Ubilla & Knightley
[2010] FMCAfam 382
•20 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| UBILLA & KNIGHTLEY | [2010] FMCAfam 382 |
| FAMILY LAW – Child age 5 – parents have previously agreed that they should have equal shared parental responsibility for the child – parties unable to agree on which primary school child should attend – mother proposes private school with religious affiliations – father proposes state funded school – consent orders made on 22 February 2008 – orders provide for child to live in equal time arrangement once child commences school subject to them entering into a process of family dispute resolution to be concluded by the time child attains six years of age – best interests – reasonable practicality. |
| Family Law Act 1975, ss.4, 60B, 61DA, 65DAA |
| Re G: Children’s Schooling (2000) FLC 93-025 MRR v GR [2010] HCA 4 H & H (2003) 30 Fam LR 264 |
| Applicant: | MR UBILLA |
| Respondent: | MS KNIGHTLEY |
| File Number: | ADC 2436 of 2007 |
| Judgment of: | Brown FM |
| Hearing date: | 31 March 2010 |
| Date of Last Submission: | 31 March 2010 |
| Delivered at: | Adelaide |
| Delivered on: | 20 April 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bowler |
| Solicitors for the Applicant: | Diane Myers Pty Ltd |
| Counsel for the Respondent: | Ms Horvat |
| Solicitors for the Respondent: | Graeme D Hemsley |
ORDERS
The parties take all necessary steps to enrol the child [X] born [in] 2005 at the [School B].
The application and response herein be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Ubilla & Knightley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2436 of 2007
| MR UBILLA |
Applicant
And
| MS KNIGHTLEY |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Ubilla “the father” and Ms Knightley “the mother” are the parents of [X], who was born [in] 2005.
Accordingly, [X] has recently turned five years of age. As such, he has reached the age when he must shortly commence his primary school education.
Regrettably, the parties are bitterly deadlocked about which is the appropriate school for [X] to attend. The father’s preference is that [X] should attend a secular government funded primary school.
The mother’s preference is that the school should be one associated with a Christian denomination, and as such, should be a school which is broadly described, within Australia, as being a “private” school because fees are charged for attendance.
The issue has generated considerable controversy between the parties and much time and considerable resources, including the engagement of an experienced mediator, have been devoted to it. Notwithstanding these efforts, no compromise has been found and the issue falls to me to determine.
Currently, the father’s preference is that [X] should attend either [School A] or [School B], both schools operated by the South Australian Department of Education.
When the proceedings began, the mother’s preference was for [X] to attend [School C] or [School D], both of which are private schools.
In the face of the father’s strenuous objection to either of these schools, because of their allegedly fundamentalist nature, as a compromise, she now proposes one of two Catholic primary schools for [X]. Either [School E] or [School F].
The parties married [in] 2001 and separated in February of 2007, shortly prior to [X]’s second birthday. Thereafter, there were lengthy proceedings between the parties regarding [X]’s care, which were ultimately settled by way of a consent order on 22 February 2008.
The issue throughout those proceedings was the appropriateness or otherwise of what is commonly called a shared care regime for [X]. The father was in favour of such an outcome. The mother was more cautious about it, not only because of [X]’s tender years at the time but also because of her concerns about the father’s previous use of cannabis.
The orders of 22 February 2008 were comprehensive. They provided for the parties to have equal shared parental responsibility for [X]. Accordingly, the orders envisaged the possibility of [X] spending either equal or substantial and significant time with each of his parents, to utilise the terminology provided by Part VII of the Family Law Act 1975.
This situation was reflected in the orders. From the date of the orders, [X] was to live with his father for five nights per fortnight, the nights spread over weekends and weekdays, and for the remainder of the fortnight with his mother. The orders also made provision for special occasions to be shared between the parties.
However, once [X] started “school”, the orders envisaged the possibility of [X] being parented in a strictly equal time arrangement, subject to the proviso that such an arrangement be (presumably) in accordance with the recommendations of a “recognised child psychologist” to be engaged by them.
The specific orders concerned read as follows:
“3. That the parties do as soon as reasonably practicable engage in child inclusive family dispute resolution with such recognised child psychologist as may be agreed between the parties (and in failure of agreement within 21 days from the date hereof as may be ordered by this Honourable Court) with such dispute resolution sessions to occur as may be recommended by the said psychologist but not less than each 6 months until the said child attains the age of 6 years, the costs associated with the said sessions to be shared equally by the parties.
4. The parties agree to attempt further negotiations and mediation in order to facilitate the recommendations of the said psychologist and to exhaust all reasonable alternative methods of dispute resolution as may be reasonably recommended prior to any application being brought within this jurisdiction by either party.”
Although order 4 is expressed as an order, it is more reflective of a general intent, on the part of the mother and father, to avoid further proceedings, so far as [X] is concerned and, in so doing, for them to utilise the services of a child psychologist to ascertain what is likely to be the best outcome for [X].
In so doing, the parties appear to have wanted to be ‘child focussed” and to avoid the potentially deleterious consequences of adversarial litigation, which is not usually calculated to encourage an easy and trusting relationship between the parents concerned and, as such, is generally inimical to the ethos of a shared parenting regime.
These are laudable objectives but not always easy to put into practice, particularly when issues touching on human emotion and expectation are involved. Parents who have separated inevitably have issues of difference arising between them as a consequence of their separation. These areas of difference do not always diminish with the passage of time.
The orders of 22 February 2008 arose against the background of a family report prepared by Mr T, a psychologist, who observed each of the parties with [X] in January of 2008, when he was aged two years and ten months. Mr T recommended that “equal time parenting sharing considerations should be reviewed shortly before [X] starts attending school.”
No doubt, the prospect of [X] attending primary school seemed a long way away, to the parties, when the orders of February 2008 were made. These orders do not specifically address the issue of [X]’s schooling or education. Perhaps, as the tone of orders three and four suggests, the parties (and their legal advisors of the time) hoped that, as time passed, issues of contention would reduce and the parenting relationship between them would become easier.
Sadly, this state of affairs has not come about. The parties now lead different lives, with different preferences and priorities. In addition, they bring different personalities and backgrounds to the parenting of [X]. As a consequence, they each have different priorities and agendas in regards to how [X] is to be brought up, particularly in regards to the issue of education and religious instruction in particular.
Mr Ubilla has deposed that he regards himself as a “humanist”, who does not hold religious beliefs. As such, he professes to being opposed to “religious dogma and organised religion”. As a consequence, he opposes [X] attending any school associated with any religious affiliation.
