Saint & Saint &
[2021] FedCFamC1F 173
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
Saint & Saint & [2021] FedCFamC1F 173
File number(s): BRC 407 of 2019 Judgment of: HOGAN J Date of judgment: 2 November 2021 Catchwords: FAMILY LAW – PARENTING – Interim orders – Schooling – Whether the child is to remain at the school which he currently attends. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04(1)
Cases cited: Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346
Division: First Instance Number of paragraphs: 23 Date of hearing: 20 October 2021 Place: Brisbane (by telephone) Solicitor for the Applicant: Ms Stannett, Freedom Law Counsel for the Respondent: Mr Larsen Solicitor for the Respondent: McCarthy Family Law ORDERS
BRC 407 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SAINT
Applicant
AND: MS SAINT
Respondent
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
2 NOVEMBER 2021
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
1.The mother be permitted to enrol the child Y, born in 2014, at H School to commence at that school in Term 1, 2022.
2.The father do all acts and sign all documents necessary to cause the child to be enrolled at H School to commence at that school in Term 1, 2022.
3.The child attend H School from the start of Term 1, 2022.
4.The child continue to attend at G School until the end of Term 4, 2021.
5.In the event that either parent fails to comply with a request to sign and return any document necessary to put the terms of this Order into effect, a Registrar of the Federal Circuit and Family Court of Australia (Division 1) is appointed, pursuant to s 106A of the Family Law Act 1975 (Cth), to sign such document or documents in the name of the parent who has declined to comply with such request.
6.Save as is ordered above, the Application in a Case filed 2 June 2021 and the Response to Application in a Case filed 29 July 2021 are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Saint & Saint has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
The matter currently before the Court arises from the filing of an Application in a Case by the father on 2 June 2021.
How this document was accepted for filing remains a mystery given that the parties entered into final consent orders in terms made by Registrar Brooks on 16 January 2020 (the January 2020 orders). At the time this application was heard, no Initiating Application had been filed, although the comments made during the course of the hearing suggest that this situation will not remain.
Sensibly, no point was taken by the mother’s legal representatives about this anomaly.
Given the overarching purpose of the Rules is to “facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible”,[1] I considered it appropriate to consider the father’s application for variation of the January 2020 orders – especially given that the mother also sought to vary the same – rather than adjourning the matter so that one of the parents could file an Initiating Application.
[1] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04(1).
The orders sought by each parent on an interim basis relate to where their child, Y, who was born in 2014 and will soon be seven years of age, should go to school in 2022. Whilst the relief sought by the father in the Application in a Case filed on 2 June 2021 included, in essence, that the mother be restrained from relocating Y to live outside the M Shire Council local government area, this relief was not pressed at the hearing as the evidence, discussed in greater detail below, establishes that the mother and Y have already moved to live outside that area.
What do the January 2020 orders provide?
Whilst the terms of the January 2020 orders deal with many matters, the aspects of the same particularly relevant to the consideration of the current application and the response to the same are, it seems to me, that the orders provide for:
(a)the parents to have equal shared parental responsibility in respect to all major long term issues as defined in the Family Law Act 1975 (Cth), being issues which include Y’s “education (both current and future)” and changes to his living arrangements which make it significantly more difficult for him to spend time with a parent;[2] and
(b)the parents to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility and that such consultation will involve each informing the other about the decision to be made, consulting with each other and making a genuine effort to come to a joint decision;[3] and
(c)Y to live with his mother and spend time with his father for periods of time agreed between his parents and, failing agreement, as follows during school terms:
(i)from after childcare or school on Friday until before childcare or school on Monday morning, extended to Tuesday if Monday is a public holiday or pupil free day (in week one); and
(ii)from after childcare or school on Thursday until before childcare or school on Friday morning (in week two);[4] and
(d)all changeovers that occur on a school day to occur at school;[5] and
(e)the parents to attend family dispute resolution and make a genuine attempt to resolve their dispute if one arises about the interpretation, implementation or enforcement of the orders “including any claim by a parent that the [o]rder should be varied”.[6]
[2] Order 1, Orders made by consent on 16 January 2020.
[3] Order 2, Orders made by consent on 16 January 2020.
[4] Order 5, Orders made by consent on 16 January 2020.
[5] Order 15, Orders made by consent on 16 January 2020.
[6] Order 33, Orders made by consent on 16 January 2020.
Summary of uncontentious matters
When the January 2020 orders were made, Y was living with his mother at Suburb D; he had not long started to attend at G School. His father was living at Suburb J, where he remains.
Suburb D is about 18 kilometres from G School; the father’s home at Suburb J is about 9 kilometres from G School. As I understand it, it would have taken the mother about 17 minutes to take Y from her Suburb D home to G School and the father about 13 minutes to take Y from his Suburb J home to G School.
