Petros and Halbach

[2020] FCCA 2566

FEDERAL CIRCUIT COURT OF AUSTRALIA

PETROS & HALBACH [2020] FCCA 2566

Catchwords:
FAMILY LAW – Parenting – application concerning three children who are 10, 8 and 5 years old – where the parties dispute which school the children should attend – where the current and proposed schools are a significant distance from the parties’ homes – where the parties contest the time the children spend with them – s 11F child inclusive conference required to seek the elder children’s’ views if any.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR PETROS

Respondent: MS HALBACH

File Number: ADC 1366 of 2020

Judgment of: Judge Young

Hearing date: 25 August 2020

Date of Last Submission: 25 August 2020

Delivered at: Darwin

Delivered on: 25 August 2020

REPRESENTATION

Counsel for the Applicant: Mr Robinson

Solicitors for the Applicant: L.G. Lawyers

Counsel for the Respondent: Mr Childs

Solicitors for the Respondent: Matthew Mitchell Solicitors

ORDERS

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the children X born in 2009, Y born in 2011 and Z born in 2015 (“the children”) live with the each parent as follows:

   (a)With the father for 8 nights from after school Thursday until before school on Friday in the following week; and

   (b)With the mother for 6 nights from after school on Friday until before school Thursday in the following week with the father to collect the children from school each Thursday.

2. That pursuant to s.11F of the Family Law Act 1975, the parties and the children X born in 2009 and Y born in 2011 do attend a reportable child inclusive conference with a Family Consultant provided by the Child Dispute Services of the Federal Circuit Court of Australia, Adelaide on 10 December 2020 at 9.30am, with the parties to telephone the Case Coordinator Children Dispute Services on 1300 352 000 to confirm their attendance NOTNG that only the two older children attend the child inclusive conference.

3. That following thereof the Family Consultant provide a brief advice to the Court as to issues on which the parties agree, issues that remain in dispute and any recommendations as to interim or procedural orders.

4. That the matter be adjourned to 14 December 2020 at 10.30am NT time for interim hearing in relation to which school the older children attend.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADC 1366 of 2020

MR PETROS

Applicant

And

MS HALBACH

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting case concerning three children: X, who is 10 and three quarters, Y, who is eight and 11 months and Z, who is five.  At present, these children are living four nights a week with their father and three nights a week with their mother.  The father lives in City B and the mother lives in Suburb C.  The two older children, I am not sure if Z has commenced school yet, but in any event the two older children are attending D Primary School. 

3. It is obvious, I think, that D Primary School is a long way from either home.  According to the Google Maps printout that my deputy associate has made, and which I have sent to the parties, from the mother’s home at Suburb E to D School is 49 minutes driving time.  From City B, the father’s home, to D Primary School is 55 minutes driving time.  I would have no trouble considering that as an onerous return journey, twice a day.  I would consider that unsustainable, frankly.  I think there is a strong argument for changing the primary school that the children attend. 

4. Of course, the matter was set down for interim hearing in relation to that issue today, with the father proposing F Primary School, which does appear to be approximately halfway between his home and the mother’s home, and the mother proposing C Primary School which is very close to her home.  It looks to be a few minutes’ drive at most.  Without really expressing a concluded view, I have told the parties that it is very difficult for me, and I have read the material the parties have attached, to form a view about which is the better school.  I do not think that can be done.  I will probably make the decision on the basis of convenience to the parties. 

5. Now, another factor is that I think, probably through error on my part or in some other way, the order that was made on 25 May 2020 was for a child dispute conference.  It may be that I thought a family consultant speaking to these parties could come up with something useful on the question of schools.  I think, without meaning to be critical of the author of the report or the memorandum, it has provided me with no assistance at all, basically, about the question of school.  As the family consultant points out, really, there ought to have been a child inclusive conference memorandum.  I accept that and I accept that that is what I ought to have done. 

6. I propose to make an order for a child inclusive conference in relation to the older two children, X and Y only, so we might ascertain their wishes about where they reside and if possible where they wish to go to school.  I do not propose to decide that school issue until I have heard what the children’s wishes are, if any.  It may be that at almost 11 and almost nine years of age, the children do not have any particular view about school or maybe they do not even wish to express a view about school.  I do not know. 

7. But particularly given that both the elder children would be changing school, and in the case of X for only one year before she commenced high school, it occurs to me that she may some views, particularly as part of the argument that the parties put forward is that both primary schools are feeder schools for particular high schools and according to the parties, the particular high schools have different characteristics or attributes which might make them appropriate.  I do not know whether the elder two children have a view, or indeed, wish to express a view, or are capable of forming a view about most things.  They might not have enough information but I think I should seek their views. 

8. The other matter that was mentioned, or that was the subject of the interim hearing, was how many nights a week the children spend with each parent.  Presently, they are on a four nights with the father, three nights with the mother rotation which involves quite a lot of moving around. 

9. I think it is desirable that that arrangement be regularised in some way or at least changed to make it more practical and sustainable.  In the mother’s material, she is seeking a week about arrangement, that is, seven nights a fortnight with each parent.  The father has acknowledged that there needs to be a change, but he has put forward an arrangement of six and eight nights.  The difference is insignificant but as it is contested, and it is not an agreed position. Mr Robinson tells me that because counsel who was briefed until late this morning was suddenly called away due to a family emergency he has picked up the brief and he says that he does not think he has had sufficient time to do it justice.  I consider that I ought not to make an order other than the minimum order there. 

10. I propose to make an order that the children live with each parent and spend eight nights with the father and six nights with the mother.  The time will begin with the mother from after school on Friday and run through to the commencement of school Thursday and the father can collect the children from school on Thursday.  That will be the order until further order.  I may revisit that on the next date.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 11 September 2020