Reece and Reece

[2007] FamCA 285

FAMILY COURT OF AUSTRALIA

REECE & REECE [2007] FamCA 285

FAMILY LAW - CHILDREN - Best interests

APPLICANT: Mrs Reece

RESPONDENT: Mr Reece

FILE NUMBER: NCF 659 of 2006

DATE DELIVERED: 8 February 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Mullane J

HEARING DATE: 25 January 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr C Boyd as Agent for  Messrs Fowler Predney Solicitors, Toronto

COUNSEL FOR THE RESPONDENT: Mr J Hamilton

SOLICITOR FOR THE RESPONDENT: Ms Krstina Wooi, Solicitor

Orders

1. By 31 May 2007 each of the parties must attend and complete a course or course of counselling in Parenting After Separation with a provider approved or nominated by the Director of Child Dispute Services of the Family Court of Australia, Newcastle Registry and must:

   1.1telephone the director within 7 days and obtain the necessary approval or nomination;

   1.2     attend each session of the course or counselling as nominated by the provider;  and
   1.3     pay the reasonable fees of the provider.

2. Pending further order each of the parties must do all acts to ensure that the child, a son, born in October 2001 is enrolled in and attends K Public School.

3. The mother must within 10 days file with the Judge’s Associate and serve on the father’s solicitors particulars of the changes or other circumstances she relies upon in seeking to re-litigate the issues of where the child is going to live.

4. Pending further order the father during school terms must deliver the child to school at the start of school on each Monday after weekend contact, each Wednesday and each Thursday and the mother must deliver the child to the father at the McDonalds Restaurant at T after school on each Tuesday and each Wednesday and the Friday before each contact weekend.

5. Note:  The parties agree that the father will return the child to the mother at 9am on Monday, 29 January 2007 at McDonald’s Restaurant, T 

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCF 659 of 2006

MRS REECE

Applicant

And

MR REECE

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This was an interim hearing as part of hearing under the less adversarial trial procedures.  This interim hearing was in relation to a boy, a son, who is 5, on the issue of whether he should attend K Public School near where his mother resides or M Public School near where his father resides.  It is a distance of about 36 kilometres between the parents' households.

2. The orders were made at the end of the hearing and these were are the reasons.  It should be noted that the mother has been residing at K since May 2005; and the father has been living in a de facto marriage with Ms W at M for about four or five months and her sons, B, who is 9; and K, who is 6, are members of that household.   The father is a teacher at M Public School, as is Ms W.

PRIOR ORDERS 

1. The most recent prior orders applying in respect of the child are orders made on 10 March last year and those order are as follows:  

   1. That the child of the relationship, [a son] born [in] October 2001 reside with the Applicant Wife;

   2. That the Respondent Father have contact with the said child as follows:

   (a) Each alternate weekend from Friday 5:00pm until Monday at 8:00am;

   (b)      From 5:00pm Tuesday until the commencement of school Thursday if the child is enrolled in school or in the alternative, 7:30am Thursday morning;

   (c)      For half of the gazetted school holidays as agreed and failing agreement for the second half of the school holidays in each odd numbered year, and the first half of the school holidays in each even numbered year;

   (d)      On the said child's birthday from 8 October at 5:00pm until 9 October at 3:00pm in each even year, and from 3.00 p.m. 9 October until 8:00am 10 October in each odd year;

   (e)      From Christmas Eve at 2:00pm until Christmas Day at 2:00pm in each even numbered year and from 2:00pm Christmas Day until 5:00pm Boxing Day in each odd numbered year.

   (f)       From Easter Saturday at 2:00pm until Easter Sunday at 2:00pm in each even numbered year and from Easter Sunday 2:00pm until Easter Monday 5:00pm in each odd numbered year.

   ­(g) On each Father's Day weekend from 3:00pm Friday until 8:00am Monday morning.

   3. That for the purposes of facilitating contact the Applicant Mother shall deliver the said child to the McDonald's car park at [T] at the commencement and conclusion of the said Respondent Father's contact and the said Respondent Father shall collect and return the said child to the McDonald's car park at [T] at the commencement and conclusion of contact.

   4. On the Father's birthday from 5:00pm on 14 June in each year until 3:00am on 16 June in each year.

   5. That the said child shall reside with the Applicant Mother at all other times other than those as set out in Clause 2 (a) to (g) above.

   6. That the parties shall be jointly responsible for the long term care, welfare and development of the said child and that this shall include and not be limited to the said child's education.

   7. That each party shall be solely responsible for the said child's care when the said child is in their care.

   8. That despite the provision of Order 2 the said child shall have contact with Mother as follows:

   i)for the Mother's birthday from 5:00pm 10 October in each year until 8:00am on 12 October in each year.

   ii)For the Mother's day weekend from 5:00pm Friday until 9:00am following Monday.

   iii)      From 2:00pm Christmas Eve until 2:00pm Christmas Day in each odd numbered year and from 2:00pm Christmas day until 5.00pm Boxing Day in each even numbered year.

   iv)On the said child's birthday from 3:00pm on 9 October until 8:00am on 10 October in each year.

   9.        At any other times as the parties may mutually agree.

2. Those orders were made by agreement of the parents, but did not embody arrangements for his attendance at school, which will commence in this school year.

THE RELEVANT LAW 

1. The relevant law is contained in subsections (1), (2) and (3) of section 60CC of the Family Law Act, which provide:

2. Subsection 60CC provides:

   Determining child’s best interests

   (1)      Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

   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.

   Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   Additional considerations

   (3)      Additional considerations are:

   (a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

   (b)      the nature of the relationship of the child with:

   (i)       each of the child’s parents; and

   (ii) other persons (including any grandparent or other relative of the child);

   (c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

   (d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i)       either of his or her parents; or

   (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)       the capacity of:

   (i)       each of the child’s parents; and

   (ii) any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

   (h) if the child is an Aboriginal child or a Torres Strait Islander child:

   (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii) the likely impact any proposed parenting order under this Part will have on that right;

   (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

   (j) any family violence involving the child or a member of the child’s family;

   (k) any family violence order that applies to the child or a member of the child’s family, if:

   (i)       the order is a final order; or

   (ii) the making of the order was contested by a person;

   (l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m) any other fact or circumstance that the court thinks is relevant.

3. The mother has pending an application to vary the 2006 orders as to the shared care of the child and the relevant issue is to be decided as an urgent issue is which school the child should attend pending further order.  These are therefore interim proceedings and the issue is not how the long terms interests of the child are best served, but how the interests of the child would be best served pending the hearing being finalised.   

HOW MUCH TIME IS THE CHILD IN EACH PARENT’S CARE? 

1. Mr Hamilton did the calculation and I accept that each fortnight the child spends about 235 hours in his mother's care and about 141 in his father's care. 

HOW MANY SCHOOL DAYS IS THE CHILD IN EACH PARENT’S CARE? 

1. Under the present orders the child will spend in every fortnight of school terms seven nights with each parent. He will spend eight school days in the mother's care and two school days in the father's care. 

HOW WOULD THE TRANSPORT ARRANGEMENTS WORK? 

1. In each fortnight on five days he would be travelling to school from M, and on five days he would be travelling to school from K. Similarly, in each fortnight on five days he would be travelling home from school to M, and five days he would be travelling home from school to K.

2. If the child is at M Public School on 10 Occasions per fortnight on 10 Occasions per fortnight in school terms she would make the round trip to take the child to school or collect him from there.  The total travel for her would be about 720 kilometres.  The husband would not be involved in provision of the transport apart from short journeys between his home at M and the school.

3. If the child is at K Public School the father is unable to collect him from school by 3 pm because the father does not finish work until later.  The mother proposes that if the child is at K Public School she will drive the child to meet the father at T and that will shorten the father's round journey by 20 minutes to half an hour, and it will enable the father to be able to collect the child after he finishes school.   Each fortnight of a school term the father would do 5 round journeys between M and K to take the child to school (about 360  kilometres in total) and 5 round journeys between M and T to collect the child after school (it seems on the evidence about 200 kilometres per fortnight).   It appears that if the child attends K Public School, the father’s travel per fortnight would be about 560 kilometres and the wife’s about 160.

WHICH SCHOOL IS EDUCATIONALLY BETTER FOR THE CHILD? 

1. There has been no assessment of either school by any person with the necessary expertise to give a reliable opinion on that question.  Various evidence been offered about advantages of each school and the Court is not in the position to make any conclusion from that limited evidence that either school is superior educationally. 

2. The father's evidence was that at K Public School the computer facilities and the computer teacher are both inferior to the facilities and teacher M, but generally the evidence of the father does not establish that he has any expertise in comparing schools or reaching a judgment as to which school is educationally better for the child. 

WHAT FLEXIBILITY DO THE PARENTS HAVE WITH TIME FOR THE CHILD?

1. The mother is working only part time and the father is working as a teacher full time.  The mother has much more flexibility with her hours and for this reason she has the capacity to be more involved in the child’s schooling and available to him in school hours if she is required to attend the school or to collect him.

BENEFITS TO THE CHILD OF ATTENDING A SCHOOL WHERE HIS FATHER WORKS? 

1. The father, in his statement to the Court, said that he was very concerned to have a large role in the child’s life, particularly the child’s education and also as a role model.  He sees the child’s attendance at the school where he teaches as contributing to a larger role in the child's life. That would include easier contact with the child's teachers. 

2. In a general sense it would be a benefit to the child to have time with his father during school days, which he would have despite the limitations on his father because of the duties of his employment.  The father would have some opportunities outside the child’s normal class times to see the child, such as in morning tea and lunch breaks, but those opportunities would be limited because of his duties, such as supervision of other children at such times.  The evidence does not go so far as to establish that the father would regularly be able to spend one to one time with the child in school hours. 

RELATIONSHIP BETWEEN THE FATHER AND HIS PARTNER ON THE ONE HAND AND THE MOTHER ON THE OTHER. 

1. The father and the mother in their opening statements were each asked to speak about what he or she hopes to achieve for the child in the proceedings, and what his or her aspirations are for the child for the longer term.  The mother, in that statement, says there is an ongoing conflict between the parents of which the child is acutely aware and she does not want that to impact on his schooling.  When asked, she said that in the period of nearly two years since separation, there have been several occasions whether the father has asked to vary the arrangements for the child by phone and when she declined he became aggressive. On one occasion in late September last year after she ended the call, his de facto wife rang the mother demanding to know why she was being difficult.

2. The father, in his opening statement, spoke for about 23 minutes.  A considerable part of that time was devoted to complaints about the mother.  The father was assessed in August 2006 to pay child support for the child of $176 per month, but he has not paid that amount.  He says that he has paid $80 per month by agreement.  There is no child support agreement.  The mother says he has refused to pay the assessment and has, instead, paid an average of only $72 per month.  There are arrears outstanding and, clearly, the parties are in dispute about the financial support of the child.  The father said in evidence that he will pay the arrears "If she asks.  She's always said it's not about the money."  But the father has been aware, since at least the mother's questionnaire, that she was claiming he was in default and was not conceding any agreement to vary the assessment.  But he has not still paid the arrears and he is still not paying at the rate assessed.

3. Prior to the orders of March 2006 there had been an incident in February.  The father went unannounced and without the mother's agreement and sought to collect the child from pre school.  It was not a time when the parties had agreed the child would go with the father.  The father had requested to have the child and the mother had refused.  The father then sent the mother a text message purporting to unilaterally impose a shared care arrangement.  The mother had not yet responded to the text message when the father went to the pre school.

4. When the father found the child was not at the pre school he drove to the mother's street and parked near her home.  He telephoned her home and the maternal grandmother answered the call.  The father asked her to send the child out.  She said there was no agreement to that affect and she declined.  The father then telephoned the mother at work.  She said she could come home and discuss the situation.  The mother was delayed in traffic and had not arrived in half an hour.  The father became more irate.  He telephoned her again.  At some time the father said to the mother, "What do I have to do to see my son, smash down the door or throw a brick through the window" or he made a direct threat to do one or both of those things. 

5. The mother called the police at some stage after the father spoke of smashing down the door or throwing a brick through the window.  The mother did not come home.  She went to the father's sister's home and stayed there.  Before the police arrived the father's sister, and later the father's mother, each attended and tried to persuade the father to leave.  But he left only after the police attended and spoke to him. 

6. There was another incident on 8 September.  Again, the father arrived unannounced at the child’s pre school and sought to collect him at a time where the agreement was that he would be in the mother's care.  At the time the mother was collecting the child.  In front of the preschool and in the child’s presence the father demanded the child go with him.  There were people coming and going, collecting other children from the pre school.  The father verbally abused the mother.  He was swearing.  He prevented her from leaving for about 30 minutes by standing in her way at the rear of her car so that she could not move the car. 

7. The mother says she believes that if the child attends M Public School, where the father and his partner would be teaching, he will not be allowed to have a normal school relationship with her due to intimidation and verbal abuse by the father and his partner, sometimes in front of the child.  She says the child is acutely aware of the conflict and she believes the effect on his school life would be negative. 

8. The Court accepts the mother's evidence that because of the father's past behaviour of imposing, or seeking to impose, unilateral decisions about the child on her, such as about child support and about when he can have the child:

   I have been afraid to refuse any demands by the father in fear of repercussions.

9. In oral evidence she said that there are "huge amounts of conflict" between them.  She said that the father likes "flexibility" in the arrangements for the child and many times has phoned her and sent her text messages for changes to the arrangements.  She says:

   He doesn't like it if I don't agree to the change he's requested. 

10. She could not say how often he has asked for changes.  The mother says she has good realise to withhold her present address from the father for the four months she has lived there because of the incidents in February and September last year and what she perceived as threats in the February incident.  She conceded that he has not done anything of the type that she says he threatened.  She said that when he phoned her during the February incident:

    He was different to the man I'd known.  I do not know him like that.

11. Her evidence is:

    I never know what mood he will be in at the changeovers. Sometimes he will talk, sometimes he will not.  I never know where I stand.  Sometimes on the phone he'll just hang up.

1. The evidence is the father has not offered any apology for his behaviour in the incidents in February and September.    He told the Court that he believes the mother has animosity to his partner that clouds the mother's judgment and exacerbates the parental conflict.  He says it may be caused by jealousy of his partner.  Clearly, the mother's move to K located her much closer to her employment and in closer proximity to the paternal grandmother, the paternal aunt, and two cousins of the child with whom she and the child have close relationship and also provided her with easier contact with the child’s paternal grandfather and paternal uncles, but the father acknowledged none of these genuine reasons for her move.  He testified that he believes the mother moved to K "just to ensure [the child] doesn't go to my school." 

2. The father conceded that the mother's view is that there is too much involvement of his partner in discussions with the mother about the child. He conceded that the child was distressed by the incident at the preschool in September. 

3. The mother has a close relationship with the father's mother.  The mother is usually referred to as "Annie" rather than her full first name of Annabelle.  The father called her Annie until separation, but since separation he, in pursuit of a conflict between him and his mother, has referred to the mother as "[Annabelle]."  The father’s partner has also referred to her as Annabelle for the same reason.  This petty behaviour was intended to irritate the mother and the father’s mother.

4. The mother is concerned that the father and his partner will continue involving the partner in discussions or negotiations regarding the child.  The Family Consultant, Ms G, had seen the parties in November last year.  She said the parents' relationship has deteriorated since then.  She described the relationship then as "reasonably workable".  She testified at the hearing that the first step to reduce the conflict is to exclude the father’s partner from any parental discussion regarding the child and from any changeovers.

5. The father’s partner later gave evidence, but she did not in her evidence recognise there was anything wrong with the role she has adopted in parenting discussions with the mother regarding the child.  She defended it to an extent saying that she had only done it when the father had asked her to do it on his behalf.  She conceded that she went to the orientation day the child attended at K Public School last year.  She said she, "went in support of" the father and took time off work to be there.  She apparently did not recognise any problem in her involving herself in parenting discussions with the mother or her attendance at the orientation day when both parents were attending.  She conceded that she has been upset by some of the things said in such dealings with the mother.  Sometimes when she says hello to the mother, the mother does not respond. 

