Paquette and Paquette
[2008] FMCAfam 137
•20 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PAQUETTE & PAQUETTE | [2008] FMCAfam 137 |
| FAMILY LAW – Parenting – interim application by father for children to live with each party on equal time basis and to return children to usual schools-mother’s unilateral move one hour away and unilateral change of schools. |
| Family Law Act 1975 |
| Cowling [1998] FLC 92801 Goode & Goode [2006] FLC 93-286 Masling and Milliken [2007] FLC 93-343 |
| Applicant: | MR PAQUETTE |
| Respondent: | MS PAQUETTE |
| File Number: | SYC 512 of 2008 |
| Judgment of: | Sexton FM |
| Hearing date: | 13 February 2008 |
| Date of Last Submission: | 13 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 20 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Schonell |
| Solicitors for the Applicant: | Barkus Edwards Doolan |
| Counsel for the Respondent: | Mr J. Dupree |
| Solicitors for the Respondent: | Russo & Partners |
THE COURT ORDERS PENDING FURTHER ORDER THAT:
Within 24 hours, the parties do all things necessary to re-enrol L born in April 1997, and T born in October 1999 at S School at Mxxx and L and T commence at S School at Mxxx as soon as possible but no later than Monday 25 February 2008.
Within 24 hours, the parties do all things necessary to re-enrol R born in February 2004 at C School at Nxxx and R commence at C School at Nxxx as soon as possible but no later than the week beginning 25 February 2008.
Each party ensure the parties are named as first emergency contacts at S School, Mxxx and C School, Nxxx.
In the event either S School at Mxxx or C School, Nxxx refuse the re-enrolment of any of the children, this matter be re-listed before me at 48 hours notice.
Subject to Order (7) the children live with the father as follows:
(a)During school terms for 7 days in each alternate week with changeover to occur on Sunday afternoons at 4 p.m;
(b)At additional or alternate times as agreed between the parties;
(c)During the short school holidays, for the first 7 days of the school holiday period, commencing on the first Saturday at 10 a.m. and concluding on the second Saturday at 5 p.m;
(d)If the children are not in the father’s care on a child’s birthday, from 4.00p.m. to 6.30p.m. if the child’s birthday falls during the school week, and from 12 noon to 5.00p.m. if the child’s birthday falls on a weekend or during the school holidays; and
(e)If the children are not in the father’s care on the Easter weekend, on Easter Sunday from 12 noon to 5.00p.m.
The children live with the mother at all other times.
The mother be at liberty to spend time with the children on two weekday afternoons during the week they are living with the father, being Tuesdays and Thursdays unless other days are agreed between the parties.
For the purposes of Order (7), the following occur:
(a)The mother collect the children from school and pre-school and care for the children at the former matrimonial home until 7 p.m;
(b)The mother prepare and stay for the evening meal and advise the father by text message or by phone, when she is leaving;
(c)The father remain absent from the home until he receives the mother’s text message or phone call;
(d)The mother be restrained from removing the children from the lower north shore without the father’s agreement; and
(e)The mother be restrained from removing any item from the former matrimonial home without the father’s consent.
If the children are living with the father on any of the children’s birthdays or on Easter Sunday, the periods of time the children live with the father on those days be suspended as follows:
(a)On a child’s birthday, from 4.00p.m. to 6.30p.m. if the child’s birthday falls during the school week, and from 12 noon to 5.00p.m. if the child’s birthday falls on a weekend or during the school holidays; and
(b)On Easter Sunday from 12 noon to 5.00p.m.
The mother and father have equal shared parental responsibility for the children.
Each party be permitted to attend, even when the children are not in his/her care, religious, educational and sporting events and extra-curricular activities including, but not limited to, any school or pre-school event to which parents are invited and T’s first reconciliation on 12 March 2008.
The parties consult each other in relation to the children’s extra curricular activities, such activities be a continuation of their 2007 activities, unless otherwise agreed, and each party ensure the children attend those extra curricular activities
Each party notify the other of all events relevant to the children, including school and non-school events, giving the other parent sufficient time to attend such events.
The mother collect the children at the commencement of the periods of time they are living with her and the father collect the children at the commencement of the periods of time the children are living with him.
Each party keep the other informed at all times of residential address and contact details including mobile telephone numbers.
Each party notify the other of any health, welfare or educational issues concerning any of the children and of any action taken or treatment or medication provided to the children as soon as practicable.
Each party notify the other immediately or as soon as practicable of any serious injury or illness suffered by the children.
Each party provide all authorities required by S School at Mxxx or C School, Nxxx in order for the other party to obtain all documents and information regarding school activities and the children’s progress as soon as they issue and no later than 3 days after they issue. Such documents include school reports and newsletters and notices of parent/teacher interviews.
Each party provide all authorities and consents necessary to permit any medical professional who may treat any of the children to provide copies of any test results, letters of referrals, reports and notices received from medical professionals to the other party and authorise those medical professionals to discuss any aspect of the children’s health with the other party.
The parties attend a further child dispute conference with Ms Gabriel if available, or another family consultant in the Sydney Registry before Easter 2008, in an attempt to finally resolve parenting arrangements, the date and time to be determined by the Registry, noting the Court will provide the child dispute section with a copy of these Orders and reasons.
Pursuant to section 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 Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Paquette & Paquette is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth)..
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM 512 of 2008
| MR PAQUETTE |
Applicant
And
| MS PAQUETTE |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns interim parenting arrangements for L who is 10 years, T who is 8 years and R, 4 years of age. After a 17 year marriage, the parties separated on 12 December 2007 when the mother moved with the three children from the former matrimonial home at Nxxx, to her parents’ home at Cxxx.
Until the end of 2007, L and T attended S School at Mxxx, L for the last 3 years and T from the time he started school. The father says the parties had planned to keep L at S School until the end of Year 6, and then enrol her at O School in North Sydney in Year 7. This year L is in Year 5, T is in Year 3. In 2007, R attended C School five mornings a fortnight, located next door to the parties home in T Street, Nxxx. The father says R has completed one year of a three year programme.
After separation, the parties discussed the living and schooling arrangements for the children, and sought the assistance of a clinical psychologist, Ms D, to try to resolve issues between them. Ms D had been treating L’s anxiety condition for nearly three years. On 22 January 2008, the father says he received a text message from the mother which said:
I’m letting you know formally that our marriage is over. Once everything has been finalised, I will be moving to Cxxx to live. In the interim, I will stay at T [the home] or rent with your assistance. Meanwhile, the kids start at S School.
The father said that on the same day Ms D confirmed that the mother had decided to move back to the North Shore and the children would continue at S School and C School.
However, on Friday 25 January 2008, the mother’s solicitors advised the father by facsimile letter that the mother was not returning to Nxxx and that the mother had enrolled L and T at B School at Cxxx where they would be starting school on 30 January 2008. The mother acknowledges that she made these arrangements without consultation with the father and without his consent.
The father initiated these proceedings on an urgent basis on 31 January 2008 to have L and T returned to S School at Mxxx and R returned to C School. The father also sought orders for the children to live with each party on an equal time basis, changeover every 7 days. Although the mother did not file a Response, her counsel advised the court that she sought orders that the father’s application be dismissed, that the children live with her and spend time with the father as agreed between the parties. When pressed as to what time arrangements the mother believed best for the children, her counsel said she proposed 5 nights each fortnight, being two weeknights in one week and three weekend nights in the alternate week.
There are no current parenting orders. On 4 February 2008, I listed the matter for urgent interim hearing and ordered the parties to participate in a child dispute conference. I listed the matter for final hearing in September, ordered a family report and made directions for final hearing.
The father’s office is next door to his parents’ home. He has considerable flexibility in his employment arrangements. The father has been the primary bread winner and continues to support the mother and the children. The mother is not in the workforce, although used to do some work for the father’s business. The mother is available to care for the children full time. Though each party acknowledges the father’s role in domestic and child care activities during the marriage, the mother appears to have taken the primary domestic role, at least until relatively recently.
Since the parties separation on 12 December 2007, the father deposed to the children spending equal time with each parent, on a 5 to 6 day rotating roster during January. The father says the children have spoken to him every day when in their mother’s care and vice versa. The father says he had expected the children to be returned to him on 28 January 2008 but the mother did not return them. On 29 January 2008, the mother told the father the children would see him at the end of that week as they were starting school and needed time to settle in. The father then asked the mother to permit the children to spend time with him from Thursday 7 February until Monday morning 11 February, on the proviso he took them to school at Cxxx. The mother rejected this proposal but permitted the children to spend time with the father from Friday 8 February until Sunday 10 February. [1]
[1] Exhibit 5.
