SANDISON & THORNHILL
[2019] FamCA 85
•25 February 2019
FAMILY COURT OF AUSTRALIA
| SANDISON & THORNHILL | [2019] FamCA 85 |
| CHILDREN – Parental responsibility – Where the parents have equal shared parental responsibility for their child – Where the parents are unable to agree about which school their child will attend – Where one of the child’s half siblings attends the school proposed by the mother – Where the mother is primarily responsible for delivering and collecting the child from school – Where it is not practical for the mother to travel to the school proposed by the father – Where if the mother was required to travel to the father’s proposed school it would likely place great strain upon her and impact her capacity to parent the child – Where an order is made for the child to attend the school proposed by the mother. |
| Family Law Act 1975 (Cth) ss 60CA, 60CC |
| APPLICANT: | Mr Sandison |
| RESPONDENT: | Ms Thornhill |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | NCC | 1503 | of | 2016 |
| DATE DELIVERED: | 25 February 2019 |
| ORDERS MADE: | 29 January 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Johnston J |
| HEARING DATE: | 29 January 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Dura |
| SOLICITOR FOR THE APPLICANT: | Lander & Rogers (Sydney) |
| COUNSEL FOR THE RESPONDENT: | Ms Carty |
| SOLICITOR FOR THE RESPONDENT: | Lindeman Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Tin Legal Aid NSW |
Orders made 29 January 2019
That the Application in a Case filed on 18 December 2018 is dismissed.
That the mother shall enrol X born … 2013 (“the child”) in B Primary School in Suburb C.
That the father be restrained from withdrawing the child from B Primary School.
I reserve providing reasons for judgment.
That the mother’s application for costs be dismissed.
BY CONSENT paragraph 2 of the orders made on 30 April 2018 be varied at paragraph 2.1 to replace “D School” by “B Primary School, Suburb C”.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sandison & Thornhill has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: NCC 1503 of 2016
| Mr Sandison |
Applicant
And
| Ms Thornhill |
Respondent
REASONS FOR JUDGMENT
Introduction
X (“the child”) was born in 2013 and is therefore five years of age. His parents are Mr Sandison (“the father”) and Ms Thornhill (“the mother”).
The parents have been unable to agree at which primary school the child shall be enrolled. The father seeks orders which would require the child to be enrolled at D School. On the other hand, the mother seeks orders that the child be enrolled at B Primary School in Suburb C.
A determination of this issue was urgent in circumstances where the child was due to commence school on 30 January 2019 which was the day following the hearing. Accordingly, at the conclusion of the hearing on 29 January 2019 I made orders permitting the mother to enrol the child at B Primary School and reserved publishing reasons for judgment. These are the reasons for the orders made.
Background
The brief background facts are as follows.
The parties commenced a relationship in December 2011. The father asserted that they never cohabited. The mother said that the father moved into her apartment at Suburb E at approximately Easter 2013.
It is common ground that, whatever its nature, the parties’ relationship concluded in late 2015.
The father has four children from his previous relationship who are now all adults. They are:
·Ms F (28 years);
·Mr G (25 years);
·Mr H (23 years); and
·Ms J (21 years).
The mother has three children from her previous relationship. They are:
·W (14 years);
·Y (13 years); and
·Z (nine years).
The mother’s elder two children live primarily with their father and his partner in the Eastern Suburbs. Z lives with the mother. The mother, the child and Z live with the mother’s parents in Suburb K. There was some issue about this matter and I shall refer to it again below.
Orders were made by this Court by consent on 30 April 2018 including orders to the following effect:
·the child shall spend time with the father on a two week cycle as follows:
- Week 1 - from after school Thursday until 6.00 pm Sunday (i.e. three nights); and
- Week 2 – from after school Wednesday until 3.30 pm Friday (i.e. two nights).
·The orders also required the parents to enrol the child at D School each Wednesday, Thursday and Friday. The child has attended this preschool since the orders were made.
·The parents have equal shared parental responsibility for the child.
The mother has enrolled the child at B Primary School, Suburb C, to commence on 30 January 2019. I accept that the mother wrote to the father’s solicitor by email dated 13 November 2018 requesting the father to sign the enrolment forms. The father declined to do so.
Residence of mother, the child and Z
The mother said in her affidavit that Z lives with her and spends time with her father every weekend. At the commencement of the hearing the father expressed some doubts about this, his understanding having been that Z and the mother’s other children had been living with their father and spending time with the mother.
I informed the parties that I considered the question of whether Z is currently living with her mother to be of fundamental importance to the issue in the proceedings. I invited Mr Dura for the father to embark on some cross‑examination of the mother in respect of this. At this point, Ms Carty for the mother indicated that she would wish to file a proof of evidence from the mother setting out in more detail what her current circumstances are. The proof of evidence was prepared and brought into the evidence and the parties each had some limited opportunity for cross-examination.
In her affidavit sworn on 16 May 2018 the mother deposed that she and the child were currently living with her parents in Suburb K. But she said that the other three children were living with their father in his home in the Eastern Suburbs. During her cross-examination the mother said that at approximately that time she and Z’s father had a discussion during which Z’s father suggested to the mother that because Z was so young (compared with her teenage siblings) perhaps it might be better for the little ones, that is, Z and the child, to live together. The mother said that she agreed with this suggestion and that since May 2018 Z has been living with her and the child at the mother’s parents’ home at Suburb K.
The mother said in her affidavit sworn on 24 January 2019 that this year she intends to move back to the Eastern Suburbs where she has lived for most of her life. She said that she is looking for suitable employment so that she might be able to afford to rent accommodation in the Eastern Suburbs. She said that when her relationship with the father ended she moved back to the Eastern Suburbs living in Suburb L. She said that she stayed living there until 2018 when she moved into her parents’ residence at Suburb K.
As was pointed out by counsel for the father, the mother has given two different dates for when she moved into her parents’ Suburb K home. I accept that this appears to demonstrate some lack of care by the mother by giving inconsistent evidence. But I had a favourable view of her evidence overall and I accept that at a time between May and July 2018 the mother moved with the child to live at her parents’ residence at Suburb K and that Z is also living there with them. The mother said that she had to move from the Eastern Suburbs because she could not afford to live there.
I must say I have little confidence, based on the evidence currently before the Court, that the mother would be likely to achieve her stated ambition of returning to live in the Eastern Suburbs this year. In relation to her suggestion that she is searching for suitable employment, the mother put no evidence of any job application made by her or what her likely remuneration might be. She said during cross-examination that she had been a stay at home mum for 14 years and that prior to that she had worked in a professional occupation. Her current income consists of a single parent payment and child support received from the father for the child of $1,166.17 per month which is $269.12 per week. In my view, this level of income would not be sufficient to fund rented accommodation and this view is supported by the mother’s evidence that she wishes to find employment to enable her to do this.
In all these circumstances, I find that the mother and the child reside in Suburb K with Z at the mother’s parents’ home. I also find that the mother is likely to continue to live at her parents’ home for the foreseeable future.
Accordingly, I am considering the parties’ applications on the basis that the mother, Z and the child will be residing at Suburb K for the foreseeable future.
the child’s health - epilepsy
The child has the condition of epilepsy. The child’s condition is managed with the assistance of Dr M, Paediatric Neurologist at the N Hospital, Suburb C.
Dr M has identified the child’s main issues as being complex partial seizures, anxiety and needle phobia. Dr M has prescribed Tegretol medication. He has also developed a seizure management plan for the child when he attends school.