6. She denied that she knew at the time that the mother objected to her involvement in parenting decisions for the child.  In her evidence-in-chief she said she was happy to cease being part of the decisions regarding the child and she would be happy to be "out of the way" when the mother attended M Public School.  But after cross-examination when I asked her whether she would change her approach in view of the advice of the Family Consultant, she avoided the question and volunteered unresponsive material which appeared to be intended to justify her past behaviour.  When I repeated the question she said she would change. She conceded it might be useful for her to attend a course in parenting after separation. 

7. The parents' relationship involves some serious conflict on parenting issues about the child.  It has worsened since Ms G saw them in November.  Each parent is distrustful and disrespectful of the other.  Some of the conduct of the father to the mother is quite petty, irrational and provocative.  They have serious communication problems.  Their relationship problems are further aggravated by the father’s partner’s involvement in parenting discussions regarding the child.  She and the father have both failed to recognise the inappropriateness of that and the adverse consequences for the parents' relationship.

8. The father is insensitive to the provocation of his decisions to have his partner discuss parenting issues about the child with the mother and attend the orientation day for the child at K Public School. 

9. Another complexity is the fact that while the mother has close and positive relationships with the paternal aunt and the paternal grandmother, the father and his partner do not.  The father does not speak to his sister and his partner denied that she has a good relationship with the paternal grandmother.  She described it as "polite". 

10. The Court accepts the mother's evidence that the child is very aware of the conflict and hostility between the father and his partner on the one hand, and the mother on the other.  At the September incident the child saw it all.  The mother testified "he is very clued up" and has said he does not talk about his mother with his father because he says his father gets cranky. 

11. Ms G's evidence is that school is normally a neutral place for a child whose parents are in conflict, a form of refuge from the adult conflict, but she said if the child goes to M Public School it will not be a neutral place or a refuge from the parental conflict because it is a school where his father and his partner work.  Presumably, the child would perceive that that would involve a level of direct and indirect scrutiny of what he says or does at school about each of his parents. 

12. Ms G also says that the fact that the father and his partner work there would also remove "the possibility of the school being a neutral changeover".  She said that for the child other teachers or pupils seeing misbehaviour by the adults would cause him gross embarrassment.  Ms G's opinion also is that in visiting the child’s school, if he attends M Public School, the mother would be "walking on eggshells".  She said would feel she has no equal standing with the father or his partner as they would be staff members and colleagues of the other staff.

13. She said that the mother in that sense would be visiting "their place" and would see herself outnumbered by the two of them.  Ms G said that that situation would have much greater potential for conflict on every occasion that the mother attended, than if the child went to another school.

PARENTING AND SOCIAL SUPPORT 

1. At M Public School, the child would see the father’s partner’s two sons, the father’s partner and his father at school.  He would also attend school with, and probably in the same class, children he has known at preschool at M.  At K Public School the child would attend with his cousin, with whom he has a very close relationship and also with, and probably in the same class, children that he has known at preschool at K.  He would also probably have family support at the school from his paternal aunt and paternal grandmother. 

CONCLUSIONS 

1. The child's interests are best served pending further order if he attends K Public School because:

   (1) he is more often in his mother's care and she resides at K.  That will better facilitate relationships with friends from school;

   (2) the mother is responsible for him for eight of the 10 school days in each fortnight of school terms and she resides at K, so in that sense K Public School is more convenient for the mother and the child;

   (3)  the Court does not have sufficient evidence to determine one of the schools is better educationally than the other;

   (4) the mother has more flexibility with her work hours and can be more available for the child, if required, in school hours;

   (5) if the child attends M Public School he would have limited time with the father, his partner, and the partner’s two sons during school days subject to the demands of the employment of the father, his partner, and the other commitments of B and K;

   (6) the relationship problems between the father and his partner on the one hand, and the mother on the other, are such that K Public School is also preferable because

   (6.1) it is more likely to provide a neutral haven for the child from that conflict;

   (6.2) is likely to provide fewer opportunities for the father to impose on the mother unilateral decisions about the child's care than a school where the father is working;

   (6.3) it is less likely to provide opportunities for the father’s part to involve herself in parenting issues about the child;

   (6.5) it is likely to provide a neutral changeover location when required whereas M will not; and

   (6.6) it is likely to treat the parents as equals and provide them equal access.

I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mullane.

Associate: 

Date:  29 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as REECE & REECE