The father opposed the mother changing the children’s schools. He offered to move out of the former matrimonial home, so the mother and children could return to the home, at least until final arrangements could be determined or resolved. The father offered to meet all outgoings on the home, including the mortgage repayments, to pay school fees and all fees associated with the children’s attendance at
S School, Mxxx and C School, and to provide $400 a week for day to day expenses. [2] In the alternative, the father offered to rent alternative accommodation for the mother and children on the lower North Shore, so the children would not be living far from their schools or from him. The father invited the mother to inspect various properties and made appointments for the mother to do so. He annexed details of the properties, all located on the lower north shore, to his affidavit.
[2] Exhibit 4.
The mother rejected the father’s proposals, her solicitor describing them as a “narrowing and controlling arrangement.”[3] The mother says the father is “controlling” and she therefore wants to live in Cxxx with her parents and near to her extended family. The mother provides no explanation as to why she has changed the children’s schools. The mother’s counsel told the court that whether or not the Court ordered the parties to ensure the children’s attendance at S School and C School on the lower north shore, the mother intended to live with her parents at Cxxx.
[3] Letter from mother’s solicitors dated 30 January 2008. Annexure C to Father’s affidavit sworn 31 January 2008.
Issues in dispute
The issues for determination by the Court are, pending final hearing in September 2008:
i)Whether L and T should be re-enrolled at S School in Mxxx, and R at C School in Nxxx, or whether they should remain at B School and at pre-school in Cxxx; and
ii)How much time the children should spend with each party.
Legal principles
The principles governing parenting cases are set out in Part VII of the Family Law Act 1975. The Full Court in Goode & Goode [2006] FLC 93-286 says in interim proceedings, as in final proceedings, the Court must follow the legislative pathway.
In the recent decision of Masling and Milliken[4], her Honour Justice Boland examined in detail the impact of the 2006 amendments to relocation cases, including interim relocation cases. Her Honour held that the earlier core principles which must be applied when determining a parenting matter involving relocation remain valid:
·The child’s best interests remain the paramount but not the sole consideration;
·A parent wishing to move does not need to demonstrate compelling reasons;
·A judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
·The child’s best interests must be weighed and balanced with the right of the proposed relocating parent’s freedom of movement.
[4] [2007] FLC 93-343
Her Honour found there was no legislative mandate to consider different criteria in interim parenting applications involving relocation to final applications, although in an interim application, there will be an abridged inquiry. Her Honour said at paragraph 83 that before the changes to the Act of 2006, the principles in Cowling [1998] FLC 92-801 regarding the factors relevant to a child’s stability led generally to courts prohibiting relocation on an interim basis, or made orders which provided for the return of a child if only a short period had elapsed after a unilateral relocation by one parent.
At paragraph 84, her Honour says:
The cases demonstrate that sensibly Judges recognised that these very difficult cases, often with far reaching consequences for the child, required the full investigation which can only occur at a final hearing, or now by issues being identified and determined in a Less Adversarial Trial as contemplated in Div 12A of Pt VII.
Her Honour after considering the impact of Goode’s case on the principles in Cowling, says at paragraph 86 and 87:
I conclude, the legislation, including the matters referred to above in Goode, does require consideration of s 60CC, s 61D, and s 65DAA (with reference to s 4(1)) in dealing with all interim applications for parenting orders including applications involving a relocation, or where an “unauthorised” relocation has occurred.
As explained in Goode, the circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant.
Following the legislative pathway, section 60CA of the Act provides that I must regard the best interests of the children as the paramount consideration. To determine the children’s best interests I must consider the two primary considerations set out in section 60CC(2) and the 13 additional considerations set out in section 60CC(3) as far as they are relevant. Section 60CC(4) requires me to consider also the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. I must consider all the factors before making a determination. The primary considerations are consistent with the first two objects of the Act set out in section 60B to which I must have careful regard.
THE PRIMARY CONSIDERATIONS
The benefit to the child of having a meaningful relationship with both the child’s parents.
Each party acknowledges the importance of the other party in the lives of the children. The father proposes the children spend the same time with the mother as they spend with him. Although the mother would prefer the parties to be left to agree on the time the children spend with each party, the mother proposes the children spend a substantial amount of time with the father, being five nights each fortnight. Neither party contends the children do not presently enjoy and benefit from a meaningful relationship with each parent or that these meaningful relationships should not continue. This is a factor to which I give considerable weight.
The need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.
Neither party’s counsel addressed the court in relation to this factor. However, the mother says in her affidavit:
The applicant husband has an anger issue and whilst he has never physically hit me he has often shown an angry aggressive side which is very intimidating.
Given the mother was not cross-examined, and there was no other evidence before me on this issue, I am unable to make any findings about this allegation.
The only incident about which each party gives extensive evidence occurred on 5 February 2008 when the mother returned unannounced to the home at Nxxx with L, to collect a range of personal items including L’s ipod. Arriving at the home, and seeing the mother’s car in the garage, the father, anticipating trouble from the mother’s family, called his parents and the police before entering. Although the parties give different versions of the incident, there is no dispute that the parties had heated words, the police were involved and L was extremely distressed.
The incident reflects poorly on both parties. Given the tension between the parties, I find the mother was unwise to enter the home without advising the father, and there appears to be no reason why she did not do so. As to the father, I find he over-reacted in calling his parents and the police. He should have managed the situation quite differently.
In light of this limited evidence before me, I give this factor minimal weight.
THE ADDITIONAL CONSIDERATIONS
The child’s expressed views and the weight those views should be given.
Neither party adduces any independent evidence of the children’s expressed views as to the arrangements each child would prefer. If the parties are unable to reach agreement on their final arrangements, the children will spend time with a family consultant before final hearing, so their views can be taken into account and given appropriate weight.
Neither party refers to any views expressed by R. Each party gives some evidence as to L and T’s expressed wishes. The father says T told him by phone on 26 January 2008 that he did not want to change schools, and was distressed. The father says T has shown signs of insecurity since separation and follows him around when with him.
The mother says L told her on 24 January 2008, “I want to live here at Cxxx with Nonna and Nonno [her parents].” On 8 February the mother says L said, “Mum I really miss you, I miss you, I miss you. I miss you and I want to be with you.” She says L has a fear of disappointing her father and has said on several occasions, “I am scared of dad” “dad is really bullying me”.
The parties agree that L is an anxious and sensitive child and that T has shown signs of emotional distress over a considerable period. The parties have taken both children to therapy with Ms D. Given the children have recently been confronted by significant changes in their living arrangements and schooling, I find it unsurprising that L and T are expressing symptoms of insecurity and anxiety.
I am not satisfied these statements by either child are a reliable indicator of their views about the parenting arrangements. I therefore give minimal weight to this factor.
The nature of the relationships between the child and each parent and the child and other persons.
The father says the children have a close relationship with the paternal grandparents who live close by and whom they see several times a week. The father says the paternal grandfather spends time at the parties’ home in Nxxx because he grows vegetables in the garden. The father says the paternal grandparents have assisted and will continue to assist in the children’s care.
The mother says L has become close to her maternal grandparents and enjoys time with her young cousins in the Cxxx region and other members of her extended family.
I am satisfied the children enjoy loving relationships with members of extended family on the maternal and the paternal side.
The father says the three children have made close friends at S School and at C School and L has been very keen to have sleepover time with her friends. Her therapist, Ms D, corroborates this evidence. I take this factor into account.
The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent.
I find it difficult to reconcile the mother’s unilateral actions in moving the children to Cxxx to set up their lives there, with her assertion that she wishes to promote the children’s relationships with the father. The mother does not explain why, on 20 January she confirmed to Ms D, and on 22 January, she confirmed to the father that she intended returning to live in the Nxxx area and the children would attend their usual school and pre-school, yet at the same time, enrolled the children at B School. I agree with the father’s counsel’s submission that the mother either changed her mind very quickly, or deliberately misled the father. The mother provides no adequate explanation as to why she was unable to remain in the same area as the father, and leave the children at their usual schools until the parties were able to resolve post-separation parenting and financial arrangements. Her counsel says the mother finds the father “controlling” but the mother provides no factual basis for this assertion. The mother does not explain why it was necessary to force these young children to adjust to new schools when they were already adjusting to the breakdown of their parents’ marriage.
