Ralston and Garcia and Anor

[2018] FCCA 2639

FEDERAL CIRCUIT COURT OF AUSTRALIA

RALSTON & GARCIA & ANOR [2018] FCCA 2639

Catchwords:
FAMILY LAW – Parenting – schooling – inconvenience of travel. 

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR RALSTON

First Respondent: MS GARCIA

Second Respondent: MR BRUCE

File Number: DNC 280 of 2011

Judgment of: Judge Young

Hearing date: 30 August 2018

Date of Last Submission: 30 August 2018

Delivered at: Darwin

Delivered on: 30 August 2018

REPRESENTATION

Counsel for the Applicant: Ms Dargan

Solicitors for the Applicant: Withnalls Lawyers

Counsel for the Respondents: Ms Srinivas

Solicitors for the Respondent: Northern Territory Legal Aid Commission

ORDERS

1. That the child [X] born 2010 continue to attend School 1 Primary School.

2. That all extant applications be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 280 of 2011

MR RALSTON

Applicant

And

MS GARCIA

First Respondent

MR BRUCE

Second 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 matter concerning a child, [X], who is seven years old.  On 27 June 2018, the parties consented to orders that [X]should live with each parent on an equal-time basis, beginning in July 2018.  As I understand it, those orders have now been given effect.

3. The issue that the parties cannot agree on is where [X] should go to school.  Presently she attends School 1 Primary School.  She has attended School 1 Primary School for all of her school career, albeit a short school career, for the past three years, transition, year 1, year 2. She is presently in year 2.

4. She was initially put in that school because her older half-sister, [A], was also attending that school. [A] who is 11 years old, and who is the daughter of the mother by a previous relationship, has now, pursuant to her mother’s wishes, moved school, to School 2 Primary School, which is a suburb of Town A, which is about 20 kilometres outside of the Darwin area.

5. The mother wants [X] to attend School 2 Primary School, which is closer to her home and the father wants [X] to remain at School 2 Primary School.

6. Some brief background is relevant.  The parties have a long litigation history, stretching back at least to 2012, when orders were made refusing to permit the mother to relocate away from Darwin.  There was an appeal, a rehearing, and, as I understand it, similar orders.

7. In 2013, the mother did leave the Northern Territory, and went to live, as I understand it, in Queensland.  [X] was left in the care of her father and, as I read the material, it seems that [X], for a period, was in the care of the Minister. She was then placed in the care of her father.  In any event, she has lived with her father for many years.

8. The mother has returned to Darwin in more recent times and resumed a more regular or frequent relationship with [X]. That is the background to the consent orders made recently.

9. The mother argues that there are the following reasons for a change of school:  that [A] is attending School 2 Primary School and it is agreed between the parties that [X] and [A] have a very close relationship as sisters.  Of course, [A] will be attending School 3 Middle School at the end of this year, so the period in which [A] and [X] might be going to the same school is likely to be only another three months or so.  So I do not consider that a factor of any particular weight.

10. The mother also says that the maternal cousins, who are aged about eight – a year older than [X]; seven – [X]’s age; and slightly younger than [X], perhaps 5, also attend that school.  There was no real evidence about the nature of the relationship or independent evidence about the nature of the relationship between [X] and her cousins.  The father admitted freely that there was a very close relationship between [X] and [A], but he said he was not aware of the relationship, or the nature of the relationship, between [X] and her cousins.  Similarly, the family consultant, who was cross-examined, said that he had no doubt there was a close relationship between [X] and [A] but he could not comment on the nature of the relationship between the cousins.

11. Another factor that was raised by the mother was that there are some significant transport issues.  While she continues to live in Suburb A, near School 2 Primary School, the distance to School 2 Primary School from her home is somewhat less than 10 minutes, whereas the travelling time to School 1 is in the region of 25 minutes.  Mr Garcia, who is the mother’s husband, said that it is a tiring journey for [X] to School 1, albeit it happens only one out of two weeks.  I think it must be conceded that that is likely to be a reasonably tiring journey and if there is 20 minutes’ travelling to school and from school, that is 40 minutes a day.  I do not doubt that there is some inconvenience.