The Applicable Law
The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
An order permitting a parent to enrol a child in a particular school is clearly a parenting order. Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Primary Considerations
The first of the specific criteria are the primary considerations set out at s 60CC(2) of the Act. The first of these is the benefit to the child of having a meaningful relationship with both of the parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In relation to the first of the primary considerations whichever school the child is to attend, each parent will be involved in taking the child to school and collecting him from there which will add to all those matters which are relevant to the child having a meaningful relationship with each of them.
In relation to the second of the primary considerations, the protective consideration, it is difficult to see how this consideration would be relevant to the question of which school it is in the child’s best interests to attend.
Additional Considerations – s 60CC(3)
The additional considerations are set out in s 60CC(3) of the Act. I shall discuss the relevant evidence in relation to each of the additional considerations which are relevant as follows.
Subsection 60CC(3)(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
The mother said that for quite some time the child has had the expectation that he would be attending B School which is also attended by his sister, Z. The mother said that Z and the child play together all the time, that Z usually takes the lead and that one of their favourite games to play together is schools. The mother said that Z is usually the teacher but when the child recently obtained his new school shoes he made her dress in her school uniform and they pretended that they were at school together. Z made a calendar for the child which counted down days (in January) until the child was to start school.
I accept that on the part of the child, and probably also on the part of Z, that there was an expectation that they would be going to school together. This is hardly surprising because this is the mother’s preference and both children are living with the mother.
To the extent that this might be interpreted as some expression of a view on the part of the child, even if it was, given his tender age this matter would be afforded very little weight in my view.
Subsection 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
It is clear that the child has a close and loving relationship with each of his parents.
I am also satisfied that there is a close relationship between the child and his sister, Z.
Subsection 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long‑term issues in relation to the child, to spend time with the child and to communicate with the child
As indicated above, the parents have equal shared parental responsibility for the child. It could not be said that either of the parents has failed to take the opportunity to participate in making decisions about major long-term issues concerning the child. On the contrary, they have a poor relationship and have had to seek the assistance of this Court on occasion to make such decisions for them.
Subsection 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
As indicated above, the father is paying child support for the child.
Subsection 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living
As indicated above, the child has been attending at the D Pre-School since the orders were made on 30 April 2018. He has formed some friendships there and at least two of his friends will be commencing in the Kindergarten level at D Public School this year.
It was submitted on behalf of the father that this is part of a number of factors which amount to some consistency and stability for the child if he was to commence at D Public School. It was further submitted that the mother agreed to the order that the child be enrolled at D Pre-School and that this preschool is in fact a feeder to the D Public School.
The mother said that she agreed to this order thinking that this arrangement would only operate during the child’s preschool year, that “it was only preschool” meaning that if for practical reasons she was unable to deliver him to preschool at the appointed time in the morning this would be unlikely to have any serious effect on his education and development. I understand from the mother’s evidence that by agreeing to the child being enrolled at D Pre-School she was not making a commitment for him to subsequently attend D Public School.
The mother said that the child has three friends at Suburb C, whom she named, and that each of these friends would be commencing at B School this year. One would hope that by the child knowing at least three of the new pupils at B School this would assist in his transition to school. In my view, the fact that his older sister, Z, attends at the school would be likely to be a supportive and settling influence for him.
Subsection 60CC(3)(f) – the capacity of each of the child’s parents and 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; and
Subsection 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I shall deal with these considerations together.
Both parents are very capable parents and have a great love for the child. Each wishes to do their utmost to facilitate his education. Both have a very responsible attitude to the child and to the responsibilities of parenthood. There is no doubt that each parent is seeking to assist the child in the way they think will best nurture him and support him at school and in life.
In my view, however, it must be acknowledged that the mother is the child’s primary parent and certain practicalities flow from this in terms of the child’s schooling. Both parents will be responsible for delivering the child to, and collecting him from, school. But the mother will be doing much more of this than the father. As indicated above, the current orders set out the times during which the child will be in the care of each of his parents over a two week period. This arrangement operates during school terms. There is no issue that under this arrangement the mother will be responsible for delivering or collecting the child to or from school on 13 occasions over the two week period. The father will be responsible for this on seven occasions during the two week period.