There are other undisputed facts to which I have regard on this issue. The mother has only offered the children time with the father from a Friday to a Sunday since school began; the mother did not name the father on the children’s enrolment forms at B School;[5] the mother has arranged tutoring for L and T without consulting the father; the mother has started R at dancing lessons without consulting the father; the mother was reluctant to propose specific times for the children to spend with the father pending final hearing, preferring a non-specific order as to time.
[5] Exbibit 2.
These are factors to which I give considerable weight.
The capacity of each parent and any other person to provide for the needs of the child including emotional and intellectual needs; the attitude to the child and to the responsibilities of parenthood demonstrated by each parent.
Neither party raised any troubling issues relating to the other party’s capacity. The father deposes to having been a hands-on father, having enjoyed flexible working arrangements. The father says in the last
12 months he has often delivered or collected the children from school and had the children in his office after school on occasions.
The mother says the father lacks capacity to manage the children day to day while they are attending school and pre-school. By way of example, she says the father refused to help T with the extra reading he was required to do at home; she says the father handed her a bag of washing when he returned the children on 10 February after they spent the weekend with him. However, I find it unlikely the mother’s concerns are significant given she proposes the children spend two weeknights in each alternate week with the father.
The mother raises some concerns about the father’s capacity to meet the children’s emotional needs. She says the father unnecessarily upset L by refusing to let her participate in sleepovers. The mother alleges the father took very little interest in T’s soccer last year, and disappointed T when he did not attend his gala day at the end of the soccer season.
The father does not deny the mother’s very significant role in the day to day care of the children and makes no criticism of her parenting capacity. I am satisfied each party has the capacity to care for the children day to day.
In relation to each party’s attitude to the responsibilities of parenting, I have already noted my concerns about the mother’s actions in January in moving the children to Cxxx and enrolling them in new schools without the father’s consent, when I am satisfied other options, considerably less disruptive to the children, were available to her. I take this factor into account.
The extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent including spending time with the child, participating in decision –making about his/her welfare, and facilitating the other parent to do the same, and the extent to which each parent and party has fulfilled his or her obligation to maintain the child, having regard to what has happened since separation.
I give weight to the fact that the father has continued to financially support the children since separation, and has endeavoured to make arrangements for the mother and children satisfactory to the mother, to enable her to remain in an area near to the children’s usual schools.
I take into account that the mother made no reasoned response or counter-offer to the father’s proposals for the mother to return to the home or to rent independently, to be near to the children’s schools and to the father, in order to ensure the least disruption to the children pending final resolution or determination of their post-separation arrangements. The mother says her parents have been helping her financially, but does not explain why her parents could not help her financially, if such help were necessary, while she lived in the Nxxx area.
The likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either parent or any other child or other person with whom the child has been living.
Whatever Orders the Court makes, as a result of the mother’s decision to live in Cxxx, a considerable distance from the father, the children will now be required to travel frequently. I have no doubt this will be hard for them, given they are accustomed to living close to their respective school and pre-school, have enjoyed friendships in their local area and will not as readily be able to participate in their usual extra curricular activities with their friends on the north shore.
I give some weight to this factor.
The practical difficulty and expense of a child spending time with and communicating with a parent
Neither party adduced evidence as to the time it takes to travel by car from Cxxx to Mxxx or Cxxx to Nxxx. However, given Cxxx is in Sydney’s southern suburbs and Nxxx is on Sydney’s north shore, I estimate the travelling time as at least an hour, possibly longer in times of heavy traffic. I take into account that this may be onerous for these young children.
Other characteristics of the children.
I take into account that each party describes L as a sensitive and anxious child, who is keen to please others and who has suffered migraines. I take into account that L struggled academically but has improved with the assistance of Ms D, her tutor and the school. I take into account that L has two particularly close friends in her class who live on the lower north shore and with whom she plays outside school. I have regard to Ms D’s comments as follows[6]:
The school has also been co-operative allowing intervention to be undertaken at the school and implementing suggested strategies. L has made excellent progress and is increasingly mastering and utilising the skills being taught… she is generally happier, less anxious, more settled and co-operative… she is more confident, is exhibiting less behavioural difficulties and is comfortable with her friendships and social interactions. Academically, she has made outstanding progress and has significantly closed the gap between her achievement in the classroom and expected achievement given her age and level of intellectual functioning.
