PENGLETON & FARAM

[2019] FCCA 277

FEDERAL CIRCUIT COURT OF AUSTRALIA

PENGLETON & FARAM [2019] FCCA 277

Catchwords:
FAMILY LAW – Parenting – school issue amounting to a relocation.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA

Applicant: MR PENGLETON

Respondent: MS FARAM

File Number: BRC 11319 of 2017

Judgment of: Judge Howard

Hearing date: 29 January 2019

Date of Last Submission: 29 January 2019

Delivered at: Brisbane

Delivered on: 12 February 2019

REPRESENTATION

Counsel for the Applicant: Mr Foley

Solicitors for the Applicant: Zande Law

The Respondent attending as a self-represented litigant.

ORDERS

1. That each party shall provide a copy of a proposed Final Order to each other party by no later than 4:00pm on 14 February 2019.

2. That the parties shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and shall send a copy of same to the Court by no later than 4:00pm on 16 February 2019.

3. That in the event the parties are unable to reach an agreed position in relation to the wording of the Final Order (and send a copy of same to the Court) within the time frame stated in paragraph 2 – each party shall forward a copy of their proposed wording of the Final Order to [email protected] by no later than 4:00pm on 18 February 2019.

4. That the Court shall issue a Final Order from Chambers or re-list the matter for Mention for the finalisation of the wording of the Final Orders, whichever is appropriate upon review of the drafts forwarded to the Court pursuant to the abovementioned orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 11319 of 2017

MR PENGLETON

Applicant

And

MS FARAM

Respondent

REASONS FOR JUDGMENT

Background

1. The Applicant father is Mr Pengleton.  He was born on …1980. 

2. The Respondent mother is Ms Faram.  She was born on … 1976. 

3. The parties commenced a relationship in 2011.  They started living together in September 2012. 

4. The child, who is the subject of these proceedings, [X] was born on … 2013.  The child was born at the Town O Hospital.  The parties separated on a final basis in January 2014. 

5. The parties have not been able to agree on final parenting orders in relation to [X]. 

6. The father lives in the suburb of Suburb B, Brisbane.

7. The mother lives in Town C, Queensland.  The driving time between the father’s residence in Suburb B and the mother’s residence in Town C is approximately one and a half to two hours (one-way).

8. After the parties separated on a final basis they reached an agreement whereby [X] commenced living in a week about shared care arrangement from the time that [X] was six months old.  This is quite an extraordinary achievement by these parents.  It is very rarely the case that parents of such a young child are able to agree and are able to facilitate a week about shared care arrangement.  I will return to this point shortly.

9. Indeed, the week about shared care arrangement was in place without the need for any Court order.

10. The mother moved to live in the town of Town C in 2016.  The primary reason for the mother moving to that town is because her own parents live in Town C.  Her father is suffering from P Disease.  The mother went there to support her father and her mother.  In addition, and very importantly, the mother in this case derives a significant emotional and other support from the maternal grandmother. 

11. The week about shared care arrangement continued for the child, [X], even after the mother moved to the town of Town C.

12. As the child approached prep school age, a disagreement between the parents became evident for the first time.  With the commencement of prep the week about shared care arrangement could no longer continue unless the parents were living in close proximity. 

13. A mediation took place during 2017. The matter did not settle. That was in July 2017 when a section 60I certificate was issued under the Family Law Act 1975 (Cth) (“the Act”).

14. Notwithstanding the fact that the parties had not reached an agreement, proceedings were not filed in the Federal Circuit Court of Australia until the father filed an Initiating Application on 26 October 2017.  The mother filed a Response on 4 December 2017.  Indeed, the first return date before the Court was 4 December 2017.  At that mention of the matter on the first return date the parents were informed that it would not be possible for the matter to be dealt with before the commencement of school in 2018.  It was completely unrealistic of the father to file an application in late October 2017 and expect to obtain a determination of the kind required prior to the commencement of the 2018 school year.  That message was indicated very clearly too both parents in December 2017 when the matter was before the Court. 

15. At that point in time both parents told the Court that they wanted [X] to commence prep in 2018.  The father was represented by a lawyer. 

16. It was not merely the situation that an Interim Order could have been made on the choice of schooling.  The mother wanted the child to attend Town C State School and the father wanted the child to attend Suburb K State School.  In truth, the matter is a relocation case.  The mother wants to remain living in the Town C region.  The father wants to remain living at Suburb B.  It was never just about “the school”. 

17. The parties were told by the Court on 4 December 2017 that, given that neither party wished to move closer to the other’s residence, then, obviously, the week about shared care arrangement would be coming to an end. 

