating which orders were to be agreed to and which were still in dispute.[1]
[1] The Judges of this Court have almost despaired of the ability of practitioners in the family law jurisdiction to comply with trial directions within the time specified by the Court. It is noteworthy that those practitioners who appear in the Court’s general federal law jurisdiction do not seem to experience the same difficulty.
The Order that the Father seeks about time with the child during the school term remain unchanged, in that he seeks a week-about equal time arrangement. The Mother, however, no longer seeks an order reducing the Father’s time with the child to four nights per week. The order that she now seeks would effectively formalise the status quo:
i. Each alternate weekend from the conclusion of school on the Friday to commencement of school on the Monday;
ii. In the off week, from the conclusion of school on the Wednesday to the commencement of school on the Friday;
iii. At all other times by agreement of the parties in writing.
The Mother now seeks an order about the choice of the child’s high school in these terms:
The parties shall do all acts and things and sign all documents necessary to ensure that the child shall be enrolled to attend one of the following high schools by no later than July 2015 as nominated by the child in consultation with the parties:
i. (omitted) School;
ii. (omitted) College;
iii. (omitted) High School, (omitted)
The Father now seeks an order in similar terms, except that he nominates three different schools:
a)(omitted) College, (omitted);
b)(omitted) High School, (omitted); and
c)(omitted) High School, (omitted).
The issue between the parties about the provision of a landline telephone number is that Ms T has expressed some reluctance about this because, she said, the Mother used to ring constantly on the landline and she found that difficult. She said in cross-examination that it would make her uncomfortable if the Mother were to return to her previous practice of constantly “calling and calling” on that number.
The Family Report
The Court has had the benefit of a Family Report, prepared by Ms A, a Family Consultant at the Sydney Registry. Ms A had previously interviewed both parents and the child in January and February 2013 as part of the Child Response Program.
For the purpose of preparing her Report, Ms A interviewed both parents, Ms T, and the child. She observed the child in the company of her father, her step-mother and her two half-siblings, and later with her mother. Ms A also telephoned the child’s school and spoke to her class teacher.
The Family Consultant identified the issues as:
a)The parents’ ability to co-operate as parents and the impact of parental conflict upon the child; and
b)The child’s age and stage of development.
Ms A noted that the Father claimed that the Mother did not include him in many important decisions and was dismissive of suggestions that he made about extra-curricular activities, high school or the attendance by the child on some special occasions.
The Father said that an equal time arrangement would:
a)improve the child’s relationship with him’
b)cement her understanding that he was as equally important in her life as her mother;
c)allow her to feel more comfortable when she is at his home;
d)offer her more stability, with fewer transitions from one home to the other;
e)allow the child to spend more time with her two younger sisters; and
f)may reduce confusion about the child’s items being lost or forgotten between the parents’ homes.[2]
[2] Family Report paragraphs [13]-[15]
The Family Consultant reported the Mother as making some comments “that suggested she believes that she has the primary decision making power for X as X has always been primarily in her care.”[3]
[3] Ibid at [16]
The Mother said to Ms A that the Father’s suggestion that the child should attend school or activities at a location half way between the parents’ homes did not take into account the child’s wishes to attend activities or high school with their friends. Further:
She is concerned that school or activities at a midway point between their homes would increase the amount of travel for X as she would then be required to travel longer distances from both homes as opposed to one.[4]
[4] Ibid at [18]
The Mother expressed the view that the child should return to her care one night earlier to reduce the amount of travel from the Father’s home to school:
She is concerned that, in the current arrangement, X has to wake up very early when she is in Mr Page’s care and this causes her to be “grumpy” and tired and it distracts her from her school work and social interactions.[5]
[5] Ibid at [21]
Ms T “spoke fondly” of the child and supported her husband’s view that the child would feel more at ease at their home if there was a week-about arrangement.[6]
[6] Ibid at [23]
The Family Consultant saw the child as a “pleasant, friendly and creative young girl” who appeared to be “fairly relaxed and open”.[7]The child was aware of her parents’ conflict and wanted to stay out of the dispute, wanting her parents to “sort it out”.[8]
[7] Family Report at [24]-[25]
[8] Ibid [25]
Importantly, X expressed a preference for her mother’s care for a variety of reasons. She appeared to Ms A to have some resistance to spending more time with her father during the week because she has to wake up earlier to get to school when she is with him. However:
