S and W

[2008] FCWA 12

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: S and W [2008] FCWA 12

CORAM: CROOKS J

HEARD: 23 & 24 JANUARY 2008

DELIVERED : 5 FEBRUARY 2008

FILE NO/S: PT 4164 of 2006

BETWEEN: S

Applicant/Father

AND

W
Respondent/Mother

Catchwords:

Parenting orders - change of schooling on interim basis

Legislation:

Family Law Act 1975, s 60CA, s 60CC

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr M Berry

Respondent: Mr M Rynne

Independent Children's Lawyer : Mr S Jones

Solicitors:

Applicant: Paynes

Respondent: G A Lacerenza

Independent Children's Lawyer : Calverley Johnston

Case(s) referred to in judgment(s):

Re G Children’s Schooling (2000) 155 FLR 459

1The dispute to be determined concerns the parenting orders to be made for the children, [Carol] aged nearly 6 years and [Jane] who is 4 years old. [Carol] and [Jane] are the only children of the marriage between [Mr S] and [Ms W].

Short background

2After marrying on 31 March 2001 the parties finally separated on 22 July 2006.

3Apart from [Carol] and [Jenny], the wife has two children from her first marriage, [Nat] who is nearly 18 years of age and [Karina] who will be 15 years of age in April.

4In about April 2000 the husband and wife purchased a property [in the outer suburbs] which later became the parties’ matrimonial home. Once the parties moved to [the suburb], the wife’s elder children [Karina] and [Nat] attended the [local primary school] and [Carol] attended playgroup, kindergarten and pre-primary at this school in 2005 and 2006.

5Following the parties’ separation, the husband left [that suburb] and moved to [another suburb nearby]. He later took steps to enrol [Carol] in the pre-primary class at [his local primary school] which is very near to his [new home].

6The wife did not agree to [Carol] changing schools. It was her wish that [Carol] continue to attend the [original primary school] in 2007. Notwithstanding the wife’s objections, [Carol] completed her pre-primary schooling at [his local primary school] in 2007.

7On the first day of the trial, the parties received an updated report from the single expert, [Mr R], which contained recommendations for resolving the parenting issues. [Mr R] confirmed the recommendations in his initial report which contained the following paragraphs:

“The strength of this family is that both parents love their children, want to participate in their development and each parent can individually give significant positive contributions to the psychological development of their children. Both parents have established a close and secure bond with their children. Despite some stress in the family the children are well adjusted, not anxious or insecure and have developed a very good relationship with both parents.

It was recommended that the children live an equal amount of time with each parent as was the case during this assessment. It is important that heed [be paid to] research findings which indicate that parents who abuse alcohol and/or drugs are extremely likely to cause psychological scarring upon their children which is detrimental to the children’s psychological adjustment when they are adults.

8After receiving the report, the wife and husband were successful in negotiating a resolution to most of the matters in dispute between them and I made orders in terms of the parties’ agreement. Until further order, the parties are to have equal shared parental responsibility for [Carol] and [Jane] who are to spend equal time with each of their parents.

Parenting issues not agreed

[Carol]’s school

9[Carol] is to commence first year primary in 2008. The husband seeks that [Carol] continue at [the school near the father’s house] whilst the wife seeks that [Carol] commence first year primary at [her local primary school].

[Jane]’s attendance at day care

10The husband seeks that the wife arrange for [Jane] to attend day care at [his local day care] on Tuesdays and Thursdays of the week when she is living with the wife. The wife opposes this.

Husband’s submissions

11Mr Berry, counsel for the husband, made submissions which can be summarised in these terms:

(a)[Carol] attended [the father’s local primary school] in 2007 and her end of year report indicates that [Carol] has made good progress;

(b)the husband lives at [an address] which is about one kilometre from [the local primary school]. [Carol] has friends at the school with whom [Carol] plays and she is often invited to stay over at their homes;

(c)[Carol] should remain at [the local primary school] where she is happy and settled;

(d)if [Carol] returns to the [previous] school, it would require a round trip of about 50 minutes to deliver her to [that] school and return to [the father’s home] each morning and the same travelling time when she is picked up and returned to the husband’s home when she lives with him. The husband has full-time work and anticipates problems getting time off to transport [Carol] to and from school. Whilst the husband’s relatives are regularly called up to help out with getting the children to and from their commitments they may not be able to transport [Carol] from [the father’s home] to [the previous school];

(e)on the day care issue, [Jane] enjoys attending the [same] centre where she has an established routine and the husband wants to ensure that [Jane]’s place at the centre is not lost by her failing to attend during the periods she lives with her mother;

(f)the husband would be responsible for payment of the day care fees.