18. At that point in time, a lack of trust emerged between the two parents.  The mother enrolled the child in the school at Town C.  The father enrolled the child in the school at Suburb K.  In paragraph 47 of the father’s affidavit filed 4 January 2019 he states that he “tentatively enrolled [X] into Suburb K State School”.  I do not accept that the enrolment was tentative.  Also, in paragraph 47 of his trial affidavit, the father maintained that after no orders were made by the Court on the first return date in December 2017 – he withdrew [X]’s enrolment.  I do not accept that evidence.  There is clear evidence to the contrary.  In a text message dated 6 January 2018 the father stated to the mother: -

    “It’s certainly not in [X]’s best interest to attend prep in Town C.  Education is certainly paramount and I have enrolled her in school already.”

19. A copy of that text message is included in the father’s own trial affidavit at annexure GDP – 10. 

20. Furthermore, on 22 January 2018 – the first day of school for that year – the mother received a text message from the Suburb K State School advising the mother that the child, [X], had not attended school (at Suburb K) that day.  Clearly, therefore, the father had not withdrawn the child’s enrolment at Suburb K State School. 

21. I have had the opportunity, of course, to listen to the mother’s evidence, the father’s evidence and had regard to the affidavits and annexures and the other evidence in the case.  I have come to the conclusion that if a changeover had taken place in January 2018 and the child had moved from the mother’s residence to the father’s residence that, it is highly likely, that the father would have placed the child into Suburb K State School for the first day of school for 2018.  That much is clear enough from the father’s text messages which form part of GDP – 10.  The father stated: -

    “There will be a changeover.

    It’s certainly not in [X]’s best interest to attend prep in Town C.  Education is certainly paramount and I have enrolled her in school already.” 

22. The relevant information conveyed by the father to the mother in those two text messages is as follows:-

    i)the father wanted a changeover to take place in January 2018;

    ii)the father did not consider that it was in the child’s best interests to attend prep in Town C; and

    iii)the father had enrolled the child at Suburb K State School. 

23. On the available evidence the inference I draw is that the father was going to place the child into Suburb K State School in January 2018, if a changeover had occurred. 

24. I consider that it is disingenuous of the father to criticise the mother for “holding over” the child and placing her into Town C State School.  I have come to the conclusion, on the available evidence and in particular having had regard to hearing the father’s evidence in the witness box that if the child had been with the father on the first day of school in 2018 – that [X] would have been attending Suburb K State School. 

25. It is unfortunate that the parents did not bring their dispute to the Court at an earlier point in time.  The maternal grandmother was being brutally honest when she told the family report writer – in relation to the schooling issue – “we got in first”.  It was a race between these parents.  There was a stand-off between the parents.  Unfortunately, the upshot of all that was that [X] did not get to see her father for some months. 

26. My observations of the father and the mother in the witness box lead me to conclude that both of these parents are obstinate in their views. 

27. The father maintains that his preferred position – once there was no Court order made in late 2017 – was for the child’s commencement of prep to be delayed by one year.  His assertion in that regard is rejected by the Court.  His assertion in that regard is contrary to his intentions as displayed in his text messages of 6 January 2018 (quoted above).

28. Furthermore, the father’s conduct on 22 January 2018 was particularly unfortunate.  I’m sure he acknowledges that in hindsight.  In the mother’s trial affidavit (filed 5 September 2018) there is contained in the annexures a copy of a letter signed by the Principal of Town C State School, Ms P.  The letter is dated 29 August 2018.  The letter reads, in part, as follows: -

    “On 22 January, Mr Pengleton came to the school asking to see the principal.  I spoke with Mr Pengleton assuring him that [X] was safe and enrolled at this school.  He asked that [X]’s enrolment be cancelled.  I again explained that I was not going to cancel the enrolment as explained in my email response.  Mr Pengleton told me that he was going to take [X] with him.  I said that the school process was to make a courtesy call to the other parent, Ms Faram, which I did.

    • Mr Pengleton became distressed and proceeded to walk around the school searching for [X]’s classroom.  I followed Mr Pengleton.  In that time, school staff had moved [X] out of her new prep classroom to the learning support room for her safety and that of other children and her mother Ms Faram had come to the school.  By this time, [X] was quite distressed and crying.

    • Both parents discussed the situation outside the learning support room.  Mr Pengleton was telling Ms Faram that he was taking [X] today.  Ms Faram was responding that this was not a good idea and not in [X]’s best interests.  I asked both parents to come to my office and discuss this, but they continued to discuss the situation in school grounds outside of the learning support room.  I left to seek advice about what was the best course of action through our Regional School Operations Team.  I was advised to request that both parents leave school grounds as this was disruptive to the school in general.  By the time I returned both parents had left school grounds and were seen continuing the discussion near their cars outside school grounds.

    • [X] asked to go home and went home with her mother.

    • [X] has continued with her enrolment in prep at Town C State School.”

29. This evidence from Ms P confirms my view that both parents were trying to insist that their preferred outcome prevailed.  It is very unfortunate that Mr Pengleton became distressed and proceeded to walk around the school, searching for [X]’s classroom.  The whole incident clearly upset the child.

30. The father’s determined approach on 22 January 2018 confirms my view that, if the child had been with him prior to 22 January 2018 that he would have taken the child to her first day of school at Suburb K.  The father was determined to get his way.  The mother was determined to get her way. 

31. In section 60CA of the Family Law Act 1975 it states: -

    In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

32. Section 60CC of the Act sets out how it is that a Court is to determine what is in the child’s best interest. Section 60CC(2) and (2A) state: -

    Primary considerations

    (2)  The primary considerations are:

    (a)  the benefit to the child of having a meaningful relationship with both of the child’s parents; and

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

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

1. In the circumstances of this case the child does have a loving and meaningful relationship with both of her parents.  There is no evidence of any harm or neglect in this family. 

2. In section 60CC(3) the additional considerations are listed.

3. Section 60CC(3)(a) – the child has expressed a preference to live with the mother – but the child is very young and her views cannot really be given any weight.

4. In relation to section 60CC(3)(b) – as noted, the child has a close and loving relationship with both of her parents. The child also has a loving relationship with her sibling [L] (the mother’s two-year-old child). [X] is also very close to her maternal grandparents – in particular her maternal grandmother. [X] sees her maternal grandmother every second day in the town of Town C. The maternal grandmother cares for [X] (and [L]) at least one day each week.

5. The child also has a loving relationship with her brother [M] (the father’s child).  The child also has a good relationship with the father’s partner (Ms J) and Ms J’s children, [Q] and [R].

6. In relation to section 60CC(3)(c) – each parent has taken the opportunity to participate in making decisions about long-term issues for the child. Unfortunately they were not able to reach an agreement in relation to where the child should live upon the commencement of the prep year. Both parents have spent as much time as they can with the child and communicated very regularly of the child.

7. Each parent has fulfilled their obligation to maintain the child (section 60CC(3)(ca)).

8. As to section 60CC(3)(d) – it would amount to a significant change for the child if the primary residence was moved from Town C (with her mother) to Suburb B (with her father). The child would also see her maternal grandparents less than she already does at the moment. The same goes for her brother, [L].

9. There are already practical difficulties and expenses for this child spending time with her parents.  This is because the parents live approximately one hour and forty minutes apart.  But, of course, it is not an impossible situation. 

10. I have no doubt that both parents have the capacity to provide for the child’s emotional and intellectual needs (section 60CC(3)(f)).

11. I have had regard to the young age of the child (60CC(3)(g)).

12. 60CC(3)(h) it is not relevant – at least it has not been drawn my attention. 

13. Both parents have displayed an excellent attitude towards the child to the responsibilities of parenthood.

14. Section 60CC(3)(j) and (k) relating to family violence are not applicable.

15. As to section 60CC(3)(l) – it is not especially applicable in this case.

16. 60CC(3)(m) relates to any other fact or circumstances that the Court thinks is relevant.  These are addressed below.

17. The case for the father is, essentially, that the mother has not promoted the child’s relationship with the father.  However, a proper overview of all of the evidence relating to this child (from the time of her birth to the present) reveals that, in fact, the opposite is true.  The mother has indeed promoted the child’s relationship with the father.  My views in this regard are confirmed by the following evidence.

18. Without any Court order, and from the very young age of six months – this child lived in a week about shared care arrangement between the parents.  The mother maintained this arrangement for four years – even after she had moved to Town C.  I accept the mother’s evidence that, on occasions, the situation was becoming quite trying because the father would seek to vary arrangements, depending upon [M]’s circumstances.  [M] does not live permanently in the household of the father.  But the point is – that the mother facilitated this week about shared care arrangement.  Clearly, this mother understood – and continues to understand – the importance of the father’s role in the child’s life.  The fact that a dispute arose between the parents as the child approached school-age does not diminish the fact that the mother values the father’s role in the life of the child.  The mother understands that the child’s relationship with the father is extremely important and, from the time of the child’s birth (until the current dispute arose) the mother facilitated equal time arrangement. 

19. As noted earlier, equal time shared care arrangements are very rarely seen in this jurisdiction for children as young as six months old. 

20. I also note that the mother and the father moved to Suburb B originally in order to facilitate the father’s relationship with his child, [M].  [M] must have been living in that general vicinity.  The mother  (in this case) was not from the Suburb B area.  The mother did not particularly want to move to Suburb B.  But, I infer, could see the benefit to the child, [M] and having a relationship with his father.  That evidence is consistent with the view that I have formed in relation to the mother and her understanding of the important role of fathers – and in particular this father – in the life of his children.

21. During the period of heightened mistrust between the parents, the child only saw the father on one occasion.  The child saw the father in December 2017.  Then the dispute arose about a changeover in January 2018.  I have already made significant reference to the circumstances surrounding that dispute.  The child did not see the father again until March 2018.  Then the parents saw the family report writer in April 2018.  Following those interviews an alternative weekend arrangement was implemented by the parents.  That was not done by way of a Court order.  The mother facilitated the alternative weekend time with the father in the absence of a Court order. 

22. As noted, the mother was convinced that if a changeover had occurred in or around January 2018 then the father would have held onto the child.  Her view in that regard was probably reinforced because (according to the family report writer in paragraph 100 – Exhibit 3) the father did not complete certain paperwork requested by the mother – presumably some form of undertaking to confirm that he would return the child after any visit. 

23. In paragraph 101 of the family report it is stated: -

    101. “It is noted that Ms Faram did not identify any issues with [X] not seeing Mr Pengleton during this time, stating “she hasn’t said anything and I haven’t noticed anything”.  She advised she had continued to provide photos and text updates to Mr Pengleton, but in the writer’s opinion this does not assist with providing [X] an opportunity to maintain her relationship with her father.  Overall, the decision to proceed with enrolling [X] into Prep, subsequently ceasing visits, and the lack of acknowledgement of the impact of this on [X]’s relationship with Mr Pengleton suggests that Ms Faram may not recognise, or may be minimising, the importance of [X]’s relationship with Mr Pengleton.”

1. As to the mother using the words, “she [X] hasn’t said anything and I haven’t noticed anything” – about [X] not seeing the father for a period of time – I note the following.  I have come to the conclusion that the mother is quite blunt and direct in her manner of speaking.  That was certainly the impression I was left with after listening to her in the witness box.  The family report writer stated that the mother “may not recognise or may be minimising the importance of [X]’s relationship with Mr Pengleton”.  The family report writer identified the mother’s decision to proceed with enrolling [X] into prep; the mother subsequently ceasing visits and the lack of acknowledgement of the impact of this on [X]’s relationship with the father.  For the reasons that I have stated I do not accept that the mother has failed to recognise the importance of the child’s relationship with the father.  Furthermore, I do not accept that the mother has minimised the importance of the child’s relationship with the father.  The conclusion I have reached is that the mother’s decision to enrol [X] into prep at Town C came about because the child was, at that stage, with the mother.  The conclusion I have reached is that if the child was with the father at the beginning of 2018 – the father would have placed the child into Suburb K State School on the first day of school in 2018 – in accordance with his stated intention and his enrolment of the child in that school.  It is true that the mother subsequently ceased the child’s visits with the father.  This was during the period of heightened mistrust between the parents.  As noted by the report writer, the father would not complete paperwork as requested by the mother.  A parent (in this case the mother) does not go from facilitating a week about shared care arrangement for four years to, suddenly, not understanding the importance of [X]’s relationship with her father.  Of course the mother understands the importance of that relationship.  Her actions over many, many years confirm this conclusion.  It is unfortunate that a dispute arose between these parents.  But it is a fact of life. 

2. I therefore reject the argument put forward on behalf of the father that the mother has minimised the importance of the child’s relationship with the father.  There was week about time; a dispute arose – there was a cessation in the time and then time resumed. 

3. It is very noteworthy that the very first parenting order made in this case was not made until October 2018.  That was an Interim Order made which formalised the informal arrangement that had been operating since April 2018 – namely that the child live with the mother and spend alternate weekends with the father. 

4. For the reasons stated I do not accept that the mother, by enrolling the child into prep and ceasing the child’s visits with the father displayed a lack of insight.  I have already explained my reasoning in that regard.  If I am wrong in that regard then – perhaps it could be said that the mother suffered from a temporary lack of insight (between January and April 2018).  After the family report interview regular alternate weekend time commenced – in the absence of a Court order. 