[6] Page 2 of report of Ms D.
Although Ms D and the mother both say L reports being happy at
B School, I do not conclude, without further evidence, that the mother’s precipitous change of school for L has helped her, given her vulnerabilities.
T has also been seeing Ms D since 2007 in relation to difficulties he has been experiencing. T has required speech therapy and extra tutoring. It seems T is also a vulnerable child.
The mother annexed to her affidavit a letter from the Principal of
B School dated 7 February 2008. The Principal says that L has settled in and is making friends. T’s teacher reports that he is, “easily distracted in class, restless at times and presents as a rather shy boy who is lacking in confidence.”
I take these matters into account.
PARENTAL RESPONSIBILITY
Each party in these proceedings invites the court to make an Order for equal shared parental responsibility, neither claiming factors exist to rebut the presumption in favour of equal shared parental responsibility. On the evidence available to me at this stage, I am satisfied such an order is in the best interests of these children.
In the decision of Masling and Milliken [7] her Honour Justice Boland noted that the effect of an order for shared parental responsibility is to require parents to jointly make a decision about a major long term issue for the child. Major long term issues include matters such as the child’s education, religious and cultural upbringing, health, name and “changes to the child’s living arrangements that make it significantly more difficult for a child to spend time with a parent.” I find it inconsistent with the mother’s proposal for an Order for shared parental responsibility, that the mother implemented a change to the children’s living arrangements and schooling arrangements unilaterally, both being significant matters which required consultation between the parties and a genuine effort to reach a joint decision[8].
[7] At paragraph 66.
[8] Section 65DAC Family Law Act 1975
Her Honour Justice Boland said in Masling and Milliken[9]:
The operation of s 65DAC, when applicable, clearly precludes a unilateral move by one parent without notice and consultation with the other parent.
[9] At paragraph 77.
In this case, I propose to make an Order that the parties have equal shared parental responsibility for L, T and R. I am therefore required to consider whether making Orders that the child should spend equal time, or if not equal time, substantial and significant time with each parent would be in the best interests of the children and whether it is reasonably practicable.
Conclusion
As stated by Justice Boland in Masling and Milliken [10] the children’s circumstances immediately before a unilateral removal, particular when no abuse or violence is alleged, may be extremely relevant.
[10] At paragraph 87.
Until the parties separated just before the end of the 2007 school year, the children lived in Nxxx with their two parents and attended a school or pre-school very close to home. They spent time with each parent every day. They spent frequent time with their paternal grandparents, regular time with their maternal grandparents, and time with their friends. They participated in a range of extra curricular activities on the north shore and were engaged in private tutoring and counselling.
In January 2008, everything changed for the children. The mother moved them to their maternal grandparents’ home and to new schools. They are now spending significantly less time with their father and paternal grandparents, they do not attend the same extra curricular activities and have been removed from daily contact with their closest friends. Their day to day routine is quite different.
The father’s counsel submits the court should order the children’s return to their usual school and pre-school on the lower north shore, a return to the environment most familiar to them. The father’s counsel submits the court should order equal time with each parent, to give the children as much time as practicable with each parent. The father’s counsel submits that the children’s best interests must be served by promoting the children’s stability. Counsel urges the mother to consider the father’s proposals so she can live in the Nxxx area and the children can avoid the considerable travel the mother’s proposal involves. The father says S School and C School have confirmed to him that places are still available.
The mother and the maternal grandmother say the children appear happy living in waterfront accommodation with her and her husband in Cxxx attending school nearby. The mother says she has the emotional and financial support of her parents and the maternal grandparents can assist her with the children, whenever necessary. She does not intend to return to live on the north shore. The mother does not address the travelling the children will have to undertake during the school term, even on her own proposal and does not address how the children will manage moving between two households from such a distance.
The mother’s counsel submits the court should leave the children where they are until the court is in a position to assess where the children are best placed, and which school offers more. The mother’s counsel also argues that the parties should be left to work out the parenting arrangements as they have done since separation. The mother’s counsel did not address me on the provisions of Part VII to which I must have regard.
