Stevens and McLaren

[2017] FCCA 2960

FEDERAL CIRCUIT COURT OF AUSTRALIA

STEVENS & MCLAREN [2017] FCCA 2960

Catchwords:
FAMILY LAW – Parenting – application for child’s schooling – where the father seeks that the child go to a (omitted) primary school – where the mother seeks that the child go to a local public school – order for sole parental responsibility as to education for the child.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA & 65DAB.

Cases cited:

Banks & Banks [2015] FamCAFC 36

Bilz & Breugelman [2013] FamCA 578

Goode & Goode [2006] FamCA 1346; [2006] FLC 93-286
Maldera & Orbel [2014] FamCAFC 135; 52 FamLR 24
Marvel & Marvel [2010] 43 Fam LR 348
In the Marriage of Paisio (1978) 26 ALR 132
Re G. (2000) FLC 93-025
SS & AH [2010] FamCAFC 13
Wacando v The Commonwealth [1981] HCA 60; (1981) 148 CLR 1

Applicant: MR STEVENS

Respondent: MS MCLAREN

File Number: WOC 1030 of 2016

Judgment of: Judge Harper

Hearing date: 16 October 2017

Date of Last Submission: 16 October 2017

Delivered at: Sydney

Delivered on: 30 November 2017

REPRESENTATION

The Applicant: In Person

Counsel for the Respondent: Mr Wong

Solicitors for the Respondent: Watkins Tapsell

Solicitor Advocate for the Independent Children's Lawyer: Ms Faulkner

Solicitors for the Independent
Children's Lawyer: Legal Aid NSW Wollongong Family Law

THE COURT ORDERS THAT:

1. The child [X], born 2013, (“the child”) attend School B, commencing on the first day of Term 1 in 2018.

2. Until the child completes Year 6, the mother have sole parental responsibility for the child in relation to his education.

3. Within 21 days of the date of these orders, the father withdraw the child’s enrolment at School A.

4. Each parent be at liberty to contact the child’s school directly to inquire about the child’s education and welfare and to request documents that parents ordinarily receive that relate to the child or the school.

5. The father be at liberty to contact the school to arrange meetings with the child’s teacher, separately to the mother, at times that parents ordinarily meet with the child’s teacher.

6. Each parent is hereby restrained from attending, or causing or requesting their agent to attend, the child’s school at times that the other parent is to collect the child from or deliver the child to school.

7. Unless otherwise agreed in writing, the parties are to co-operate and take all necessary steps to cause the child to engage in Special Religious Education classes ((omitted) studies) for the duration of his primary schooling.

8. The matter be adjourned to 3 August 2018 at 9.30am for mention.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

WOC 1030 of 2016

MR STEVENS

Applicant

And

MS MCLAREN

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings between the applicant Mr Stevens (“the father”) and Ms McLaren (“the mother”) in relation to the child of their relationship, [X], born 2013 (“the child”).  Before me is an application concerning the school the child will attend when he commences primary school in 2018.

2. In summary, the mother is seeking that the child be enrolled in School B and the father is seeking that the child be enrolled in School A, and thereafter School C for secondary education. 

3. The Independent Children’s Lawyer is, largely, supportive of the orders the mother seeks.

Relevant procedural history

1. A contested interim hearing took place on 29 March 2017 before His Honour Judge Altobelli in the Wollongong Registry of this Court, after which interim orders were made for the child to live with the mother and spend time with the father one night each week and on a variety of special occasions until 7 July 2017.  After that date, the child began to spend time with his father on alternate weekends from Friday to Monday.  This is to continue until the commencement of Term 3, 2018.  After that date, the child is to spend time with the father each alternate week from Friday to Tuesday.

2. The interim orders of 29 March 2017 specifically permitted each parent to enrol the child in their respective schools of choice.

3. The matter was listed before me on 16 October 2017 for a further interim hearing limited to the question of which school the child shall attend when he commences kindergarten in 2018, in the event the parties were unable to agree.