The mother will have to meet her responsibility for this at the same time as she also attends to her responsibility as primary parent of Z. As indicated above, Z lives with the mother and the mother takes Z to her school, B School, most days of the week. The mother takes Z to school on weekdays arriving there at 8.10 am. If she was required to take the child to D Public School one option would be to drive him to D Public School and place him in before school care very early in order to enable her to deliver Z to her school by 8.10 am. Another option would be for her to first deliver Z to her school at 8.10 am and subsequently deliver the child to D Public School. But given the vagaries of the Sydney traffic there is no guarantee that she would be able later to deliver the child to D Public School on time. In any event, clearly considerably more effort would be required to accomplish the child’s deliveries and collections than if the mother simply conveyed the child with Z to the same primary school at B School.
The practical challenges for the mother would be even greater in the afternoons. This is because the mother not only has the responsibility to collect Z from school at 3.10 pm but she also has responsibility to collect her daughter, W, from her school at O School, Suburb P, at 3.20 pm and deliver her to dance classes on Mondays, netball training on Tuesdays and netball again on Thursdays. It appears to me that given these responsibilities it would be most difficult indeed for her to collect the child from D Public School in the afternoon at a time which would not involve him in a lengthy attendance at after school care. Even if the child were to attend after school care, the logistics would dictate that the mother would need to travel across Sydney Harbour on multiple occasions each afternoon on many days of the week to ensure that all children are collected from school and for W to attend her extra-curricular activities. In my view, this would be completely impracticable and not consistent with the child’s best interests because it would be likely to place a great strain on the mother and affect her capacity to parent him.
Giving consideration to the father’s responsibilities, he is a health professional. He works at Q Clinic, Suburb S and also at Suburb R. His schedule is that on Mondays he works half a day at Suburb S, on Tuesdays he works half a day at Suburb R, on Wednesdays he works from home. He works for half a day on Thursdays in Suburb S, and he works half a day on Fridays, I understand, at Suburb S.
Suburb S is not far from B School at Suburb C and should not present the father with difficulty in delivering or collecting the child. The exception might be his delivery on a Thursday which might coincide with a time when the father is scheduled to work. But this is pure speculation on my part and if this was the case, the father would need to make some arrangement to ensure that the child is delivered to school each second Thursday. Apart from this, the father’s responsibilities to deliver the child to school at Suburb C would not appear to me to be onerous.
Subsection 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant
As indicated above, the father is most desirous of the child attending primary school at D. There are, of course, a number of matters which would support such a decision in the absence of other relevant considerations. I shall discuss these shortly.
The father said that he would be prepared to do anything for the child. He indicated that on the basis that the mother would not be able to deliver the child to, and collect him from, D Public School he would be prepared to do the entirety of the deliveries and collections. This would mean that he would be prepared to arrive at the mother’s parents’ home each school morning that the child was residing with his mother and Z, collect the child, deliver him to school and then undertake the reverse after school.
In my view, such a level of commitment from the father, with all the inconvenience that it would likely cause him, reflects a most impressive commitment to the child’s welfare. But I would not regard such arrangements to be consistent with the child’s best interests. The parents have a very poor relationship and there was some suggestion that the father has a poor relationship with the mother’s parents. In any event, what the arrangement would involve, in my view, would be extremely intrusive on the mother, including in terms of her parenting. It is difficult to think otherwise than that it would be a recipe for further conflict between the parents which, in my view, would be likely to involve upset for the child.
In all the circumstances, in my view, it would not be in the child’s best interests to put in place such an arrangement.
It was submitted on behalf of the father that the mother’s application should be rejected because she has not established how any school fees or costs would be met if the child was to attend B School. In her Response the mother had sought an order that the father pay all costs for the child at the school. But the mother abandoned this part of her application and informed the Court and the father that she would not be calling on him to pay any school fees. It was submitted that the Court can infer that the mother will take responsibility for any fees and costs. I accept this.