The mother is a practising Christian, who currently attends [omitted] Church. [X] also attends this congregation from time to time. Accordingly, [X] attending a religiously affiliated school would be broadly in line with Ms Knightley’s own personal level of belief and religious orientation. She would not regard religious instruction for [X] as potentially harmful indoctrination, as would Mr Ubilla.
However, Ms Knightley’s preference for a religious school is posited on the basis of her view that a private school would provide a better quality of education for [X], both now and in the longer term. As such it is likely to be of incalculable benefit to him, quite possibly for the remainder of his life. She also wishes him to be part of a more supportive school community than she believes is likely to be offered by a government funded school.
Accordingly, the parties concerned have different expectations and aspirations for [X], as reflected by their different backgrounds and outlooks on life. As such, both parties can muster cogent arguments to support their respective preferences.
Mr Ubilla aspires to be fully involved in all aspects of [X]’s parenting, as he grows to maturity, particularly his education. It is Mr Ubilla’s case that he would not feel comfortable, because of his strong views about organised religion, about being involved in the community of a religious school, particularly one which he would characterise as being fundamentalist in orientation, as he would feel inhibited in mixing with other parents and teachers, at such a school, whom he would presume would hold religious views antithetical to his own.
From Ms Knightley’s perspective, a religious school is likely to provide a stronger and more committed school community than that provided at a state funded school. She believes that parents, who are committed to provide for their children’s education, at their own expense, very often involving considerable personal sacrifice on their part, are the types of individuals with whom she would like to mix. She believes they are likely to be the kind of parents who will share her ideals of the importance of maintaining a strong school community, which is likely to be lacking at a solely government funded school, where the community is likely to be more in flux and less committed.
These are complex issues of both philosophy and politics. There has been controversy, within the Australian community, for many decades about the merits of non-government and government schools respectively and the obligations of governments to fund schools generally, including ones associated with religious denominations.
There have also been, in recent years, rigorous debates about what should or should not be contained in a general school curriculum to assure that Australian children have a rounded and appropriate education. Arguments have particularly arisen about what children should be taught about history, particularly Australian history.
In this context, it may be said that an understanding of the origins of religious belief, in a generic sense, has relevance to many aspects of history, politics and literature. To be a well rounded student, does one need to have at least a cursory understanding of the comparative tenets of Buddhism, Hinduism, Islamic and Christianity? Or, given the essentially Judaeo-Christian origins of many institutions in Australia, should that orientation be more focussed on the tenets of Christianity?
Underpinning these controversies is a deeper and more difficult one. When does the conferral of knowledge, about a particular religion or religious dogma, to a young mind, become an active form of proselytism? Is the line crossed with the singing of hymns; attendance at organised religious services; or the attendance at classes of specific religious instruction; or perhaps merely at the attendance at a religious school itself, no matter how otherwise “mainstream” is its general curriculum?
These are complex and controversial issues and I have no desire to enter into them. Australia is a multi-cultural society. It is unlawful to discriminate against a person on the basis of his or her religious belief or racial origins.[1] This multiculturalism is based on Australia’s history of being a country of migrants, as well as its aspirations to be a tolerant and inclusive society. As such, it is the home of a diverse range of citizens, who hold many varied beliefs and adhere to many different religions.
[1] See Racial Discrimination Act 1975 (Cth)
Indeed, pursuant to section 116 of the Constitution of Australia, the Commonwealth is prohibited from making any law for the establishment of any religion in Australia or in respect of the imposition of any religious observance on its inhabitants. The Constitution specifically prevents the Commonwealth from prohibiting the free exercise of any religion or religious belief within Australia. This section formalises the separation of church from state.
As such, it is highly regrettably that I must make a decision between the parties’ competing proposals, a decision which necessarily must involve some religious connotation, given the way the case has been presented and the differing views each party has in respect of the question of organised religion.
Although I may wish to avoid the issue of religion, in the determination of the case, I am unable to do, given the ground on which the father has vehemently opposed each of the schools, which are the mother’s preferred ones. Ostensibly, at least, he objects to each of the schools proposed not because of the quality of the education offered by them; nor the level of their fees; nor because of their location; rather he objects to them purely because they are each associated with a religious denomination.
In this context, particularly where the issue is of such apparent importance to both parents that they are each willing to expend considerable resources to it, both financial and emotional, I am fearful that my decision may be unwittingly influenced by my own subjective views about all manner of things, no matter how hard I try to grapple with my inherent biases, which flow from my own education, experience and background. It is not an easy issue to determine with the legal matrix provided by the Family Law Act 1975.
As I say, both parties can muster powerful arguments, as to why his or her position is to be preferred. Necessarily there is no right or wrong answer to the question posed by the parties’ competing applications. I must exercise a discretion, vested in me by the applicable legislation, which is to be informed by my view of how [X]’s interests will be best served in future. Different minds can reach different views about the issue involved and it is difficult to say one view has greater validity than another. This is especially so in respect of the parties’ competing proposals as to the best primary school for [X].
With these considerations in mind and given the contents of orders three and four of the orders of 22 February 2008, I indicated clearly to the parties that I was loathe to make the decision arising from their respective applications. Accordingly, I directed that they should engage an experienced mediator and psychologist in an attempt to resolve the issue consensually. I was of the view, which I still maintain, that it would clearly be in [X]’s best interests if the issue of his school could be resolved consensually by his parents rather than by court fiat.
If I make the decision required, it will create a perception that one party has triumphed over the other or that one parent’s views are more important or have more validity than the other’s. Inevitably, one of the parties will feel hard done by, by whatever decision I ultimately make. Such perceptions will not be helpful to the parties having a cooperative parenting relationship in future.
The mediator and psychologist concerned was Ms H. She saw the parties, on separate occasions, in February and March of 2010. No compromise could be found. On 11 March 2010, Ms H reported as follows:
“No agreement was reached with respect to [X]’s schooling since the parties maintained their positions where Mr Ubilla prefers the public school system and Ms Knightley prefers private schooling.
The parties were unable to reach agreement in relation to the option of equal shared care and remain in dispute around their communication regarding [X]’s developmental progress and management practices.
A judicial decision is required to resolve the schooling issue and it was suggested the parties might participate in a Family Assessment to address future parenting arrangements.”[2]
[2] See Annexure [1] to the affidavit of Ms R filed 16 March 2010
Accordingly, at this stage, both the issue of the appropriate primary school for [X] and whether now is an appropriate time to move to an equal time parenting arrangement for him remain live issues between the parties.