It seems that, in about May 2021, the mother was told by the owners of her rental property that, when her lease expired, the rent for the same would increase by $70.00 per week.[7] As she is a student, she could not afford the foreshadowed increase and started to search for alternate accommodation.
[7] From $350.00 to $420.00 per week.
Whilst it is certainly not intended as a criticism of the father, the reality is that, whilst he opposed the mother moving with Y to live at K Town, where the mother asserts the closest affordable accommodation she could locate was, he did not offer any additional financial support to her to seek to defray the increased rental costs she would have to have met in order to remain living in her rented Suburb D property.
It seems uncontroversial that the mother and Y moved to live in rental premises located at K Town in early June 2021. Their home in K Town is approximately 56 kilometres from G School. Since moving to K Town, the mother has ensured that Y has continued to attend G School; as I understand it, it likely takes the mother about 47 minutes to take Y to school in the morning and the same amount of time to return him home after school.
The mother’s home at K Town is approximately 9.6 kilometres from H School, which is the school the mother proposes Y attend from the start of Term 1, 2022. As I understand it, it will likely take the mother about 13 minutes to take Y to school in the morning and the same amount of time to take him home from school in the afternoons. The father’s Suburb J home is approximately 56 kilometres from H School and, as I understand it, it will likely take him about 47 minutes to take Y to school when he is responsible for this and the same amount of time when he collects Y from school to spend time with him.
Whilst the arrangements for the same may well have been attended by communication difficulties, Y has continued to spend time with his father in accordance with the terms of the January 2020 orders.
Consideration of the competing parenting proposals in accordance with applicable principles
The manner in which the Court is to approach, consider and determine applications for interim parenting orders is well-known and requires no further elucidation.[8]
[8] Goode and Goode (2006) FLC 93-286; Banks & Banks (2015) FLC 93-637.
The father opposes Y attending H School. He does so because he considers that Y is settled at G School; has friends there; is well-known to teachers there and that it is a better school, with better NAPLAN results (particularly in relation to literacy) than H School. It was also submitted on his behalf that Y’S best interests will be better met by continuing to attend G School than moving to H School because the former has extra-curricular activities in which Y is interested and the latter is a much smaller school. In the event that his primary proposal for Y to continue to attend at G School is not accepted, the father proposes that Y attend at L School, which is, it was submitted, located approximately halfway between the homes of each of his parents.
It was submitted, in essence, on behalf of the mother that it is in Y’S best interests to attend H School from the start of Term 1, 2022 because, as the school is located close to the home in which he lives with her, he will not have to endure the travel associated with his ongoing attendance at G School and he will likely obtain benefits from attending a much smaller school, with associated smaller class sizes.
On the evidence before me and noting the relatively recently made January 2020 final consent orders and the interim nature of this application, I am not persuaded that it is currently in Y’s best interests to change his primary parenting arrangements just so that he can continue to attend G School.
Rather, having considered the evidence relied on by each of the parents and the submissions made by the legal representatives who appeared for each of them, I consider it will be in Y’s best interests that he attend at H School from the start of Term 1, 2022, because this will remove the impost on him of the significant travel he would be required to continue to do each day he is in his mother’s care if he continued to attend at G School after the end of Term 4, 2021.
Whilst this decision will mean that Y is required to undertake longer travel on the occasions his father is taking him to school and collecting him from school (that is, on alternate Friday afternoons and Monday mornings and alternate Thursday afternoons and Friday mornings), his continued attendance at G School would require him to continue with this lengthy travel on the balance of the school days. The removal of the burden of travel outweighs the other matters about which submissions were made.
To the extent that it is necessary to do so given the state of the evidence about Y’s potential attendance at L School, I am not persuaded that his best interests are better met by attending a school that is located halfway between his parents’ homes than one which is located much closer to the home of his primary care provider.
Balance of relief sought by each parent in the Application in a Case and Response to Application in a Case
Whilst both parents also sought that the January 2020 orders be otherwise varied in the manner particularised in their respective formal documents, no submissions were made to support the relief sought as the focus was on the issue of where Y will attend school from the start of Term 1, 2022.
Given the absence of attention to the relief other than where Y will attend school from Term 1, 2022 and the anomaly to which I have referred at the commencement of these Reasons, I intend to dismiss the balance of the Application in a Case and the Response to it.
As none of the relief other than the issue of Y’S future school was in fact determined by order, neither party is, it seems to me, precluded from seeking to be heard in relation to those issues in the future if the same cannot be resolved without recourse to further litigation.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 2 November 2021
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