Discussion
Matters which would tend to support the child attending D Public School are as follows.
Both parents live on the lower North Shore of Sydney, the mother at Suburb K and the father at Suburb S. D Public School is close to both residences.
The child attended D Pre-School in 2018 and some of his friends from preschool will be attending D Public School in 2019.
The opportunity to engage in extra-curricular activities offered by D Public School would enable the child to develop friendships in the local area and assist him in feeling he is part of a supportive community.
She child attends Suburb S Nippers and is engaged in swimming lessons at Suburb S. Some of his peers from D Pre-School also attend these activities with the child.
The child is not Catholic and might be required to be baptised in order to attend B School. The father does not agree to the child being baptised.
B School is some 16 km from the parents’ residences and would involve significantly more travelling time for the child each day.
The child has not lived in the area local to B School and has had less involvement with friends there than in the D area.
The father has spent significant amounts of time speaking with the child’s teachers at preschool and would continue to do this with his teachers at D Public School. The father said that it would be more difficult for him to do this with teachers at B School although I am not persuaded to this effect.
Matters which would tend to support the child attending B School are as follows.
His sister, Z, attends the school and she is excited about the prospect of the child attending her school. She is likely to be a very helpful support for the child.
Z lives with the mother and the child. The mother drives Z to B School on most days of the week. The trip takes less than half an hour. It would be much easier for the mother to deliver the child to the same school as that which Z attends. Otherwise she would be making two trips to primary schools before and after school which logistically would be significantly more difficult for her and for the child. As indicated above, because of the mother’s commitments to her daughter, W, after school it would be very complicated indeed for her also to interrupt those commitments in order to collect the child from a school on the other side of the harbour.
The mother would be engaged with one primary school rather than with two which would be considerably less complicated for her. She has been associated with B School since 2015 and is on the school Fundraising Committee. She has assisted teachers on excursions and has been on camp.
As indicated above, the father is a health professional and he works in Suburb S and Suburb R. The travelling time from Suburb S to B School is approximately 10 minutes.
The child has three friends with whom he plays weekly and all three will be commencing at B School this year.
The mother and the child attend B Church regularly. The mother took the child to playgroup at B Church between his ages of two and four years.
Conclusion
As indicated above, there would be numerous positive aspects to the child undertaking his primary school education at D Public School, including the fact that this is the general area where both of his parents reside. But the mother’s parenting commitments to her daughters, Z and W, are such that if the child was to attend D Public School, the mother would have significantly less time to support him in his education, his extra-curricular activities and his general development than if he was to attend the same school as his sister, Z, namely B School. And, in my view, it would be inevitable that the mother would have to place the child in before and/or after school care at D Public School for long periods in order to be able to fulfil her responsibilities to her daughters.
On the other hand, if the child was to attend B School in Suburb C, there would be no necessity for the child to attend before and after school care. The mother would simply be delivering him to, and collecting him from, the same primary school to which she is already delivering Z. The mother would be able to manage her commitments to the girls in the afternoons uninterrupted by any need to drive back across the Harbour to collect the child from school. The mother would be able to take the child to extra-curricular activities and more easily fit in the driving around the girls’ commitments because the majority of her driving would be confined to the same area for all the children.
As I have also said, in my view, the father would quite reasonably be able to deliver the child to, and collect him from, B School. This is particularly because of its proximity to Suburb S where the father would be working on most days when the child would be in his care. On each second Wednesday the father would be working at home at Suburb S but, in my view, it would not be too onerous for him to make the journey across the Harbour to Suburb C to collect the child from school.
In all these circumstances, in my view, it would be in the child’s best interests for his mother to be permitted to enrol him to commence at B Primary School, Suburb C.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 25 February 2019.
Associate:
Date: 25 February 2019
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