She also said she likes the current configuration as she gets to spend time with her father each week and indicated that she would not like to go longer than one week without seeing her father.[9]
[9] Ibid [27]
Ms A observed the child to be extremely at ease, happy and well engaged with her father and his other family, and “they appeared to be a loving and cohesive family unit”.[10] Similarly, the child and her mother “appeared to be very attuned to each other, and appeared to have a very fun and loving relationship”.[11]
[10] Ibid at [28]
[11] Ibid at [29]
The Family Consultant’s evaluation was very complimentary to both parents in regard to X:
It is positive that X’s parents have been able to facilitate X to have such a strong bond with each of them, despite X’s young age at the time of the parental separation. It is clear that X is very loved by her mother, father, step-mother and sisters and X’s quiet confidence and creative nature is perhaps a testament to how encouraging her parents have been of her and how secure they have made her feel.[12]
[12] Ibid at [31]
In her evaluation, Ms A questioned whether the child’s comfort level in her father’s home would improve significantly by her spending more time with him, if she is naturally more inclined to her mother’s care. However:
It may be beneficial for X, however, to have fewer changeovers so she is not frequently required to reacclimatise to two very different homes and parenting styles.[13]
[13] Family Report at [33] page 16
The Family Consultant expressed the view that, ideally, it would be preferable for the child to attend a high school that was a reasonable travel distance from both parents’ homes that would also facilitate continuing the peer relationships she has already established, but this does not appear to be a possibility. She also stated that a reduction in the time that X were to spend with her father and sisters would be the least desirable option.
Ms A recommended that:
a)The parents should share parental responsibility;
b)X should live with her mother;
c)X should spend time with her father for five nights a fortnight from Thursday to Tuesday; and
d)It would be advisable for the child to attend a school located half way between the parents’ homes.
The law to be applied in Applications for Parenting Orders
The objects of Part VII of the Family Law Act 1975 (Cth) are set out in s.60B(1), which provides for children’s best interests to be met. The principles underlying those objects are set out in s.60B(2).
Section 60CA of the Act requires the Court to regard the best interests of the child as the paramount consideration when it is deciding whether to make a parenting order in relation to the child. Section 60CC sets out the way that a court determines what is in a child’s best interests, by having regard to the primary and additional considerations set out in subsections (2) and (3) respectively.
Subsection 60CC(2A) requires the Court to place more weight on the consideration in s.60CC(2)(b), the need to protect the child from physical or psychological harm by being subjected to or exposed to abuse, neglect or family violence. It should be made very clear that this is not a relevant consideration in the present case.
The Court is required by s.61DA of the Act to apply the 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. This presumption does not apply in cases of abuse or family violence, again, not a relevant consideration in the present case, and the presumption may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for the parents to have equal shared parental responsibility.
Where the Court does make an order for equal shared parental responsibility, the Court is then required by s.65DAA(1) to consider whether it is both in the child’s best interests and reasonable practicable for the child to spend equal time with each parent. This is a relevant consideration in the present case, and one of the issues that needs to be decided.
If the Court does not make an order that the child should spend equal time with each parent, the Court must then consider whether it is both in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent (s.65DAA(2)). This is a relevant consideration in the present case. The Family Consultant said in her oral evidence that the child in this case is currently spending substantial and significant time with each of her parents.
All of those matters have been considered, insofar as they are relevant.
Conclusions
The parties have agreed that they should have equal shared parental responsibility for their daughter. What the Court must now do is consider whether it is both in her best interests and reasonably practicable for her to spend equal time with each parent. Ms A said in evidence, she is currently spending substantial and significant time with each of her parents.
It is the recommendation of the Family Consultant that the child should live with her mother and spend a substantial block of time each fortnight with her father. Ms A has expressed some doubt about the Father’s view that the child’s relationship would be improved by spending half of each fortnight with him, enabling her to feel more comfortable in his home. Ms A has spoken of the child’s natural inclination to spend more time with her mother. She is of the view that spending a block of time in the Father’s household would enable the child to acclimatise to the different, and more strict, parenting regime that applies in the Father’s household.