4. At the hearing the father was self-represented with the support of a McKenzie friend. Mr Wong of Counsel appeared on behalf of the mother.  Ms Faulkner appeared for the Independent Children’s Lawyer.

Evidence relied upon

1. The father relied upon:

   a)His Affidavit sworn 18 September 2017;

   b)The Affidavit of Mr M sworn 18 September 2017; and

   c)The single expert report of Dr A dated 18 April 2017.

2. The mother relied upon:

   a)Her Amended Response filed 17 March 2017;

   b)Her Affidavit sworn on 15 September 2017 and filed 18 September 2017;

   c)The Child Dispute Conference Memorandum of Ms K dated 9 March 2017; and

   d)The single expert report of Dr A dated 18 April 2017.

3. The Independent Children’s Lawyer relied upon:

   a)The single expert report of Dr A dated 18 April 2017.

4. The following documents were received into evidence:

Exhibit Label	Document	Tendered by
A	Letter from the mother’s solicitor to the father dated 19 February 2016	Father
B	Copy of text messages between the mother and the father	Father
C	News Article from ABC News entitled “NSW teachers sacked for sexual misconduct nearly doubles over seven years, report shows”	Father
D	Document entitled “Kinder Overview” setting out curriculum from School A	Father
1	Child Support Online Notice dared 5 October 2017	Mother
2	Letter from School B to the mother dated 15 September 2017	Mother
3	Annexure -1 to the mother’s Affidavit (student activity book)	Mother

Relevant Law

1. An order regarding a child’s schooling is a parenting order.  Part VII of the Family Law Act1975 (Cth) (“the Act”) regulates parenting orders. Section 65D(1) provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of s.61DA and s.65DAB of the Act. Section 65DAB requires the court to have regard to the most recent parenting plan entered into between the parents. The parties entered into an agreement satisfying the definition of a “parenting plan” in s.63(1) of the Act (Annexure “D” to the father’s Affidavit). It was not a registered plan.

2. The decision in Goode & Goode [2006] FamCA 1346; [2006] FLC 93-286 set out a number of procedural and reasoning steps to be followed in deciding an interim application, namely:

   (a)     Identifying the competing proposals of the parties;

   (b)     Identifying the issues in dispute;

   (c) Identifying any agreed or uncontested relevant facts;

   (d)     considering the matters in s.60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e)     deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g)     if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;

   (h)     if equal time is found not to be in the child’s best interests, considering  making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;

   (i)     if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of  consideration of one or more of the matters in s.60CC;

   (j)     if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and

   (k)     even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

3. At an interim hearing the Court’s determination is based only on Affidavits read, documents tendered and submissions of the parties.  There is no provision at the interim stage for a more extensive hearing where evidence can be tested in cross-examination and where the Court can make findings of fact, after testing credibility and truthfulness.  The Full Court of the Family Court of Australia in Marvel & Marvel [2010] 43 Fam LR 348 at [120] observed that interim hearings and consequential orders are “a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing” and a conservative approach is adopted, and at [122] that findings made at an interim hearing should be “couched with great circumspection” following the Full Court of the Family Court of Australia in SS & AH [2010] FamCAFC 13 at [88].

Best interests of the child

1. The best interests of a child are the paramount consideration for the Court when making orders in a parenting matter (s.60CA of the Act) and are to be determined by an examination of the considerations as set out in s.60CC of the Act, weighed and applied within the ambit of the objects and their underlying principles as set out in s.60B of the Act.

2. It is convenient to consider the best interests of the children at this point.

3. Since this is an interim hearing, I approach the task of assessing the best interests of the children, guided by the propositions set out above and by what was said by the Full Court in Banks & Banks [2015] FamCAFC 36 at [48]-[50], as follows:

   [48] It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.

   [49]  … there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.

   [50]  When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

4. In accordance with this approach, and in light of the submissions and parties, I will concentrate on the decisive factors.

5. In relation to schooling, the leading authority is the Full Court of the Family Court of Australia’s decision in Re G. (2000) FLC 93-025. This decision has been followed many times. In Bilz & Breugelman [2013] FamCA 578 at [81]-[83] Austin J said:

   [81] Schooling disputes are not resolved by application of a “blanket presumption” or preference for the views held by the residential parent (Re G at [29], [45], [65]). The Court is required to apply the objects and principles of Part VII of the Act and to consider the statutory criteria in forming conclusions about the child’s best interests (Re G at [66]-[68]).

   [82] That is probably self-evident, but other more generalised observations were made by the Full Court. In particular, the process of evaluation should not entail an assessment of the relative merits of the schools preferred by the parties, at least in circumstances where the competing schools are prima facie satisfactory (Re G at [91]-[92]). Ordinarily, it will be in the child’s best interests to attend a school close to his or her residence, and further, it is proper to consider evidence as to any greater effect of the decision upon the resident rather than non-resident parent (Re G at [92]-[93]), but that does not mean the convenience of the non-resident parent is ignored (Eden-Proust at [56]-[63]). While the views of the child are relevant to the inquiry, as s 60CC(3)(a) of the Act now stipulates, those views are usually not determinative. That is because, unless a child is actively unhappy in a particular school environment, it is not at all unusual for the child to express a desire to remain at his or her existing school (see Re G at [96]).

   [83] There is conflict in the authorities about whether any prior agreement between the parties concerning the child’s schooling is influential (see Re G at [92]; Eden-Proust at [48]). There also seems a difference of opinion about the need to refer specifically to each of the factors enumerated in s 60CC or whether it is permissible to simply analyse the evidence discursively with those factors in mind (see Re G at [67]-[90]; Eden-Proust at [69]).

6. As will become apparent, religious questions are closely related to the issue of the child’s schooling in this matter.  I note here that the Courts have long adopted a neutral position with respect to issues of religion, whereby one religion cannot be preferred to another nor should a “religious” upbringing be preferred to a “non-religious” upbringing, or vice versa (see In the Marriage of Paisio (1978) 26 ALR 132).

Background

1. In light of the narrow issue for determination an extensive recitation of background facts is not necessary.

2. The Independent Children’s Lawyer helpfully provided a chronology which I incorporate by reference.

3. I note in particular that the parties began living together in 2005.  They separated in 2009 but reconciled in 2011.  The child was born on 2013.  The parties separated on a final basis in September 2015.

4. On 22 February 2016, the parties entered into a parenting plan (“the parenting plan”).  The parenting plan included an agreement that the child would attend School C for his secondary schooling. It did not deal with his attendance at any particular primary school.

Competing proposals

1. The father seeks orders for the child to attend School A commencing in Kindergarten in 2018 and remain enrolled until completion of year 6.  The father seeks a further order that the child be enrolled at School C for years 7 to 12 inclusive.  He also seeks an order that should the Court decide the child is to attend School B that he not be permitted to opt out of Special Religious Education classes.

2. The mother seeks, inter alia, an order for sole parental responsibility in relation to the child’s schooling and that the child be enrolled in and attend School B until the conclusion of primary school.

3. The Independent Children’s Lawyer seeks orders which largely mirror the orders of the mother, including an order for the mother to have sole parental responsibility in relation to the child’s education and for the child to attend School B until the commencement of the child’s secondary education.  The Independent Children’s Lawyer, however, also seeks that the primary school that the child attends can be changed following an agreement in writing between the parties.

Best interests of the child

1. It is convenient to consider the best interests of the children at this point. Findings and conclusions concerning the best interests of the child will be important in considering the application of the presumption of equal shared responsibility and thus the potential trigger of s.65DAA. In addition, as the decision in Goode & Goode (supra) makes clear, even if the presumption is not applied or is rebutted, then the Court makes such orders as it deems are in the best interests of the child, as a result of consideration of one or more of the factors set out in s.60CC of the Act.

2. The best interests of a child are to be determined by an examination of the considerations as set out in s.60CC of the Act. These factors are to be considered, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act.

3. I have taken account of the underlying principles set out in s.60B of the Act. It is not necessary to set them out verbatim in these reasons.