5. Furthermore, I note the evidence of the family report writer at page 67 of the transcript.  The fact of the matter is that, when the family interviews took place in April 2018 the child had only seen the father once since December 2017.  That visit occurred in March 2018.  The observations by the report writer clearly showed that the child had a good rapport and had a close and loving relationship with not only her father but her father’s partner and the other children living in the father’s household.  The family report writer stated that, that evidence “certainly would suggest that there was not a negative influence ‘by the mother’ in relation to the child’s relationship with the father”.  That is an understatement in my view.  It indicates to the Court that the mother must have been continuing to speak positively about the father within her own household.  That is the inference that I draw from the available evidence.  With such a young child I do not see that any other conclusion is possible.  If my assessment in that regard is incorrect, it will not make any difference whatsoever to the conclusion that I have reached.  I do not rely to any significant degree upon this finding. 

6. It was said that the mother moved houses many times post separation with the father.  It is difficult to be critical of the mother in this regard.  The mother had moved to Suburb B with the father – in circumstances where she did not especially want to live in that suburb.  She did so to facilitate the father’s relationship with his child, [M].  The fact that the mother’s life did not settle down as quickly as the father’s life did – post separation – should not be held against the mother.  The mother moved to Town C in 2016.  She has remained living there in the Town C ever since.  The mother has purchased a five acre block of land and intends building a house on that in Town H – near to Town C.  I accept this evidence from the mother.  The mother now has some part time work in Town C.  The mother derives significant emotional support from her own mother in Town C.  This is a significant point. 

7. As further evidence of the mother’s understanding of the importance of fathers in the lives of children – I note that the mother facilitates time between [L] and his father, Mr G. 

8. I consider that stability has returned to the mother’s life and domestic and living circumstances.  The mother has signed a 12 month lease at S Street in Town C. 

9. The child is very well settled in the school of Town C.  The report cards are glowing.  It is true that the child is resilient.  The child has formed friendships in her school and these are very important to someone so young. 

10. The report writer says that, if the Court considered it in the child’s best interests to move the child’s residence to the father – the child (with the support of both parents) would cope.  That is probably correct.  However, the family report writer also noted in her evidence in Court that such a move would be significant to the child.   The conclusion I have reached is that it would be a very significant adjustment for the child.  Based on the available evidence – the conclusion I have reached is that a change of residence and a change of school would be a major disruption for this little girl.  The child is well settled in her current living arrangement.  The child is well settled in her current schooling arrangement. 

11. The evidence discloses that if the child moves to live with the father then the child’s day will commence at 6:00am.  The father lives in Suburb B but works in Suburb N, Brisbane.  Ms J also works full-time.  The older children living in that household, of course, head off to school.  [M] goes to Suburb K State School but is a few years older than [X], of course.  They would not be in the same class.  It would be necessary for the child to be placed into before school care and, it seems, after school care.  The family report writer said:-

    “That could certainly be a big day for a very young child, and if she’s not used to it as well, that could take some time to adjust…. I think it would be another factor, though, in terms of the significance of that change and it being another…difference for her to have to adjust to.”  (Note pages 69 and 70 of the transcript of 29 January 2019).

12. It would indeed be a big day for a very young child.  I understand that many children have to attend before and after school care but the Court is currently considering where the best interests lie for young [X] – not any other child.

Conclusion

1. As noted, I have rejected the argument that the mother does not value [X]’s relationship with the father.  I have rejected the argument that the mother has minimised [X]’s relationship with the father and I have rejected the argument that the mother does not understand the importance of [X]’s relationship with the father. 

2. Taking into account all of the reasons referred to herein, including the reasons contained in paragraphs 63, 64, 65, 66 and 67 – I have come to the conclusion that it will be in the child’s best interests to remain living in the residence of her mother in Town C in the Town C region.  It will also be in the best interests of the child to spend alternate weekends with the father.

3. In the unlikely event that the mother moves much closer to the father’s current residence, then there should be an alternative order for a week about shared care arrangement. 

4. In relation to section 61DA – there will be an order for equal shared parental responsibility.

5. As to equal time – (s.65DAA) as matters currently stand it is not reasonably practicable.  The parents live too far apart.  If the parties lived closer together it would be reasonably practicable and it would be in the child’s best interests. 

6. In addition, there should be half school holidays with each parent and orders in relation to special days.

7. The parties should now forward to the Court within fourteen (14) days an order to reflect the reasons for judgment. 

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Howard

Date:  12 February 2019