The question of reasonable practicability also arises, as the parties live twenty or more kilometres from each other’s homes, which has led to concerns about the travelling time from home to school. In my view, the issue of which high school the child should attend has to be left until the Court has decided whether the child is to spend equal time with each parent, as the Father wishes.
The Court must regard the best interests of the child as the paramount consideration. It is clearly in X’s best interests to have a meaningful relationship with both of her parents. She already has that. As I mentioned earlier, this is not a case where the Court needs to consider the need to protect the child from physical or psychological harm in the care of either of her parents. She has loving parents who pose no threat of harm from abuse, neglect or family violence.
The Court should consider the views of the child and any factors, such as her maturity and level of understanding, that are relevant to the weight to be given to her views. The child’s views emerge clearly from the Family Report. She is a happy girl with close and affectionate relationships with her parents, her step-mother and her sisters. She has expressed clear views that:
a)She enjoys spending time in both households;
b)She has a slight preference for spending more time with her mother than with her father;
c)She finds some difficulty in the requirement to get up earlier on the days when she has to go to school from her father’s place;
d)She complains at times about the stricter regime that applies in her father’s household but nevertheless enjoys spending time with him; and
e)She would not like to go for more than a week without seeing her father.
It would be undesirable for her to spend less time with her father than she does now, but she has expressed a reasonable view about why spending more time with him during school weeks would not be to her liking. I put to the Family Consultant that the child’s views about not spending more of the fortnight with her father also reflected a desire not to spend correspondingly less time with her mother, with whom she has a strong bond.
It is certainly the child’s view that spending five nights a fortnight with her father and the other nine nights with her mother is an arrangement with which this child is comfortable and would like to see continue.
This little girl has a strong and loving relationship with both of her parents, her step-mother and her half-sisters. A reduction in the time that she spends with any of them would be a change of circumstances that she may well find not to her liking, at least in the immediate future.
It is also a relevant consideration that until the end of Year 6, in 2015, this child will continue to attend (omitted) Primary School, which is at (omitted) and some 3.9 kilometres from her mother’s home. It is 17 kilometres from her father’s home.[14] Thus, whatever high school the child is to attend in 2016, the father’s proposal for an equal time arrangement on a week-about basis would have the immediate effect of increasing the child’s travel time to school on two days each fortnight.
[14] See Exhibit 1, the Schedule prepared by the father.
Moreover, the child would be required to get up, on her own estimate, over an hour earlier to get to school on five consecutive mornings a week, rather than three mornings with a break between them. The Mother has given evidence that the child is tired when she gets home on Friday afternoon after spending two nights at her father’s home.
The likely effect of this radical change in the child’s circumstances would be to increase her travel time and her level of fatigue.
In my view, following the recommendation of the Family Consultant, introducing an equal time week-about arrangement would not lead to an improvement in the child’s situation and, therefore, would not be in her best interests.
Having made that finding, it is not necessary for the Court to consider the reasonable practicability of such an arrangement, because s.65DAA(1) requires the Court to be satisfied as to both the requirements in paragraphs (a) and (b) as a prerequisite to a consideration of making an order for the child to spend equal time with each of her parents. That said, I have some doubts about the reasonable practicability, based on how far apart the parents live from each other and the impact that this arrangement may have on the child (see s.65DAA(5)).
In my view, it is both in the child’s best interests and reasonably practicable for her to spend substantial and significant time with each parent. She has been doing that already under the informal arrangement between her parents, and the Family Consultant has noted that the parents “have provided the foundation for X to grow to be a well-adjusted adult, by facilitating regular time with each parent in a relatively conflict free environment thus far.”[15]
[15] Family Report at [31]
There is no basis for reducing the amount of time that this child currently spends with each parent and it would not be in her best interests to do so. It was submitted by Mr Dura of Counsel, who appeared for the father, that the Court might, in the alternative, consider an arrangement whereby the child were to spend six nights a fortnight with her father and eight nights with her mother. I have given that proposal some thought, but it would still mean a reduction in the time that the child spends with her mother and, incidentally, it would mean that there would be a period of more than a week before the child saw her father, unless the child would spend two three-night blocks with her father.