Wife’s submissions

12Mr Rynne, counsel for the wife, submitted:

(a)[Carol] has established friendships at the [previous] school where she attended kindergarten and pre-school classes in 2005 and 2006 and there was no reason why [Carol] could not adjust quickly to returning to the school at [the previous school];

(b)the wife had commitments with her elder children and it imposed an unreasonable burden on her to drive the 50 minutes to get [Carol] to and from school each day. Unlike the husband, the wife had no relatives who could assist her with these travel arrangements;

(c)the wife did not accept that the husband could not make the necessary arrangements with his employer to enable him to transport [Carol], particularly given his affidavit evidence which suggested the husband had flexibility with his employers which would enable him to attend to the needs of the children;

(d)the wife should not be required to deliver [Jane] to day care when she was available to look after her on a full-time basis during the week [Jane]lived with her;

(e)the wife is already obliged under the consent arrangements to deliver the children to gymnastics each Wednesday [to that suburb].

Submissions of independent children’s lawyer

13Mr Jones, counsel for the independent children’s lawyer, submitted:

(a)the issues relating to [Carol]’s schooling and [Jane]’s day care attendance were finely balanced and acknowledged that the evidence indicated that [Carol]had a prior involvement with the [previous] school and has friends [there];

(b)it was not necessary for [Jane]to attend the centre during the week she lives with the wife to retain her place at the centre;

(c)there will be inconvenience to the wife if she is required to transport [Carol] to [the school near the father’s residence] and there will be inconvenience to the husband if he is required to transport [Carol]to [the previous primary school].

14Mr Jones did not ultimately adopt a position on either of these issues.

The law

15Section 60CA of the Family Law Act 1975 provides that when making a particular parenting order, a court must regard the best interests of the child as the paramount consideration. In determining what is in these children’s best interests, I am required to have regard to the factors set out in s 60CC. The circumstances of this case vary from those in Re G:Children’s Schooling (2000) 155 FLR 459: in the present case, there is a shared care arrangement. Nevertheless, the Full Court in Re G identified the factors which held significance in the type of application before the Court, which are now expressed in the following terms in s 60CC:

“(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’ parents; and

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

…

(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;

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

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

…

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

16Since Re G was determined, two considerations have been elevated to be primary considerations and other factors, including s 60CC(3)(c) have been included. I have had regard to these factors, to the extent that they are relevant. However, the children’s ages are such that little weight could be placed on their views.

Conclusion

17I have found these issues very difficult to decide with both parties advancing strong arguments to support their respective positions.

18During 2007 when [Carol] attended pre-primary at [the school near the husband’s residence], the wife was able to make arrangements to take her to and from school notwithstanding the travelling time and her commitments to her elder children, [Nat] and [Karina]. The wife said she would continue to do this if [Carol] was to remain at [this school] in 2008. When [Carol] attended the kindergarten/pre-primary class at the [previous primary school] in 2006, the husband was able to arrange for [Carol] to get to and from school when she lived with him at [his new residence] notwithstanding his work commitments. The husband may need to rely on members of his extended family to assist him in these travel arrangements; however, given the support he has received from them in the past, I consider he could reasonably make the necessary arrangements again.

19[Carol] has friends at each of the schools. Whilst she is doing well at [the local school], I am satisfied she would do equally as well at [the previous school]. I accept she is a happy and secure girl who would readily adjust to returning to school at [the previous school].

20On balance, I consider [Carol] should remain at [the new school] on an interim basis. This is on the understanding that the schooling issue will be discussed when the parties come to review the other parenting arrangements agreed upon. The parenting orders agreed upon by the parties are to operate “until further order” and the parties anticipate a review of the agreed arrangements in not less than 12 months, unless there is a material change in circumstances, including any significant non-compliance with the interim orders.

21This decision is not to be taken as any determination that I consider [the new school] to be the preferred school for either of the children. If the parties are unable to reach agreement on the schooling issue when the interim parenting orders are reviewed, then the Court can make final orders on the schooling issue, should it be necessary.

22It is not in the children’s best interests to require the wife to ensure that [Jane] attends the day care centre [near the father’s residence] on Tuesdays and Thursdays as sought by the husband. I accept Mr Rynne’s submissions on this issue. The wife is presently available to look after the children on a full-time basis. She should decide whether [Jane] attends a day care centre when she lives with the wife. [Jane] can attend play‑group at [the previous school]. The wife is already required under the interim agreement to take the children to gymnastics at [another suburb] each Wednesday during those weeks when the children are with her. This will enable the children, particularly [Carol], to maintain weekly contact with those children who attend the gymnastics class [in this suburb].

Proposed orders

23Subject to hearing from counsel, I propose to make the following orders:

1.Until further order the child, [CAROL] born [in] March 2002 attend the Primary School [located near the residence of the father]

2.The husband’s application seeking that the wife arrange for [JANE] born [in] December 2003 to attend day care [in the same suburb] each Tuesday and Thursday be dismissed.

I certify that the preceding [23] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate