Pendelton & Reckert

Case [2021] FCCA 488

FEDERAL CIRCUIT COURT OF AUSTRALIA

Pendelton & Reckert [2021] FCCA 488

File number(s): BRC 15464 of 2020
Judgment of: JUDGE TONKIN
Date of judgment: 15 March 2021
Catchwords: FAMILY LAW – Children – interim parenting application – mother seeking to relocate child – interim change of school – whether in child’s best interests to relocate on an interim basis – application refused.  
Legislation: Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 60CG, 65D
Cases cited:

C & S [1998] FamCA 66

Goode & Goode (2006) FLC 93-286

Hornwood & Tyrell [2017] FCCA 1685

Marvel & Marvel[2010] FamCAFC 101

Morgan & Miles (2007) FLC 93 – 343

SS & AH [2010] FamCAFC 13

U v U [2002] HCA 36
Number of paragraphs: 75
Date of last submission/s: 25 February 2021
Date of hearing: 25 February 2021
Place: Brisbane
Counsel for the Applicant: Ms Pendergast
Solicitor for the Applicant: Littles Family Lawyers
Counsel for the Respondent: Mr Galloway
Solicitor for the Respondent: Holloway Jenkins

ORDERS

BRC 15464 of 2020
BETWEEN:

MR PENDELTON

Applicant
AND:

MS RECKERT

Respondent

ORDER MADE BY:

JUDGE TONKIN

DATE OF ORDER:

15 MARCH 2021

THE COURT ORDERS THAT:

Until further order:

1.The child X born in 2007 (“the child) shall live with the mother.

2.The child shall continue to reside in the Suburb B, Suburb C area or within the catchment area for D School.

3.The child shall continue to attend D School.

4.Commencing Thursday 29 April 2021 the child shall spend time with the father from Thursday 29 April 2021 until the following Tuesday 4 May 2021 and each alternate week thereafter during school terms.

School holidays

5.During mid – term school holidays the child shall spend time with his parents week about:

(a)In the years ending in an odd number with the father during the first half of the school holidays and with the mother in the second half of the school holidays; and

(b)In years ending in an even number with the mother during the first half of the school holidays with the father in the second half of the school holidays.

6.The first half of the school holidays is deemed to commence on the last day of the school term following the completion of school and the second half of the school holidays is deemed to conclude when the child is returned to school on the first day of the new school term with the midpoint between the first and second halves of the school holidays occurring at 10 a.m. on the Saturday following completion of the first half of the school holidays.

7.Unless otherwise agreed in writing the child shall spend the Christmas/summer school holidays with his parents on in a two week, two week, one week, one week arrangement in the pattern established pursuant to Order 5 (a) and (b) above.

8.Notwithstanding these orders the child shall spend Mother’s Day from 9 a.m. to 4.30p.m. with the mother and spend Father’s Day from 9 a.m. to 4.30 p.m. with the…

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AGLC
Pendelton & Reckert [2021] FCCA 488
Case
[2021] FCCA 488
Decision Date

CaseChat Overview and Summary

This matter concerned parenting orders for a child, X, born in 2007, between the applicant father, Mr Pendelton, and the respondent mother, Ms Reckert, before Tonkin J of the Federal Circuit and Family Court of Australia. The dispute centred on the mother's proposal to relocate with X to Town E, which was approximately 300 kilometres away, and to enrol X in a new school there. The child has special needs, including Pervasive Developmental Disorder, later modified to Attention Deficit Disorder, and struggles academically.

The court was required to determine what parenting orders were in the best interests of the child, X, particularly in light of the proposed relocation and change of schooling. Key issues included the suitability of the proposed new school, the child's own wishes regarding the move, the mother's accommodation arrangements in Town E, and the potential impact of such a significant change on X's well-being and academic progress, given his special needs.

Tonkin J applied the principles for determining children's best interests under the *Family Law Act 1975* (Cth), noting that these were interim proceedings and the evidence had not been tested. The court found that the mother's proposal involved a significant change for X, who did not wish to move or leave his familiar surroundings and friends. The court was not satisfied that the proposed new school in Town E was suitable for X's special needs, nor was there evidence of enrolment or a place being allocated. Furthermore, the mother's accommodation plans were uncertain, and there was no affidavit from her mother supporting the suggestion of residing with her. The court accepted the father's submission that there was insufficient evidence to support the relocation, particularly regarding how X would cope, with a family consultant's opinion that the child would be intensely unhappy and experience disruption.

The court made interim orders that the child X shall live with the mother and continue to reside in the Suburb B, Suburb C area and attend D School. X is to spend time with the father on alternate weeks during school terms, with specific arrangements for school holidays and special days. The court noted that previous orders made on 25 February 2021 would continue until 29 April 2021, and certain consent orders from December 2020 would remain in effect. The matter was adjourned for a final hearing in January 2022.

Orders

Orders of the court

BRC 15464 of 2020

BETWEEN:

MR PENDELTON

Applicant

AND:

MS RECKERT

Respondent

ORDER MADE BY:

JUDGE TONKIN

DATE OF ORDER:

15 MARCH 2021

THE COURT ORDERS THAT:

Until further order:

1. The child X born in 2007 (“the child) shall live with the mother.

2. The child shall continue to reside in the Suburb B, Suburb C area or within the catchment area for D School.

3. The child shall continue to attend D School.

4. Commencing Thursday 29 April 2021 the child shall spend time with the father from Thursday 29 April 2021 until the following Tuesday 4 May 2021 and each alternate week thereafter during school terms.

School holidays

5. During mid – term school holidays the child shall spend time with his parents week about:

(a) In the years ending in an odd number with the father during the first half of the school holidays and with the mother in the second half of the school holidays; and

(b) In years ending in an even number with the mother during the first half of the school holidays with the father in the second half of the school holidays.

6. The first half of the school holidays is deemed to commence on the last day of the school term following the completion of school and the second half of the school holidays is deemed to conclude when the child is returned to school on the first day of the new school term with the midpoint between the first and second halves of the school holidays occurring at 10 a.m. on the Saturday following completion of the first half of the school holidays.

7. Unless otherwise agreed in writing the child shall spend the Christmas/summer school holidays with his parents on in a two week, two week, one week, one week arrangement in the pattern established pursuant to Order 5 (a) and (b) above.

8. Notwithstanding these orders the child shall spend Mother’s Day from 9 a.m. to 4.30p.m. with the mother and spend Father’s Day from 9 a.m. to 4.30 p.m. with the father.

9. The orders made on 25 February 2021 continue until Thursday 29 April 2021.

10. Orders 1, 2, 6, 7, 8 and 9 made by Consent on 7 December 2020 as amended on 21 December 2020 continue with full force and effect.

11. The matter is adjourned for final hearing for 2 days on a date to be advised in January 2022 and prior to the commencement of the 2022 school year.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Subsection 60CC (3) of the Act sets out a number of matters the Court is required to take into consideration when determining what parenting orders are in a child’s best interests. Relevant considerations are addressed below. BACKGROUND The parties met in 2002. The father is now 46 and the mother 49. X was born in 2007 and in 2008 the parties moved to Canberra due to the father’s employment. They separated in 2009 when X was 14 months old and the mother returned to Brisbane with X. They reconciled in Brisbane a few months later and separated on a final basis in May 2011 when X was 3 and a half. The father has re-partnered with Ms G. They commenced a relationship in mid - 2017 and commenced living together in mid 2019. They own a home in Suburb B and both work full time in Brisbane City the father as a professional and Ms G as a manager in Suburb H. The mother takes no issue with the father’s current partner. The father’s parents live in Town J and he spends time with them regularly. The mother currently lives in rental accommodation at Suburb C with X. She works full time as a Manager in Retail in Brisbane City, the Region K and the Region L. She has had a close relationship with both parents however her father died several years ago. She wishes to move closer to her mother who lives in Town E. It is common ground that X is a child with special needs. His development is delayed and historically he was later than others in meeting his milestones. He has been diagnosed with Pervasive Developmental Disorder later modified to Attention Deficit Disorder. He was accepted into an Early Childhood Development Program and made significant strides there. He attends upon a paediatrician each four to five months and both parents attend. He continues to receive educational support at school and struggles academically. Following separation in May 2011 the mother primarily cared for the child returning to work once the child commenced school while the father worked full time with the child spending every weekend with his father from Friday to Monday. The mother advised the report writer that she was not happy about spending no weekend time with the child however she said the father insisted on this displaying controlling behaviour and she had little option but to agree. The family consultant noted that the father agreed that the mother told him that every second weekend was the “normal” arrangement for the child but “he refused to accept this minimal level of involvement.” The father has always done all the pick - ups and drop offs for the child alleging that the mother told him that he had to be responsible for “all the driving” if he wanted to spend time with the child. The family consultant observed that “there was some level of ongoing parental conflict throughout the nine years (post separation)” noting that the mother advised “she always needed to accede to the father’s stance”. The mother claimed that the father refused to contribute towards the payment of the child’s school fees stating “she needed to pay since he (the child) was with her during the week”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Counsel noted that the father had previously sought a change of schooling for the child which he now abandoned. He proposed that the mother’s third weekend should commence on 13 March 2021 and each third weekend thereafter during term time. Counsel for the father submitted that there was insufficient evidence before the Court to determine that the relocation was in the child’s best interests.CONCLUSION In this matter I am guided by the principles set out by the Full Court of the Family Court. These are interim proceedings and the evidence has not been tested. The mother’s proposal represents a significant change for the child. She proposes that she immediately relocate to Town E and enrol the child in a new school. Her mother resides in that area. She intends to purchase a home there. There is a great level of uncertainty regarding the mother’s proposal. As I understand from her affidavit filed on 23 February 2021 she does not have accommodation in Town E. She is renting a property in Suburb C with the lease soon to expire. I am uncertain where she will live in the immediate future and find that this issue was not dealt with satisfactorily by the mother. It is likely should she be permitted to relocate on an interim basis she may move into her mother’s home. Her mother was not on affidavit to support this. X does not want to move and does not want to leave his familiar surroundings including the many friends he has at school and in the current area. The mother proposed that N School in Town O “would be the best option for X schooling”. There is no evidence before me that the child is enrolled in that school nor that a place has been allocated for him. It is unclear whether that school is suitable to cater for X’s special needs. The child does not wish to change schools. An important consideration for him is that he will not know anyone at that school. His adjustment to High School has been less difficult than anticipated as many of his friends from primary school have also moved to D School providing him with support. In my view it is not in his interests to remove him from his current school without a thorough investigation of the competing options for schooling for the child. I note that the father at one point sought to change X’s school but has now abandoned that application. I am not satisfied I have sufficient evidence before me regarding the suitability of an alternate school for X in Town E. I accept the submission from the father’s Counsel that it is unclear how X will cope with the move no report having been provided by his treating paediatrician. The family consultant believed the child would be “intensely unhappy for an extended period and his feelings of disruption may manifest in struggling further with school work and other aspects of life”. I need to be confident that such a significant change for the child will not have a negative impact on his ability to function and manage daily activities including schooling.

Ratio Decidendi

Legal Principle Established

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