4. In considering the role to be played by these objects and principles in the determination of parenting orders I follow what the Full Court of the Family Court of Australia said in Maldera & Orbel [2014] FamCAFC 135; 52 FamLR 24. After discussing Wacando v The Commonwealth [1981] HCA 60; (1981) 148 CLR 1 the Full Court said:

   [75] … Thus, in its current form, s 60B does no more than provide context, indicate the legislative intention or purpose of the Part and otherwise operate as an aid to construction of the Part and the Act. It follows that we do not agree that the current s 60B can be used to change the ordinary and clear meaning of s 60CC or that where the s 60CC deliberations do not enable the court to determine whether or not a parenting order is in a child’s best interests, s 60B may be decisive.

Primary considerations

1. In order to determine the child’s best interests, the Court must first have regard to the “primary considerations” under s.60CC(2) of the Act. In the circumstances of this case, the primary considerations are not relevant to the question of schooling.

2. Many of the additional considerations are not relevant. I will discuss only those that are.

Additional considerations

(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;

1. In light of the child is young age, his views can carry little weight and there is little evidence of any such views in any event.

(b)     the nature of the relationship of the child with: (i) each of the child's parents; (ii) and other persons (including any grandparent or other relative of the child);

1. In addition to his submissions about the child’s older siblings, already discussed, the father submits that his current partner has twin children aged 3 who “get along very well” with the child.  The father argues that the child would benefit from attending school with the twins.  The father submits that the parents of the twins have made a parenting plan which includes sending them to School A.  He annexed a copy of this plan to his Affidavit.  However, the force of this copy document is undermined by the fact that it is both heavily redacted and unsigned.

1. The single expert, at paragraph 64 of her report, notes: “affectional bonds appear to be developing between [the child and the twins], which may be valued more highly by the twins than by [the child]”.

2. On the evidence available to me, it is not possible to form a sensible view about the long-term prospects of the father’s new relationship or the nature and value of any relationship, the child may form with the twins.  It is also not possible to form a view about the nature of the co-parenting relationship between the twins’ parents or whether the signed agreement about School A will actually be carried into effect.

3. I give weight to this consideration.

(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;

AND

(f) the capacity of: (i) each of the child's parents; to provide for the needs of the child, including emotional and intellectual needs; 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;

1. The obligations of the parents to maintain the child and their capacity to meet his needs are relevant.

2. It was common ground that the father would be responsible for the school fees should the child attended School A.

3. The mother seeks to impugn the father’s ability to meet this commitment.  She points to arrears in child support.  Additionally, the child has two much older siblings from an earlier relationship of the father, [A] and [B].  [A] completed his secondary education at School C in 2016.  [B] attends School C and will complete her secondary education there in 2018.  According to the mother, and conceded by the father, unpaid school fees remained owing at the date of the hearing to School C for the tuition of these older children. 

4. She submits that child support should take priority over school fees.

5. The father seeks to diminish the force of these arguments by proffering a guarantee by the paternal grandfather to cover any school fees for the child.  The mother pointed out that the value of any such guarantee relied upon the ongoing health, both physical and financial of the parental grandfather.  The Independent Children’s Lawyer submits that there was no evidence of the parental grandfather’s continuing ability to pay, bearing in mind that if the child was to be educated in the (religion omitted) system this would be for another 13 years.

6. The father also argues that he had returned to work in late August 2017 and was only behind in school fees because there had not yet been finalisation of a property settlement between the parties.  I am unable to form a view about this submission on the available evidence.

7. Overall, I am satisfied that the father has demonstrated an uneven capacity to meet child support obligations and to pay school fees.  I accept, however, that at present he has the financial backing of his father to fund private school fees.  On the evidence before me, however, I am unable to make a finding that this would continue until the child finishes primary school.

8. I give weight to this consideration

(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.

1. The lifestyle and background of the child are relevant.  The father was brought up in the (religion omitted) tradition.  This is clearly very important to him.  The father gives evidence that the child was baptised in the (religion omitted) faith.  He believes an upbringing combining education and faith to be essential.  He gives evidence that he is a member of a large (religion omitted) family extending over many generations.  His older children, [A] and [B], were both baptised as (religion omitted).  

2. Although the mother does not discount the child’s (religion omitted) background, she does not consider it to be important to the same extent.  She agrees to the child attending (religion omitted) studies within School B and for the child to take part in all (religion omitted activities).

3. The father submits that in the (religion omitted) education system the child will receive a more intensive religious structure.  Exhibit “D”, for example, shows that the child would receive 60 minutes of compulsory religious education per week at School A, prayers are standard at the start and finish of each school day and the child would participate in events such as (religion omitted) .  Such things would not be present in the state school system.

4. Moreover, the father submits that if the child attended School B his preparation for basic (religion omitted activities) would be compromised and he may not be able to answer basic questions about (religion omitted). The father firmly believes religious education should form an essential part of the child’s wider education.

5. The mother argues that the father can attend to the child’s religious education by taking him to church and other places or occasions for religious instruction.  She also submits that the child will have a broad exposure to (religion omitted) through the father’s family, who are strong adherents to the (religion omitted) faith.  I accept those submissions.

6. The mother also objects to the (religion omitted) education system because she alleges it is riddled with systemic abuse.  It was submitted on her behalf that this is a matter on which I can take judicial notice.  The father, for his part, alleges that the state education system is riddled with systemic abuse.  In my view, such generalised criticisms are of little assistance.  I have no evidence about the different specific schools proposed.  Neither party points to particular problems with either of the proposed schools which would demonstrate it is other than satisfactory.  In those circumstances, the authorities make clear that the process of evaluation should not entail an assessment of the relative merits of the schools preferred by the parties.

7. The maintenance of existing relationships is important. The single expert at paragraph [89] of her report says in part:

   The matter of [the child’s] school enrolment for 2018 needs to be settled before the end of the year, …  If [the mother] is to provide [the child’s] primary residence it will be most appropriate to select a school close of her home so [the child] can form and maintain peer relationships in his neighbourhood, ...

8. The mother gives evidence based on her direct knowledge that that the child would start at School B with other children known to him from his peer group and with whom he has existing relationships.  The father disputes this, but his evidence, being based on commentary from other people, is less convincing.

9. The mother also gives evidence that she has a known support group of other parents at School B but would not have the same support options if the child attended School A.

10. I give weight to this consideration.

(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

1. As already noted, this judgment deals with an interim hearing.  Interim orders will be made.

2. The father submitted that the court should take some account of the child’s secondary schooling.  As I understood the submissions of the mother and the Independent Children’s Lawyer, they seek interim orders dealing with the child’s primary schooling.

3. Orders which settle the entirety of the child’s primary and secondary schooling in this judgment may seem to have some attraction.  It could be said all parties, including the child, would know where they stand regarding education.

4. However, such an approach would fail to acknowledge the variable developmental trajectory a child may take.  It is not in the child’s best interest, bearing in mind he has not yet commenced primary education, to make orders about his secondary education at this stage.  Too much is unknown about his development.  The circumstances of the parties may undergo significant change in the next seven years.

5. I give weight to this consideration.

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

1. I have taken account of a number of other matters.

2. The father pointed to the parenting plan which contained the agreement about the child attending School C “from kindergarten”. The agreement regarding schooling in the parenting plan is a relevant factor:  see Re G (supra) at [92].

3. The mother gives extensive evidence that she entered into the parenting plan under pressure from the father.  She also alleges the father breached a parenting plan himself many times. This evidence is untested.  I do not ignore it but I do not give it great weight.

4. The parenting plan is not decisive. It is one consideration to take into account.  The best interests of the child are paramount.

5. Moreover, in my view on the question of schooling the orders made on 29 March 2017 are significant.  They were made by consent. They specifically provide for each parent to enrol the child in the schools each of them currently proposes.  This is inconsistent with adherence to the parenting plan.  In my view the 29 March 2017 orders supersede the parenting plan and leave at large the question of schooling.

