Swann and Burt

FAMILY COURT OF AUSTRALIA

SWANN & BURT

[2008] FamCA 1040

FAMILY LAW – CHILDREN – Which school a child is to attend

APPLICANT:

Mr Swann

RESPONDENT:

Ms Burt

FILE NUMBER:

PAC

6234

2007

DATE DELIVERED:

7 March 2008

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

STEVENSON J

HEARING DATE:

26 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Heazlewood

SOLICITOR FOR THE APPLICANT:

CA Williams Legal

COUNSEL FOR THE RESPONDENT:

Mr Sansom

SOLICITOR FOR THE RESPONDENT:

Watts McCray

Orders

That all existing parenting orders in relation to the child …, born … August 2002, [‘the child’] be discharged.
Pending further order, that the child live with the mother as follows:
2.1from the conclusion of school on Wednesday until 12:00 noon on Sunday in the first week of school term time and
2.2from the conclusion of school on Wednesday until 6:00pm on Saturday in the second week of school term time
2.3from 6:00pm on Christmas Eve until 2:30pm on Christmas Day in each year
2.4from 8:00am until 6:00pm on Mother’s Day in each year
2.5for one half of all school holidays, subject to those orders, being the first half thereof unless otherwise agreed.
Pending further order, that the child live with the father as follows:
3.1from 12:00 noon on Sunday until the conclusion of school on Wednesday in the first week of school term time and
3.2from 6:00pm on Saturday until the conclusion of school on Wednesday in the second week of school term time
3.3from 2:30pm on Christmas Day until 6:00pm on Boxing Day in each year
3.4from 8:00am until 6:00pm on Fathers Day in each year
3.5for one half of all school holidays, subject to these orders, being the second half thereof unless otherwise agreed.
Pending further order, that both parties forthwith do all things necessary to enrol the child at L Public School and to cause her to commence attendance at that school as soon as possible.
Pending further order, that the mother transport the child to L Public School on each morning of school term time and collect her each Wednesday, Thursday and Friday afternoon.
Pending further order, that the father or his nominee collect the child from L Public School each Monday and Tuesday afternoon.
Pending further order that, otherwise, the parent whose residence period is to commence pursuant to these orders will collect the child from the home of the other parent, who will collect her from the home of the first parent at the conclusion of that period of residence.
Pending further order, that the father pay to the mother the sum of $80.00 per fortnight to assist with her travel expenses.
That pursuant to s.65DA(2) and s.62B, 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.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 6234 of 2007

MR SWANN

Applicant

And

MS BURT

Respondent

REASONS FOR JUDGMENT

Mr Swann (“the father”) and Ms Burt (“the mother”) are the parents of a little girl, who was born in August 2002 and is now 5 years old. The child was due to start her formal education at the beginning of the 2008 school year. Because the father and the mother have failed to agree on which school she should attend, the child’s education will not commence until the court makes that decision for them.