As noted by her Honour Justice Boland, the Court’s inquiry as to the children’s best interests is necessarily abridged at this interim stage. I have not had the benefit of any independent expert evidence, which will be available to the Court at final hearing. I have not heard from either party, and much of their evidence remains untested. I am therefore unable to determine what parenting arrangements will best promote the children’s welfare in the long term. That will be for determination in September.
It is regrettable that whatever Order I make in this case, at this interim stage, will adversely impact on the children, at least in the short term. Given the mother says she intends living in Cxxx, whatever orders I make about the children’s schooling and living arrangements, the children will be required to adjust to substantial and onerous travel between Cxxx and the lower north shore.
L and T have been at their new schools nearly three weeks. They have faced a big adjustment. If I order their return to S School, they will start the year behind their classmates. R has been away from C School since the end of last year, and if she returns there, will face an adjustment. If the mother’s application to move the children to B School is successful on a final basis, L and T will again have to change schools, and will be required to adjust to a new situation all over again. As already noted, these children are vulnerable.
If I leave the children at the Cxxx school and pre-school, their schooling will not be disrupted very early in the year and the mother is likely to feel more relaxed and supported. However, the children will miss out on seeing their established friends each day, and will miss their old school environment, their usual activities and the routine that is most familiar to them.
Her Honour Justice Boland said in Masling and Milliken[11]:
The cases demonstrate that sensibly Judges recognised that these very difficult cases, often with far reaching consequences for the child, required the full investigation which can only occur at a final hearing, or now by issues being identified and determined in a Less Adversarial Trial as contemplated in Div 12A of Pt VII.
[11] At paragraph 84.
And at paragraph 88:
It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General … make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis.
There is no evidence to suggest the children were not well settled in their school and pre-school until the end of 2007. In fact, the evidence is to the contrary. The school and pre-school are located in an area very familiar to the children, close to their home, to their father’s office to their paternal grandparents and to their friends. They have been at their new school for less than three weeks. I have decided it is in the children’s best interests to return to S School and C School immediately upon their re-enrolment. The question of where the children will attend school in the longer term will be decided at final hearing in September, if the parties are unable to reach agreement in the meantime.
I have considered the proposals of both parties in relation to the children’s living arrangements. The mother proposes the children spend two nights in one week on weeknights with the father, and a three night weekend on the alternate week. The father proposes the children spend one week with him and one week with the mother. Each party’s proposal involves at least significant and substantial time with each parent and each involves substantial travel time for the children while the mother remains living at Cxxx.
As already noted, the mother’s conduct during the January period is of concern. While I accept she had decided to leave the marriage and understandably needed her family’s support, I am not satisfied the mother fully considered the ramifications of the move for the children, particularly for L and T, either in relation to the impact on them of an abrupt change of school, or the impact on them of being removed from their home, their father and all that is familiar to them.
In considering the children’s living arrangements pending final order, I take into account the current tension between the parties and the distance between the parties. I take into account the primary roles taken by each party during the marriage, as far as I am able to assess those roles on the evidence so far available. I take into account the mother’s greater availability outside school and pre-school hours and the father’s working commitments. The children are young. I have decided it will be least disruptive for the children to spend week, and week about, with each party as proposed by the father, but with the mother spending some time with them in Nxxx in the week they are with the father. The children will have input from the mother on two school days during the week they are living with the father.
The father has offered to move out of the former matrimonial home so the mother and children can live there, as they always have. Alternatively, the father has offered to pay rent for the mother and children to live in the Nxxx area away from the home. He has offered the mother financial support for herself and the children. The mother has rejected these proposals, but I encourage her to reconsider.
Each party has the opportunity to live with his/her parents. It would therefore be possible for the children to live in the Nxxx home and for each party to move to that home when the children are living with that party. That is likely to be the least disruptive and the least confusing for the children and would void many hours of onerous travel for the children. The children would then remain in one familiar place, close to schools and friends while the parents did the moving. They would spend substantial time with each parent. I strongly urge the parties to consider this arrangement for the children’s sake pending final determination of these proceedings.
I am satisfied the orders set out at the beginning of these Reasons are in the best interests of L, T and R.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Sexton FM.
Associate: Skye Owen
Date: 2008
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