6. The father also submits that his older children attend School C and it would be beneficial for the child to attend the same school. [A] completed his secondary education at School C in 2016.  [B] attends School C and will complete her secondary education there in 2018.  Clearly the child’s older siblings will both have left School C well before the child would commence secondary school.

7. The impact of the practicalities of each parent’s situation is relevant. There is no dispute that the mother is the primary carer of the child, although the child will spend substantial and significant time with his father each alternate weekend.  As already observed, the authorities make it clear that ordinarily it is in the child’s best interests to attend a school close to his or her residence.

8. The child lives predominantly with the mother.  This is also a relevant consideration, even if there is no presumption in favour of the school proposed by the resident parent. The single expert highlighted the importance of this consideration. I repeat the extract from paragraph [89] of the single expert’s report set out above: “If [the mother] is to provide [the child’s] primary residence it will be most appropriate to select a school close of her home so [the child] can form and maintain peer relationships in his neighbourhood…”

9. It appears the parties have not yet finalised a property settlement between.  The mother is living in the former matrimonial home.  She gives evidence at paragraph 13 of her Affidavit that intends to remain in the former matrimonial home.  The father disputes this and alleges she has not provided adequate disclosure and cannot demonstrate a capacity to retain the former matrimonial home on a final basis.  I am unable to reach a view about these competing contentions on the evidence before me.  However, I accept that the mother also proposes to remain in the School B area, even if the former matrimonial home must be sold.  She gives evidence that (Suburb omitted) is a “beautiful close knit community”.

10. The father’s evidence contains a number of printouts from Google maps and some analysis of the time and had difficulty involved in reaching either school from the current residences of each parent.  Both schools are readily accessible by car and public transport.  It is clear that walking is not a realistic option for the child to either school from the father’s residence, or to School A from the mother’s residence.  The walk from the mother’s residence to School B is about 13 minutes.  The evidence of the parties is consistent in that regard.

11. The father also gives evidence that School A is more easily accessible by the paternal grandparents on those occasions when they collect the child from school.

12. I find that the mother’s residence is close to School B and that school is accessible by foot.  I am satisfied that School B is close to the residence where the child will spend the majority of his time.

13. I give weight to this consideration.

Parent responsibility

1. Since these are parenting proceedings, the presumption of equal shared parental responsibility set forth in s.61DA(1) of the Act applies, unless I form the view that, since this is an interim hearing, it is not appropriate in the circumstances for the presumption to be applied (s.61DA(3) of the Act). I have formed such a view in relation to the child’s primary education. The evidence shows that the parents have a highly conflicted conflictual and acrimonious pattern of interaction which has severely compromised constructive co-parenting.

2. At paragraph 74 of her report single expert said:

   The parent’s relationship is too acrimonious and mutually distrustful for joint decision-making in the child’s best interests.  Case history indicates that their prior relationship was chaotic, conflictual and upsetting, neither seems to have resolved their emotional conflicts about the way in which their relationship ended, and each views the other’s behaviour in this disputed (sic) as motivated solely by hostile and egocentric motives.  There are significant differences in their priorities for the child and no effective communication.  If share and equal parental responsibility is ordered the matter is likely to keep returning to Court for disputes over major decisions (such as the child’s schooling or religious education).

3. Equal shared parental responsibility regarding all major long-term issues is not the subject of this interim judgment.  It is limited to the issue of education.  However, the very nature of the interim hearing indicates the intractable inability of the parents to agree.

4. The Independent Children’s Lawyer submits that without an order for sole parental responsibility concerning education, the parents will likely end up back in Court and the child’s education will remain a focus of continual warfare.  I accept that submission.

5. I propose to make an order for the mother to have sole parental responsibility in relation to the child’s education until the child completes Year 6.

Conclusion

1. Having considered all the material carefully as set out above and in light of my conclusions concerning the relevant considerations, I am satisfied that it is in the child’s best interests to make the orders as set out at the commencement of these reasons.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Harper

Date: 30 November 2017