Regardless of my regret at having to determine this intensely personal and sensitive issue regarding the place and manner of [X]’s education, there must be a formal mechanism to resolve the various disputes arising between the parties, who are citizens as well as parents. One of the essential ingredients of a well ordered society is that it provides its citizens with mechanisms for the resolution of disputes between them.
The court’s decision making process, according to the rule of law, is one such mechanism, notwithstanding that the subject matter of the dispute concerned is idiosyncratic and deeply personal to both Mr Ubilla and Ms Knightley.
I am also well aware that the resolution I will impose on the parties will affect another person, who has not been heard by me, namely [X] himself. For obvious reasons, the issue of which school he will attends is likely to have significant and long term ramifications for [X]. It will determine who his friends are, certainly during primary school and perhaps for longer.
It may determine how well he does at secondary school, if either a solid educational base is laid down for him in his primary years or it is not. Thereafter, his aptitude at school may have implications for the type of career he pursues as an adult or whether he moves on to tertiary education and the form that education takes. These considerations may determine how financially secure he is in maturity and indeed whether he has a happy and fulfilled life or otherwise. In this sense I can understand how important the decision is perceived to be by both parties, particularly Ms Knightley.
However, I must also be careful not to imbue the decision with an importance out of proportion to the significance of the issue at hand. [X] is five. As such his educational potential remains a blank slate. More importantly both his parents love him and want the best for him. As such, whatever primary school he attends, his life and care will remain on an even keel. He will remain a much loved child, who is well looked after. At this stage of his life, from his perspective, this is the most important consideration – that he has a happy and unblemished childhood.
In cases such as this one, it is tempting to succumb, somewhat hysterically, to the aphorism attributed to Francis Xavier “Give me a child until he is seven and I will give you the man.”[3] It is unlikely that the present decision will have such far reaching consequences for [X]. Certainly, given [X]’s tender years, there remains ample scope for the parties to revisit the issue of which school he should attend, if either his circumstances change or it becomes apparent to either of them that a particular type of school is more appropriate for [X], given his individual needs, as they develop over time.
[3] The motto is the premise of the film series commencing with Seven Up, which follows the lives of fourteen British children, from various socio-economic backgrounds, at seven year intervals, from 1964 onwards. The explicit assumption of the various films being that the social class of each child involved at birth predetermines their future.
My impression, possibly mistaken, is that the school issue has taken on totemic significance to each party. The mother is convinced that a mistake now, as she sees it, may have the potential to blight [X]’s life, perhaps for ever. The father, long peeved at what he perceives to be the mother’s dismissive attitude towards him. is now determined to dig in over the issue because he feels the mother has ridden roughshod over his feelings once to often.
Without wanting to appear unduly dramatic, I am fearful that the issue is emblematic of the parties’ deep struggle with one another to gain mastery over the other, wherever issue to do with [X] arises, rather than to share together in his love and the joy of his childhood. This struggle is unlikely to be helpful to the maintenance of a good state of emotional health for [X], as he makes the often demanding transition into primary school.
At the end of the day, I am concerned that the price each party is prepared to pay to be, as it were, vindicated by the court, in respect of the issue of [X]’s schooling, is out of proportion to the significance of the issue for [X] himself in two senses. Firstly, it is not likely to be the major determining factor as to how [X]’s life turns out. Secondly, in not being able to reach an appropriate compromise, the parties may have done untold damage to their already fragile parenting consensus.
I hope, but fear otherwise, that the court’s resolution of the various issues in this case will not cause any undue deterioration in the parenting relationship between the parties and each will be able to cope with the decision, which must be made, so that any potential difficulties for [X] in future will be minimised.
The applicable legal considerations
The orders of 22 February 2008 are to be characterised as a “parenting order” by virtue of the applicable legislation contained in Part VII of the Family Law Act 1975. Pursuant to section 64B(2) a parenting order is an order which deals with the following issues:
·The person or persons with whom a child is to live;
·The time a child is to spend with any person concerned and the nature and extent of any communications between such a person and any child concerned;
·The allocation of parental responsibility for a child;
·If two or more persons share parental responsibility for a child, the form of consultation which those persons are required to have with one another prior to making decisions in the exercise of such responsibility;
·The financial maintenance of a child;
·The process to be used for resolving disputes about the operation of any parenting order; and
·Any other aspect pertaining to the care, welfare and development of a child or any other aspect related to the exercise of parental responsibility for that child.
In particular, a parenting order may deal with the allocation of responsibility for making decisions about major long-term issues arising in respect of any child [section 64B(3)].
Clearly, the orders made on 22 February 2008, in respect of [X], deal with many of the foregoing issues, particularly with whom of his parents [X] is to live and, to some extent, the process the parties are to adopt for resolving disputes about the terms or operation of the order concerned.
However, the orders do not deal specifically with the allocation of responsibility for making decisions about long-term issues in relation to [X]. Accordingly, the court must look to the Family Law Act 1975 to determine what are the legal implications of the parties having equal shared parental responsibility for [X].
The order that the parties should have equal shared parental responsibility for [X] was made was made by consent. I reiterate it was not an outcome which was imposed upon them. I would hope that the legal import of the concept of equal shared parental responsibility was explained and understood by each of them at the time the making of the orders of 22 February 2008 was contemplated.
The concept is not an empty shibboleth. Pursuant to section 65DA(2) of the Family Law Act 1975, it is the duty of the court to provide, with any order it makes, written details of any obligations which are created by that order.
Such a document was attached to the orders of 22 February 2008. It is headed “Parenting Orders – obligations, consequences and who can help”. In particular, on the document concerned, was the following paragraph:
“If the parenting order provides that two or more people have equal shared parental responsibility, any decision about a major long-term issue in relation to a child must be made jointly. This requires each person to consult with the other person and make a genuine effort to reach a joint decision.”
This statement is a reflection of the law contained in section 65DAC of the Act. This section requires parents, who share parental responsibility, to make decisions regarding major long-term issues in respect of their children jointly.
The onus placed on such parents by the provision being to consult with one another and make a genuine effort to come to a joint decision about any major long-term issues pertaining to their child [section 65DAC(3)].
Major long-term issues, in respect of a child, include issues related to that child’s long term care, welfare and development and specifically includes issues to do with the child’s:
·Education (both current and future);
·The child’s religious and cultural upbringing;
·Issues pertaining to the child’s health;
·The child’s name; and
·Changes to the child’s living arrangements which are likely to make it significantly more difficult for the child to spend time with a parent [section 4].