PROPOSALS AND BACKGROUND

The mother lives with her father at P and proposes that the child attend L Public School. Her home is five minutes from the school and she and the child would walk there.
The father lives at R with his wife, Mrs Swann. He proposes that the child attend R Public School, which is about 600 metres from his home.
According to a printout from the internet annexed to the mother’s affidavit, the parties’ homes are approximately 52 kilometres and 37 minutes’ driving time apart. The father gave unchallenged evidence that it would take him 50 to 60 minutes to drive from his home to L Public School in the morning. He would travel in a van which he uses in the course of his work as a tradesman. His evidence was consistent with the mother’s estimate that it would take her approximately two hours to travel from R Public School in the morning peak hour.
Both the father and his wife work full-time. He is self-employed and has a degree of flexibility in his work hours. He is usually required to be at a particular factory by 8:30am and finishes work between 3:00pm and 5:00pm. His wife starts work at 8:30am and has some flexibility in her hours of employment. The mother is currently doing a TAFE course which will finish in approximately one month. She then intends to start her own business. She has no plans to move from the area where she presently lives.
Pursuant to orders made by consent on 7 February 2005 the child lives in a shared-care arrangement, with approximately equal time with each of her parents. She lives with her mother from 6:00pm on Wednesday until 12:00 noon on Sunday in one week and from 6:00pm on Wednesday until 6:00pm on Saturday in the other week. The reverse arrangement applies to the time she spends with her father.
The result is that the child spends Sunday, Monday and Tuesday nights with her father and Wednesday, Thursday, Friday and Saturday nights with her mother in the first week. In the other week, she spends Saturday, Sunday, Monday and Tuesday nights with her father and Wednesday, Thursday and Friday nights with her mother. Various proposals for the division of the child’s time between her parents emerged during the course of the interim hearing. The priority of each of the parties seemed to be to concede no perceived advantage to the other parent, in terms of the dispute as to ultimate division of the child’s time between them.
In his Application in a Case filed on 18 January 2008 the father sought that the child live with him and spend each alternate weekend from 6:00pm on Friday until 6:00pm on Sunday with her mother, on the basis that she would attend R Public School. By contrast, his Application filed on 13 November 2007 sought orders which would continue the February 2005 arrangements and see the child enrolled in R Public School. During the course of the interim hearing the father proposed that the child spend three out of four weekends, from 6:00pm on Friday until Monday morning with him if she attends L School. Further, he offered to contribute $80 per fortnight to the mother’s petrol expenses if there is an order that the child attend R Public School.
In her Response filed on 7 December 2007 the mother sought orders that the child attend L School and, by implication, that the current arrangements continue. In an Amended Response filed on 14 February 2008, the mother sought orders that the child live with her and spend alternate weekends with her father. During the interim hearing she proposed that she do the travel when the child is with her father and that he contribute to her petrol costs. Alternatively, she proposed that the time periods with each parent be reversed and that the father make a financial contribution to her travel expenses.
The parties and the child attended two meetings with a Family Consultant, Dr H, in January and February 2008. Dr H prepared a brief report dated 20 February 2008 and gave oral evidence by telephone during the interim hearing.