This latter arrangement would not be in the child’s best interests because it would mean that the child was constantly from one parenting regime to another, which appears to me to be disruptive.
This does not necessarily mean that the current arrangement of three nights/two days over a weekend and then two nights/two days Wednesday to Friday must continue unchanged.
The Family Consultant recommended that the arrangement should change to one block of five nights, from after school Thursday to the commencement of school on Tuesday. The advantage of this arrangement, in her view, would be that the child would have the ability to acclimatise to the different parenting regime that applies in her father’s household.
After some consideration, I have decided to adopt a slightly different pattern, although it will still involve five nights a fortnight in the father’s household. I raised this proposal with the Family Consultant, who conceded that it would still allow a longer block of time with the Father but would still involve the same amount of changeovers.
Of course, the Court is not bound to follow everything that is contained in a Family Report, although Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his or her ultimate conclusions (Hall & Hall[16]).
[16] (1979) 5 Fam LR 609; FLC 90-713
I propose to order that the child should spend a block of time with her father from after school on Friday until the commencement of school on Tuesday in the first week of the fortnight, an increase of one night from the present weekend arrangement, and from after school on Thursday until the commencement of school the following morning in the other week.
One of the reasons for this arrangement is that the child would have a longer block of time with her father which includes the weekend. This would allow her more time to acclimatise to the different parenting regime in her father’s household, as suggested by the Family Consultant. There would be two mornings when the child has to travel the longer distance to school from her father’s residence, but she then would have Wednesday and Thursday mornings when she would get up later to go to school. She would then have one Friday morning when she had her early start to go to school, but she would then be back at her mother’s home and, hopefully, would not be quite so tired on the Friday afternoon.
Another reason for the child spending the Monday in her father’s care is that occasionally the Monday would be a public holiday, on days such as the Queen’s Birthday or Labor Day, which are always on a Monday. The Mother said in evidence that the parents currently have to negotiate about public holiday Mondays, not always successfully. This way, there would be no argument about a Monday.
It is also a consideration that the child herself said that she would not want to go for more than a week without seeing her father, which is achieved by this arrangement.
Finally, this rearrangement is a less radical change than the five night/four day block proposed by the Family Consultant.
The other big issue between the parties is the question of the high school for this child to start at the beginning of the 2016 school year. There is no issue about the fact that X will continue to attend her present primary school until she finishes year 6 in 2015.
Each party has proposed three schools and provided research material about the merits and disadvantages of each. As was discussed with counsel during the hearing, the Court will not embark on an exercise of comparing NAPLAN scores to determine which school provides the best academic environment. Such an exercise would involve expert evidence which is not before the Court.
The question of the choice of a school for a child has been considered by the Full Court of the Family Court in Re G:Children’s Schooling[17], where Nicholson CJ, Kay and Brown JJ held that:
a)There is no legal presumption in favour of the status quo or choices of the residence parent, but the reality of children residing predominantly with one parent may be relevant;
b)The objects and principles in s.60B of the Family Law Act are to be taken into account in considering the relevant matters; and
c)It is appropriate to identify the s. 68F(2) matters (now s.60CC(3)) which are significant.
[17] [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025
The Mother proposes three high schools for the child:
a)(omitted) at (omitted);
b)(omitted) College at (omitted); and
c)(omitted) High School, also at (omitted).
The Father proposes three different high schools:
a)(omitted) High School, at (omitted);
b)(omitted) High School, at (omitted); and
c)(omitted) College at (omitted).
Very helpfully, the Father prepared a schedule showing details of those schools, including a description of the type of school, the distance of each one in kilometres from each parent’s home and en estimate of the travelling time between each parent’s home and each school using public transport.