Accordingly, there can be no doubt that issues to do with which primary school [X] should attend and its associated religious implications is a major long-term issue pertaining to [X] and, as such, the parties have an obligation to both consult with one another about it and make bona fide efforts to resolve any disputes arising between them regarding such an issue.
Part VII of the Family Law Act is the part of the Act which deals with arrangements for the care and parenting of children. At the commencement of Part VII is a list of aims and principles, which the court is directed to consider to ensure that a child’s best interests are met through any parenting orders it makes.
The list of objects or aims of the legislation is set out in section 60B(1). They are as follows:
“(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
The principals or code of ideas, which underpin those objects, are set out in section 60B(2) and are as follows:
“(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
This is not a case concerned with parents who are likely to fail to meet their responsibility to parent their child properly. Thankfully, it is not a case centred on issues to do with the need to protect a child from neglect, abuse or family violence. In addition, it is clearly the case that both Mr Ubilla and Ms Knightley are parents who will remain meaningfully involved with [X] and so he will be a child who knows and is cared for by both of his parents.
In my estimation, both the father and mother are parents who are committed to the ideal that their child’s emotional and personal development will be enhanced if [X] grows up with the sense that both his parents are fully and equally involved in his life. Such an aspiration is consistent with the ethos of the Family Law Act 1975, as has been underlined above.
Clearly, the case does raise issues about the joint sharing of parental responsibility for [X] and the ideal that parents should agree about how their child is to be parented, particularly in respect of significant issues to do with the child concerned.
The concept of equal shared parental responsibility may perhaps be described as being utopian in its implications and, as such, difficult to achieve, particularly following acrimonious relationship failure, which necessarily must be in the background to the vast majority of applications brought to the court pursuant to the provisions of the Family Law Act 1975. The wounds caused by marital breakdown and the bruising litigation which sometimes follows do not always heal.
The Family Law Act was significantly amended by the provisions of the Family Law Amendment (Shared Parental Responsibility) Act 2006. One of the aims of this legislation was that it would make both parents and the court system generally more “child focussed” with the intent that both a child’s parents would remain involved in their child’s life following relationship breakdown.
One of the major impetuses behind the change in the legislation was the report of the House of Representatives Standing Committee on Family and Community Affairs Report following its inquiry into child custody arrangements in the event of family separation, entitled “Every Picture Tells a Story” which was released on 29 December 2003.
The House of Representatives Committee recommended that the focus of proceedings involving the Family Law Act 1975 needed to be directed towards mechanisms designed to ensure that both a child’s parents could and would remain involved in caring for their child after separation.
The House of Representatives Committee was concerned that the intent of amendments made to the Family Law Act 1975 in 1995, which had been intended to eliminate a sense that parents in family law proceedings were struggling to achieve some form of “ownership” of the child concerned, in priority over the other parent, had been largely unsuccessful. The committee wished the applicable legislation to be designed to reduce perceptions that one parent had lost a case involving the allocation of parental responsibility and that the other had necessarily won such a case.
The committee recognised that share parenting arrangements were not likely to be applicable to every family following parental separation. It described fully shared decision making as “the vision for post-separation parenting in the future.”[4] In particular, the committee said as follows about successful shared parenting:
“… it may not come easily to everybody, especially if the separation has been painful or acrimonious. There is a different call on parenting skills after separation.
‘It is not that the separating population have worse parenting skills; it is that separation imposes an assault on parenting capacity and it is conflict that drags parents down and compromises sorely their ability to be attuned to their children's needs’.”[5]
[4] See Every Picture Tells a Story : Report on the inquiry into child custody arrangements in the event of family separation. December 2003 Canberra at page 33
[5] Ibid at page 39. The latter portion of the extract is a portion of the evidence given to the committee by Professor McIntosh.
Accordingly, I must be careful not to characterise the parties as being, either singularly or collectively, failed parents or unreasonable people because they are unable to agree about the issue of [X]’s education, and the implementation of the shared time parenting regime. They are merely different – in character and personal orientation.
Inevitably this situation must lead to differences of opinion arising between them, particularly since the marriage between them has ended. An occurrence which, for obvious reasons, is likely to extenuate rather than diminish the potential for differences of opinion to arise between them.
However, the conflict between [X]’s parents has implications for [X]’s well being. Such conflict and a return to court two years after supposed final orders were made is not the “vision” of shared parenting, which the legislation envisages, particularly the objective that “parents should agree about the future parenting of their children.”
Parental conflict is potentially deleterious for children. At the extreme end, such conflict takes the form of family violence and, as is clear from the structure of the legislation overall, the court has a duty to protect children from the physical and psychological harm which may result from being exposed to such family violence.
Differences of opinion must arise in all areas of human intercourse, given the complexity of life and the differing perceptions of individuals. It is also a common human attribute to want one’s own way. No doubt successful parents, as with other individuals, have mechanisms to resolve the disputes which arise in all relationships – they attempt to persuade the other; they compromise; or beat a strategic retreat; – to name but a few strategies. Without wishing to appear condescending, it would appear self apparent that the facility for individuals to reach compromise, about all manner of issues, becomes easier with maturity.
It is when differences of opinion become entrenched and toxic between parents that they are likely to be psychologically detrimental to children, particularly young children, who are likely to become anxious and emotionally compromised, as a result of the nature of the conflicted relationship between their parents.
In a longitudinal study, funded by the Commonwealth Attorney-General’s Department, Professor McIntosh has studied the mental health of the children of separated parents. Amongst the factors, identified by Professor McIntosh and her colleagues, as leading to high levels of emotional distress for such children were ongoing, high level conflict between the parents concerned and ongoing significant psychological acrimony between the parents.
Professors McIntosh and Chisholm have reported on this data, and data from other Australian studies, in the context of the current family law legislation as follows:
“…the new Australian data suggest that shared physical care is an arrangement best determined by the capacity of parents to exercise maturity, to manage their conflict and to move beyond egocentric decision-making in order to adequately embrace the changing developmental needs of their children. When considering ‘the benefit to the child of a meaningful relationship with both parents’, considerable weight should be given to the need of the child for care and contact arrangements that protect them from parental dynamics otherwise likely to erode their developmental security. Here, the capacity of parents for ‘passive cooperation’60 and the containment of acrimony may prove to be central benchmarks.”[6]
[6] See McIntosh & Chisholm Shared Care and Children’s Best Interests in Conflicted Separation: A cautionary tale from current research (2008) 20(1) Australian Family Lawyer 3 at page 14
As I have already pointed out to the parties, I am concerned that the dispute between them over which school [X] should attend may be emblematic of an acrimonious and dysfunctional parental relationship, which has the potential to be harmful to [X]. Certainly, it is not indicative of the parties having a high level of capacity for mature and passive cooperation.
Clearly, in the context of whether there should be an extension of the time [X] spends with the father to the equal time arrangement envisaged, when he is of school age, the nature of the parties’ parenting relationship is a relevant consideration. In this context, the question for the court being “will a shared living arrangement in this parental context lead to an experience for the child of being richly shared, or deeply divided?”[7]
[7] Ibid at page 14
The question of which primary school [X] is to attend, like all issues pertaining to a child, is to be determined by reference to [X]’s best interests. The service of [X]’s best interests is the most important consideration in this case [Family Law Act 1975 section 60CA].
In determining where those best interests lie, the court must consider the primary and additional considerations set out in section 60C of the Family Law Act 1975.
There are two primary considerations – firstly the need to ensure that the child concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned.
The primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the family law legislation. However, in determining the outcome of a particular case, one or more of the individual considerations may come to the fore.
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
I am required to follow the same pathway in determining what is the appropriate school for [X] to attend. I must consider each of the matters set out in section 60CC(2) & (3), as they are relevant to the issue concerned.
Pursuant to section 60CC(3)(m), I am permitted to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed and an appropriate idiosyncratic order made.
There is no legal presumption in favour of one parent being able to make a decision pertaining to an educational issue, affecting a child, because the child concerned lives more with that parent than the other parent.[8]
[8] See re G: Children’s Schooling (2000) FLC 93-025
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA]. The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
Previously, the parties have agreed that the presumption of equal shared parental responsibility should be applied to them and [X]. As I have previously indicated, both parties aspire to be fully involved in [X]’s parenting, particularly so far as the making of major long term decisions pertaining to him is concerned.
Currently, notwithstanding the difficulty they have had in reaching an agreement regarding the issue of his schooling, neither party seeks the discharge of the order for equal shared parental responsibility and the implementation of an alternative regime whereby parental responsibility is conferred onto one parent more than the other.
In those circumstances, I do not believe that it is appropriate for the court to look behind the parties’ agreement that they should have equal shared parental responsibility for [X] and otherwise determine whether the presumption is rebutted by any of the considerations outlined in section 61DA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from s.65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child, not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[9]
[9] See MRR v GR [2010] HCA4 at paragraphs 13 and 15.
The history of the proceedings
The father commenced the current round of proceedings on 1 October 2009. He requested that his application be listed urgently. The reason for the urgency was that he wished the court to issue an injunction restraining the mother from enrolling [X] at the [School C]. It being his understanding that the mother was intent on [X] starting at the school from the start of term 1 of 2010, notwithstanding that he would not then be five years of age.
By way of final orders, the father sought the child’s enrolment at [School A] or such other school as nominated by the court. He also sought an immediate change to the regime inaugurated by the orders of 22 February 2008, by the adding of one extra night per fortnight to the periods [X] lived with him.
More recently, an issue has arisen as to whether the process of mediation the parties embarked upon with Ms H in February and March of 2010 has satisfied the intent of orders 3 & 4 of the orders of 22 February 2010 and it is therefore appropriate to modify the orders which stipulate [X]’s ongoing living arrangements.
The mother responded to this application on 24 November 2009. She sought orders that would permit [X] to be enrolled at either [School C] or [School D]. Her response was silent in respect of the issue of any modification of the orders controlling [X]’s living arrangements, other than that she sought that the father’s application be dismissed.
The parties’ competing applications came before me in a busy duty list on 27 November 2009. I was told by the parties’ respective lawyers that the issue of which school [X] should attend was an urgent and insoluble one, so far as the parties were concerned, particularly as a decision needed to be made in sufficient time prior to the school year starting at the end of January 2010.
This turned out to be partially true. Later it transpired that, given [X] would not be five years of age at the start of 2010, it was not mandatory for him to commence primary school at that stage. However, both the schools initially selected by the mother were able to accommodate [X] from the start of the 2010 school year and it was their policy not to accept children mid way through the year.
Accordingly, from the mother’s perspective, she was anxious to ensure [X] started school at the start of 2010 and from the father’s perspective, he was anxious to prevent [X] attend either of the schools in question because of their religious affiliations. In these circumstances, I allotted an urgent hearing date of 16 December 2009.
However later, after the hearing had commenced, I was told that, as [X] would not be five in February of 2010, he could apparently be enrolled to commence primary school as late as the start of the school year in 2011. However this late enrolment was the preference of neither party. It did however seem to me to undercut what was said to be the urgency of the situation.
In the formal order appointing the hearing, the matter is designated a short hearing. However, at this early stage, it was apparent to me that the issue held great significance for both parties. In those circumstances, I indicated that I was unwilling to determine the matter on the basis of considering the parties’ respective affidavits alone. Rather, I would require oral evidence from each of them.
Essentially, I told the parties that I wanted them each to tell me, in their own words, why the issue was of such importance to each of them. Thereafter their views and opinions could be subject to cross-examination by the other’s barrister, prior to a decision being made.
Although I was well aware of the importance of the issue of [X]’s education to both Mr Ubilla and Ms Knightley in general terms, I confess I underestimated the passion which each would bring to the hearing of the issue.
Mr Ubilla made it clear that he had particular objections to the two schools nominated by Ms Knightley. For her part, Ms Knightley was of the view that Mr Ubilla had “blown [the issue of her Christianity] out of proportion”.[10] As previously indicated, it is Ms Knightley’s position that the quality and the nature of the environment and community at a private school are more important to her than the religious content of the education per se.
[10] See Ms Knightley’s affidavit filed 24 November 2009 at paragraph 4
During the course of the evidence, it became apparent that Mr Ubilla had himself attended a private school, [School J], in Adelaide for a portion of his secondary education. He conceded that the quality of the education he had received at [School J] had been good and he had been fortunate to attend the school, which he described as being “non-sectarian”.
In these circumstances, by way of compromise, he proposed that [X] attend [School L], a Catholic school. From Ms Knightley’s perspective, although she conceded that [School L] was a fine school and she would be happy for [X] to attend it, she did not believe that she and Mr Ubilla would be able to afford the fees required.
It was also the tenor of her evidence that she considered that the offer had been cynically made by Mr Ubilla, as he knew the school was well beyond the reach of the parties financially. Overall, given the fact that he had himself attended a private school, with some religious associations, Ms Knightley asserted that Mr Ubilla was likely to be inclined to be difficult for the sake of being difficult, over the schooling issue, as was patent from his proposal of [School L], which he knew to be an unfeasible option.
In December, it also became clear that the degree of urgency in respect of the issue of [X] commencing primary school was not as pressing as it had at first been presented to be, particularly if he attended a government funded school, as the father preferred. However, given both parties’ work commitments, it was their mutual preference that [X] should start school sooner rather than later, as this would make care arrangements for him easier to manage.
The parties’ evidence also indicated that care arrangements for [X] were necessarily complicated due to his parents’ respective work commitments and the fact that their residential addresses were in different locations in Adelaide. It also seemed likely that both parents were considering changing their place of residence, particularly Ms Knightley, who was due to finish her [omitted] training shortly and enter the workforce.
During the course of the evidence, I was provided with a number of maps of the Adelaide metropolitan area, on which were marked the various locations which were important to each of the parties and potentially to [X], depending on where he went to school. The map was an eloquent demonstration of the practical difficulties surrounding the issue.
Given the concession that Mr Ubilla would possibly consider a private school for [X], if the school in question was not of an extreme or fundamentalist orientation and given that the issue did not have to be determined by the end of January 2010, as had been first been indicated to me, I thought it imprudent, on the part of the parties, that they leave the decision to me alone, particularly given that the own personal circumstances were in a state of flux.
After the half day hearing of 16 December 2009, during which each party eloquently and passionately described their preferred outcome in respect of which primary school [X] should attend, the proceedings were adjourned until 21 December 2009, in the hope that a suitable private school could be found for [X] which would be affordable but would not be too religious from Mr Ubilla’s perspective.
At the outset of the proceedings of 21 December 2009, I said as follows:
“From memory, what happened was that the parties were going to see if there was a private school with their price – their level of affordability, that would suit both of their commitments; that wasn’t of a religiosity, to use a phrase that I’ve just coined, that was of a level that was unacceptable to your client, Mr Bowler, but offered a community and standard of education which was acceptable to your client. Has such a school been found, from your point of view, Mr Bowler?[11]
[11] See transcript of 21 December 2009 at page 2
Mr Bowler, counsel for the father, advised me that no such school had been found which suited his client’s sensitivities. Ms Horvat, counsel for the mother, told me her client had found four private schools which were affordable and suitable from her client’s perspective.
The schools were firstly, [School F], in [Suburb D] in the suburbs of Adelaide. The fees being $2290.00 per annum. Ms Knightley had spoken with staff at the school, which could accommodate [X] from the start of term 2 in 2010.
Secondly, [School K], in [Suburb L], also in the suburbs of Adelaide with fees of $2,466.00. Again a place was available from term 2 onwards. Thirdly, [School H], again in the suburb with fees of $2,880. Fourthly and finally [School G], also in [Suburb F] with fees of $3,744.00. Besides the greater expense of this school, it also had a waiting list.
All these schools were closer to where the mother presently lives and further away from the father’s home and place of work. The distances ranging from two or three kilometre to up to twelve kilometres for the mother and from fifteen to twenty kilometres for the father.
The mother had also made inquiries with [School L] and [School N], another more expensive private school. She had been advised that the fees were between $7,000.00 and $11,000.00 per annum, which was far more than she could afford.
I was also advised that Mr Ubilla regarded the four private schools, as nominated by Ms Knightley, to have been put forward somewhat cynically and disingenuous, as, in a geographic sense, each school nominated suited her, so far as where she lived and expected to work. Mr Ubilla also objected to the schools on dogmatic grounds.
Mr Ubilla had apparently nominated a further four state primary schools which he regarded as being suitable. They were [School B] (close to [X]’s current pre-school); [School O], in the suburbs; [School P], also in the suburbs; [School Q], again in the suburbs and [Suburb E] in the inner north. However his preferred option remained [School A], near to his home. Each of these schools, apart from [School A], were closer to where he lived than those nominated by the mother but not appreciably so.
I found this exercise to be somewhat dispiriting and my perception was that the parties were still positioning themselves in accord with some ulterior motives, which were not strictly in accordance with issues to do with the public/private school divide and the dichotomy between religious and non-religious schools.
I said as follows on 21 December:
“…the parties need to find a compromise, because otherwise one will feel he or she has lost, and the other will feel he or she has succeeded, which will be unfortunate. And I suppose I get a little wearied by trying to move the dispute on and, at the bottom of my heart, not wishing to be cynical and sceptical…because I want to be open and encompassing and not feel that anyone has an ulterior agenda…but one gets to the point where perhaps one does think that this is a dispute that is about something other than the school and it is about making a point or being right or having one’s own way, which of course is inimical to the position that the parties have, which is that they should have equal shared parental responsibility for their child, which, as an essential element, is that they have to at least try and negotiate these matters and make a bona fide attempt to reach a consensus.” [12]
[12] Ibid at page 5
This was the background to my decision to adjourn the proceedings and refer the parties to Ms H. The parties were urged to see if they could find a private school, which was financially in reach and which would not offend unduly Mr Ubilla’s humanist convictions.
It also seemed to me to be sensible if the parties worked through the logistical difficulties of being co-parents of a primary school aged child, given their work requirements and residential preferences, and see if some compromise could be found around a metaphorical round table.
Given that both parties had committed themselves to the long haul of co-parenting and both were likely to have busy work lives for the foreseeable future, it seemed to me to be patently obvious that the parties themselves needed to find the school for [X] which best fitted their various requirements, which were not obviously strictly complementary.
It also seemed to me to be axiomatic that care issues for [X] were likely to become more rather than less complicated, as he moved through his primary school years. He would begin sporting and extramural activities. He would start to have his own social life involving his attendance at the birthday parties of his peers and other similar occasions. The parties would need to have a strategy to deal with the practical implications of these issues
As such, it seemed to be likely to me that the logistical difficulties for Mr Ubilla and Ms Knightley, arising from them being co-parents, who lived in separate households were likely to become more pronounced with time. As such, I thought that the parties needed to consider these issues in the choice of school for [X], as well as mechanism to sort out these types of practical issues, when they inevitably arose.
I suspect that the parties have parented [X] in parallel rather than in tandem up until this stage. By this I mean that, although Mr Ubilla and Ms Knightley are committed to [X]’s long term welfare and both have his best interest to heart, they do not parent him either consultatively or empathetically with one another. Sadly, they do not particularly like each other and this is reflected in their inability to communicate well together.
Accordingly, when they parent [X] each feels that he or she has the full authority to make all necessary decisions about [X], relating to [X]’s time with each of them, independent of the requirement to have any reference to the other. In terms of day to day issues, this dichotomy in [X]’s life does not matter.
Pursuant to the applicable legislation, parents have authority to make decisions, about day to day issues to do with their children and so do not have to consult with one another about them [section 65DAE]. Clearly, it would be both absurd and oppressive, if separated parents had to consult with one another about all the day to day minutiae and inconsequential decisions affecting their child from time to time.
However, as this present case illustrates, difficulties arise when the parallel paths of parenting collide because a parenting decision must be made which affects each of the parents and the child concerned in both of the respective homes. In such circumstances, the parallel mode of parenting is often found wanting, particularly because it is not particularly amenable to mechanisms for resolving disputes, which cut across the parenting divide.
To use a clumsy metaphor, the parties in this case appeared to me to be travelling down the same highway with one another, in their parenting of the [X], with the same destination in mind – their child becoming a happy, well adjusted and well educated adult, after having had rich and fulfilling childhood. However, they travel the journey in separate vehicles, in separate lanes of the highway, divided by an unbroken white line.
The difficulty with the metaphor, as with the case, is that the child concerned must regularly pass between his parents’ two vehicles and be a passenger in both. Problems will arise when one parent wants to take a deviation from the main parenting route, of which the other disapproves.
Regrettable the hope of a compromise proved illusory, as the mediation was unsuccessful. It was against this background however that Ms Knightley moved away from her first two preferred schools and proposed two private Catholic primary schools, which she considered were within the financial means of the parties. Mr Ubilla retreated to his initial position that a state funded primary school be utilised for [X]. It has also become his position that the mediation with Ms H has fulfilled the provisos of orders 3 & 4 of the orders of 22 February 2008 and it is appropriate for the parties to move to a shared care arrangement for [X], as envisaged by order 2(b) once he starts at primary school.
The matter returned to court on 31 March 2010, when I was advised of the failure of the mediation. I was also advised that the parties agreed that it was appropriate for [X] to start school at the commencement of the second term of the 2010 school year. Ms Knightley had also filed a further affidavit which set out what occurred since the case had been in court in December of last year. Counsel for Mr Ubilla objected to the court reading the affidavit in question.
The Evidence
Ordinarily, a court, such as this one, should refrain from making adverse comments about a parent in the proceedings before it, unless it is specifically necessary to do so. It does not help children if the relationships between those who are influential to their care are inflamed by hurtful findings of fact, as a result of the court process itself.
I am well aware that it is difficult for me to form an accurate appraisal of the respective motivations of each of the parties in this case through the imperfect tool of assessing evidence provided in the artificial (and to many, intimidating) confines of the witness box and through the reading of formal and often professionally prepared affidavits. However these are the only tools I have.
Unfortunately, but for obvious reasons, the parties in adversarial proceedings, such as these, tend to emphasise, in the presentation of their respective cases, the failings of the other party concerned and minimise their own. In addition, the extreme emotion created by such proceedings, which involve the persons the parties to them hold most dear – their children – blur perceptions and recollections of past events.
For all these reasons, the court must be cautious about making findings of fact and must resist the temptation to stigmatise a parent for past behaviour unless it is absolutely necessary to do so.
However, imperfect though it may be, the process still requires an adjudication, which adjudication can only be made on the basis of the evidence presented before the court. Necessarily therefore, the court must form some impression of the parties and witnesses involved, including their likely level of truthfulness and the reasons why they have adopted the positions which they have, so this adjudication can occur.
Both parties seemed to be to be pleasant and intelligent people. They each struck me as being competent and caring parents. Certainly they are equally devoted to [X] and the service of his best interests. It is implicit in the positions of each of the parties that they acknowledge that the other has much to offer [X].
No matter what the parties had in common when they met and married, it now seems clear that they lead quite different lives, with different preferences and priorities. I would hope that these different personal emphases would add to the richness of [X]’s life, rather than detract from it.
That is not to say they do not each see some failings in the other’s personality or attitude towards the responsibilities of being a parent. The father regards the mother as being high handed in respect of decisions making in respect of [X] and dismissive of his role as [X]’s father.
The mother regards the father as lacking interest in the making of long term plans to do with [X] and as not wanting to communicate about them. She would see him as failing to be sufficiently proactive in respect of the making of those important decisions. She is an energetic person and would, I think, characterise the father as lacking drive in respect of these matters. My impression of her is that she is the type of person who, if she perceived there to be a vacuum about any particular matter, would not be slow to fill it.
The father would perceive this as bossiness. The mother as taking a necessary step or making a necessary decision expediently. I suspect that the father is likely to stew or dwell on such matters, whilst the mother quickly moves on, unaware that her actions have causes serious offence.
No matter what differences in disposition the parties have, they have one thing in common. They both struck me as being inclined to stubbornness.
a) The Father
Mr Ubilla has filed two affidavits in the proceedings.[13] He attended court with his parents. Although they did not file any affidavit material in case, they are clearly interested in its outcome. Mr Ubilla and [X] regularly live with Mr Ubilla’s parents at their home in [Suburb A].
[13] Filed on 1 October and 11 December 2009 respectively.
Mr Ubilla told me that “it was a real struggle getting on with Ms Knightley…we are not comfortable in each other’s presence…” It seems that the parties mostly communicate by means of text messages. The issue of education has been discussed in formal and somewhat acerbic letters.
Mr Ubilla was born [in] 1976. Currently he is employed as an [occupation omitted], in the [omitted] section of a [omitted] company. His place of employment is located at [Suburb N], which adjoins the south west corner of the square which constitutes the central business district of Adelaide.
The father initially deposed that his income was $58,000.00 per annum. However his oral evidence was that it had reduced between $3,000.00 and $5,000.00 per annum because less overtime was available to him due to the global financial down turn.
Currently, given the discrepancy in the parties’ income and the fact that [X] spends more time with the mother currently, Mr Ubilla is currently assessed to pay child support for [X] of $171.00 per fortnight. If and when [X] moves into a shared care regime, it is likely that this rate of child support will reduce. It may also reduce if Ms Knightley’s financial circumstances change.
It is a strong element of Mr Ubilla’s case that the parties cannot afford a private school education for [X] and it is foolhardy for them to commit themselves to providing such an education for him, from the age of five years onwards, particularly given their respective circumstances will inevitably change over the next ten to twelve years, during which period [X] can be anticipated to complete his school based education.
Essentially Mr Ubilla argues that it is premature for the parties to make such a potentially financially momentous decision, at such an early stage of [X]’s scholastic career, when there will be plenty of time to revisit the decision if and when circumstances change.