CONSIDERATION

The issue of which school the child should attend seems to me to fall within the definition of a “parenting order”, which means that I must regard her best interests as the paramount consideration. In determining what parenting orders are in the child’s best interests, it is necessary that I have regard to the primary and additional considerations set out in section 60CC.
In my view the primary consideration of protection of the child from abuse, neglect or violence has no relevance to the resolution of the present dispute. In the evidence which was relied upon before me, no such allegations appeared.
There is no doubt that the child enjoys a close, loving relationship with each of her parents. For the last three years she has had the benefit of approximately equal time with each of her mother and her father. As I indicated during the course of the interim hearing, I am of the view that the child’s best interests will be served if some arrangement can be structured whereby she continues to spend approximately equal time with each parent. Both the father and the mother expressed the view that the current regime has worked well but, nonetheless, they refused to work out for themselves what school the child should attend and what time she should spend with each of them.
I will now consider the evidence within the framework of the additional considerations set out in section 60CC. I will refer only to those factors which appear to me to be relevant to the determination of the issues before me.
Section 60CC3(a): any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views;
Dr H reported that the child expressed a preference to go to “her mother’s school”. Obviously, I place little weight on such a statement as an indication of a genuine and soundly based expression of the child’s views. Her age clearly suggests that she could not weigh up the advantages and disadvantages of one school over the other.
In the opinion of Dr H, the child’s expressed preference for “her mother’s school” “may well reflect a stronger attachment to her mother, whose parental contribution to the child’s welfare and development is in marked contrast to [the father’s]”. I accept Dr H’s evidence in this and all other regards.
Section 60CC3(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);
There is no reason to doubt that the child has a close, loving relationship with each of her parents. It may well be that she has a stronger attachment to her mother, as Dr H opined.
Section 60CC3(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;
It is apparent that the father and the mother lack respect for and trust in each other. Nonetheless, they have cooperated in putting in place a shared care arrangement for the child for the last three years.
The father seemed to adopt a more critical stance towards the mother that she does toward him. His negative views may well impact on the child’s right to a close, ongoing relationship with her mother if he were to become the primary residence parent. On the other hand, both parties seem to be willing to comply with court orders.
Section 60CC3(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;
I have referred already to the probable adverse impact on the child of a significant reduction of her time with one parent. Ultimately, the mother made various proposals for a continuation of a regime of roughly equal time. This concession on her part may well suggest that she has a greater appreciation of the likely effect on the child of the changes initially proposed by each of the parties.
I do not consider that the child would benefit from a significant reduction in the time which she spends with either parent. It seems likely to me that she would suffer from sadness and a sense of loss in these circumstances.
Section 60CC3(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;
Practical difficulties and considerations of expense arise from the fact that the parties live about 52 kilometres apart. The father and his wife have work commitments which limit their availability before and after school. The mother has more time available in the mornings and afternoons and, to her credit, she offered to take on the burden of travel in the mornings if the child attends R Public School. The distance problem is compounded by the fact that the morning trips will take place at a time when traffic is very heavy.
Although the mother’s proposal that she take the child to R School on some mornings would mean significant travel, it would provide an opportunity for the child to be with a parent rather than in before-school care. As Dr H said, there are advantages and disadvantages to before and after school care. I make no assumption either way but my focus is on ensuring that the child has the maximum opportunity to spend time with each of her parents.
The father offered to contribute to the mother’s travel expenses if the child attends R Public School and an arrangement similar to the present regime is continued. I can see no reason why he should not contribute if the child is at L Public School and an equal time regime continues.
If the practicalities of a continuation of the current arrangement, with the child at L Public School, are examined the result is as follows:
·The mother would travel to R and drive the child to L School on Monday, Tuesday and Wednesday morning and take her to school from her home each Thursday and Friday
·The mother would collect the child from school each Wednesday, Thursday and Friday
·The father would collect the child at L School and return to R with her each Monday and Tuesday.
If the child is at R Public School and the present arrangements continue, the result would be as follows:
·The father would take her to before-school care each Monday, Tuesday and Wednesday
·The mother would travel with the child to R each Thursday and Friday
·The mother would collect the child from R and return to her home in P each Wednesday, Thursday and Friday
·The father would collect the child from R School each Monday and Tuesday.
If the current time split is reversed and the child attends L Public School, the result is as follows:
·The mother would travel to R and drive the child to L School each Thursday and Friday morning and take her to school from her home each Monday, Tuesday and Wednesday morning
·The mother would collect the child from school each Monday and Tuesday
·The father would collect the child from school and return to R each Wednesday, Thursday and Friday.
If there were a reversal of the current times and the child attends R Public School, the result is as follows:
·The father would take the child to before-school care each Thursday and Friday
·The mother would travel to R with the child each Monday, Tuesday and Wednesday
·The mother would collect the child from R and return to P each Monday and Tuesday
·The father would collect the child each Wednesday, Thursday and Friday.
Section 60CC3(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;
Section 60CC3(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
I have real concerns as to the attitude and parental capacity of each of the parties, because they were prepared to keep the child out of school rather than yield a perceived advantage in the overall dispute to the other party. Their stubbornness and lack of focus on the child’s needs have cost her the opportunity to start school from the first day of kindergarten with her classmates. It can only be hoped that they will each now focus on the needs of their child and take the emphasis off “scoring points” against the other party.
Section 60CC3(m): any other fact or circumstance that the court thinks is relevant.
I cannot find that one school is preferable to the other, in terms of the child’s educational prospects. Both schools are in the public system and there was no evidence that either has superior facilities. Not surprisingly, each parent spoke in glowing terms of his and her choice of school. I attach little weight to this self-promoting evidence.

CONCLUSION

Nothing persuades me, or even suggests, that the presumption of equal shared parental responsibility does not apply or has been rebutted. The parties have had equal shared parental responsibility for the whole of the child’s life and I see no reason at all now to alter that position.
I am then required to consider whether equal time with each parent is in the child’s best interests. In my view, a continuation of the time split to which she is accustomed will promote her best interests, provided that the practical difficulties can be minimised.
Ultimately, therefore, the choice of school comes down to practical considerations. The father’s evidence was that he has more flexibility in the mornings than the afternoons. It is thus logical to select an option which will have him collecting the child in the afternoon more frequently than taking her to school in the morning.
If the current arrangements continue and the child attends LPublic School, the mother will take her to school each morning on the basis of her proposal that she will travel to R on the father’s days. She will then collect the child on three afternoons per week and go straight home to P. The father would collect the child on two afternoons per week and return to R.
This regime is not ideal but seems preferable to any other possible arrangement, whether proposed by the parties or which I can devise. I will thus make orders to that effect, provided that the 6:00pm handover on Wednesdays will be changed to the conclusion of school on that day. The orders will be interim in nature and await a fuller consideration of relevant evidence.

I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:

Date: 7 March 2008

[2008] FamCA 1040

7 March 2008

Key Legal Topics

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Family Law

Legal Concepts

Natural Justice

Procedural Fairness

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