12. The inconvenience is exacerbated because, of course, the mother has one child, [A], going to another school and she and Mr Garcia have two younger children, I think approximately three and 18 months who also need, on occasion, to be transported to day care, particularly when the mother assists Mr Garcia in his business.  Mr Garcia is the one who has usually delivered [A] to School 1 Primary School and he does so as part of his journey to work. He has premises at Suburb B, so he undertakes the travel.  The fact that he has premises in Suburb B, and School 1 is not such a great departure on his journey, I think, makes the inconvenience of the travel less than might otherwise be expected.

13. The father, on the other hand, says – and this is not contested – that [X] has displayed behavioural problems since she began at school.  Those behavioural problems are not the subject of any diagnosis, or anything as formal as that, although [X] has been visiting a psychologist this year at least.  The substance of the behaviours appears to be emotional dysregulation, anger, hitting out at other students, and sometimes teachers.

14. Apparently that behaviour, which has been present since [X] began school, was exacerbated last year.  Just why that is unknown.  Whether it is connected to the fact of litigation, the fact of a change in her relationships, her mother being present in Darwin after a period of absence is simply speculation.  But the fact is that she has displayed very challenging behaviours and she has been, both late last year and early this year, suspended from school for short periods because of her behaviour.

15. She has been provided with extra support from the Education Department for, as is described in the materials, “extreme behaviour”, and that has apparently helped, because the reports of her behaviour this year are that her behaviour has improved at School 1.  I might say, the school reports say that she is a bright student, and academically at least average, and probably above average, only held back by some of her troubling behaviours.

16. There are other aspects of her behaviours that have been noted.  She appears to be somewhat isolated from other students.  There is some indication that she has friends, but no close friends.  Sometimes she chooses to play by herself in the playground, and so on.

17. The father is of the view that given these challenging behaviours, perhaps indicative of a somewhat emotionally troubled child, that it is by far the best thing for her that she continues at a school where she is supported – and that is not in contest – and where special supports, such as the “extreme behaviours” program, which involved extra funding for a teacher or an assistant to be present, were important to her, and that should be continued.

18. That was generally a view supported by the family consultant who said that, in his assessment, having spoken to the school, the parents and [X], that it was desirable that she remain at her present school in order to achieve consistency.  His particular view was that, in encouraging the child to learn different behaviours or more adaptive behaviours, that trust between the child and, in this case, the teachers, or those providing support to her at School 1 Primary School, was an essential element of any prospect of her being able to change.

19. He acknowledged that very similar programs, if not identical programs, but involving different personnel, would be available at School 2 Primary School. It was not in issue that the Education Department would offer a similar program or programs, and similar support, though involving different personnel.  The family consultant said that he acknowledged that, and he also acknowledged that the fact of [X] having cousins at that school might well ease her transition to a new school; the fact that [A] might be there for three months at least, might ease her transition; and the fact that there could be information exchange between the two schools that would ease her transition.

20. He lodged a caveat, however, by saying that a potential difficulty in such a transition is that there may be delay in exchanging the information or, given the nature of these things, some information may be overlooked.  He said that it should not be assumed that the transition would be seamless.

21. I generally accept all of those observations and I consider that the real issue is between the inconvenience of the current travel regime for the mother and Mr Garcia, on the one hand, and what I think is the desirability of continuing stability in [X]’s education. I acknowledge that there is inconvenience in the travel arrangements but I agree with the observation of the family consultant that, in a case such as this, ultimately, the issue is the best interests of [X], and I am satisfied that [X]’s best interests are best served by her continuing at School 1 Primary School.  That will be the order.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Young

Date:  18 September 2018