The Family Report does not contain any evidence about the child’s wish to attend any one of these schools, but the Family Consultant states:
X is at an age where her peer relationships are becoming increasingly more important to her and by the time she begins high school, her peer relationships will likely be the predominant area of concern for her. As such, X will likely want to spend a predominant amount of time at whichever home is more conducive to her peer relationships and supports ease of access to school.[18]
[18] Family Report at [35]
The Mother’s preferred school appears to be (omitted) of the (omitted) ((omitted)) at (omitted), which is a girls’ school in the (religion omitted) system situated some 3 kilometres from the Mother’s home but 19.6 kilometres from where the Father lives. The child has been attending a (religion omitted) primary school and it is the Mother’s evidence that (omitted) School is a “feeder school” for (omitted). This would mean that a number of the child’s existing school friends would be expected to go on to (omitted) School.
(omitted) College at (omitted) is also a (religion omitted) school and is even closer to the Mother’s home, at a distance of 2.9 kilometres. However, it is 21.2 kilometres from the Father’s home and is not favoured by the Father. It is also the most expensive of the six schools, with estimated fees of $4,855.00 per annum. The Father pays child support as assessed and half of the school fees, but the fees may well be burdensome, even though the Mother deposes that the tuition fees are comparable to those currently paid for X’s attendance at (omitted) Primary.[19]
[19] Affidavit of Ms Page 16.10.2013 at paragraph [120]
For the reasons of expense and distance from the Father’s home, I consider that (omitted) College should not be chosen.
(omitted) High School is a State High School situated only 2.5 kilometres from the Mother’s home but 20.8 kilometres from the Father’s home. The Mother deposes that the child could travel to and from school by bus.
The Father favours (omitted) College at (omitted), which is a (religion omitted) school situated 15 kilometres from the Mother’s home and 6.5 kilometres from the Father’s home. The Father estimates the annual fees at $3,740.00. Travel time from the Mother’s home is stated by the Father at 52 minutes, involving 2 buses and a train, and 39 minuted from his home, involving a bus and a train.
The travel time and the expense would eliminate (omitted) College.
(omitted) High School is closer to midway between the parties’ homes, at 8.2 kilometres from the Mother’s home and 13.5 kilometres from the Father’s home. Travel time from the parents’ homes is about equal, at 53 and 55 minutes, each involving a bus and a train. Unlike the other schools, it is co-educational.
(omitted) High School is a selective State High School, which would require an application to be made. It is further from the Mother’s home than the Father’s home at 12.5 kilometres as against 9.4 kilometres, with travel times of 55 minutes by bus as opposed to 38 minutes by bus and train.
The fact is that each fortnight the child will be going to school from her mother’s home on seven days each fortnight and from her father’s home on three days each fortnight. Any school that requires the child to travel for a longer period of time on most of the school days cannot be considered, in my view.
There was no previous agreement between the parties that needs to be taken into account. It is relevant that the child is attending primary school in the (religion omitted), but neither parent has expressed a strong desire for the child to attend a (religion omitted) High School over a Sate School.
In my view, proximity to the Mother’s home, from which the child will be travelling on more occasions than from the Father’s home, and the likelihood that the child’s school friends from her current school will be more likely to attend a school in the vicinity of the Mother’s home, suggest that it will be in this child’s best interests to attend (omitted) School, (omitted) High School or (omitted) High School.
The final issue is whether the parties should provide landline telephone numbers. The Father’s evidence is that the problems that previously existed with mobile phone reception in his area no longer exist, after a change of providers, so there should not be a necessity for a landline number to be provided. Ms T gave evidence that she would feel uncomfortable if the Mother were to return to an earlier practice of constantly telephoning her residence.
In my view, if both the Father and the child have a mobile telephone, the Mother would normally be wanting to telephone one or the other of them rather than Ms T, so the landline would not be used frequently.
The landline telephone number should be provided but it should be kept for emergency use in circumstances concerned specifically with the welfare of the child and for no other purpose. I will make an injunctive order to ensure that situation.
I believe that it is in the best interests of the child that her parents should have the means to communicate with each other in an emergency affecting their child, and if for some reason a mobile telephone fails then, and only then, resort must be had to a landline.
I will order accordingly.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 23 October 2013
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Injunction
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Jurisdiction
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