In addition, as has previously been indicated, Mr Ubilla objects strongly to schools which he regards as being sectarian or fundamentalist in orientation. He did not specifically define what he meant by these terms but I take it, in using these terms, he adopts their current usage as being indicative of religious denominations which are narrow-minded in the requirement of their adherents to follow the doctrines of their particular belief; and which require a strict adherence to fundamental beliefs, particularly in regards to the literal acceptance of scripture.[14]
[14] See the Concise Oxford Dictionary definitions for sectarian and fundamentalism respectively.
In his affidavit material the father indicated that he had been christened in the Lutheran Church but had never been a regular church attendee. Although during the parties’ marriage, he had respected his then wife’s religious views, particularly in respect of her regular attendances at church services. He deposed as follows:
“I now have strong humanist views but do not hold religious beliefs. In fact I have become opposed to religious dogma and organised religion. I oppose religious dogma being thrust on young minds. I have seen the evidence of people who profess to be Christian and then act in a manner which can best be described as unchristian.”[15]
[15] See father’s affidavit filed 1 October 2009 at paragraph 8(d).
To his credit, Mr Ubilla has no intention of forcing his views directly onto Ms Knightley in the sense of intruding on what happens in her home so far as [X]’s attendance at church, whilst he is in his mother’s care. As such, it is Mr Ubilla’s view that [X] “gets more than enough religious input from his current home environment”.[16]
[16] Ibid at paragraph 8(f).
I do not doubt the sincerity of Mr Ubilla’s humanistic views. However, I do not think that they come from a deep rooted sense of conviction, which is the product of long study or consideration. In this sense, I do not accept that he has adopted the position, which he has out of a desire just to oppose Ms Knightley for the sake of it because he wants to be ornery or out of spite.
However, having found that he is not merely being difficult for the sake of being difficult, I am satisfied that Mr Ubilla does have a conviction that he has an entitlement to settle some long held grievances which he holds against Ms Knightley.
In this sense, it clearly continues to rankle with him that Ms Knightley apparently determined that [X] would attend [Suburb B] Children's Centre, once he began at kindergarten, without any consultation with him. He complains that he was not able to accompany [X] to his first day of pre-school and the authorities at the school were not informed of his interest in [X].
[School B], as previously indicated, is more proximate to Ms Knightley’s current home in [Suburb J]. The implication being that Ms Knightley choose the pre-school unilaterally to suit her own convenience in disregard of Mr Ubilla’s feelings and interests. In this sense I am concerned that he has adopted the position he has in these proceeding in an attempt to pay back Ms Knightley in the same coin.
In the course of preparation of her case, Ms Knightley has attended at both [School D] and [School C]. She has spoken with staff at the schools and viewed their facilities. She also has invited Mr Ubilla to inspect the schools to see if this will put his mind at ease. Copies of each school’s prospectus have been provided to the court and to Mr Ubilla. Ms Knightley is critical of Mr Ubilla for not at least trying to hold his prejudices in abeyance to see, for himself, if there is anything at all worthwhile about either school.
Mr Ubilla has viewed these documents and remains concerned at what he considers a fundamental aspect to each school. He has not visited the schools or spoken directly to staff. [School C] is described in its prospectus as providing a “Christ-Centred Education” and its aim is said to encourage students “to be disciples and servants of Christ and stewards of their God given gifts and abilities”. The school is also said to emphasis “the truth of the Scriptures and the reality of God”.
[School D] is said to be dedicated to Jesus Christ and the teaching of God’s Word, as well as developing a Biblical world view. Its prospectus also notes that “embracing the Christian faith is an individual and personal matter”. Nonetheless the school indicates a wish to co-operate with “Christian parents”.
Given Mr Ubilla’s views, I can understand why he would find these sentiments disquieting. I am not in position to make a finding that any student of either school is necessarily going to be indoctrinated with any particular view of religion or that such a student’s relationships with other non-religious members of his/her family are liable to be undermined by attendance at the schools in question, as Mr Ubilla fears. However, to her credit, Ms Knightley is not forcing the issue in respect of either [School D] or [School C].
Currently Mr Ubilla has two places of abode. The end of the parties’ marriage apparently precipitated a period of financial austerity for each of them. In these circumstances, both returned to live with their parents. Mr Ubilla’s parents live in [Suburb A], a suburb in the inner east of Adelaide. Mr Ubilla spends frequent periods of time, with [X], at his parents’ home. His place of work at [Suburb N] is readily accessible from [Suburb A].
For obvious reasons, [School A] would satisfy all of Mr Ubilla’s issues of personal convenience and preference. It is a government school and is very close to where he spends much time. His parents could easily assist in collecting [X] from school, which no doubt they would be delighted to do.
However, it is Mr Ubilla’s evidence that he lives principally at [Suburb G], an outer southern suburb of Adelaide, many kilometres from where Ms Knightley currently live in the north east of the metropolitan area. For self explanatory reasons, any of the schools nominated by Ms Knightley would be burdensome for Mr Ubilla if he lives predominantly at [Suburb G] and continues to work at [Suburb N].
Finally, Mr Ubilla himself attended a government primary school before attending a private school for his secondary education. He has no complaints about the quality of the education he received at his primary school. In his submission, there is ample time for the parties to revisit the issue of a privately funded education when [X] is older, as happened with him, with no apparent harm.
(b) The Mother
The mother has also filed two affidavits in the proceeding.[17] The father has objected to the court reading the second affidavit because of its recent filing. I propose to admit the affidavit, particularly as it provides some information about the two schools which are the mother’s current preference. In my view, it is to Ms Knightley’s credit that she is prepared to consider alternatives, given Mr Ubilla vehement opposition to her two initial proposals.
[17] Filed on 24 November 2009 and 26 March 2010 respectively.
Ms Knightley has adopted the position which she has because she believes the standard of education offered by private schools is generally superior to the education available at state funded schools. For this reason, it is her preference that [X] attends a private school as soon as he is able to attend school.
She herself attended state funded schools for both her primary and secondary education. She has deposed that she found her education lacking in several areas, particularly grammar and punctuation, spelling and reading. She left high school prematurely because she felt that she did not have a proper grounding in these areas.
The mother has worked casually at [organisation omitted] for around nine years. In particular she has worked at their branch located at the [organisation omitted]. To Ms Knightley’s credit, she has been able to successfully complete a tertiary qualification in [omitted], finishing her bachelor’s degree in December 2009. In these circumstances, I can understand why she should value educational attainment, particularly for [X].
Ms Knightley has provided NAPLAN results for both [School D] and [School C]. These are benchmark tests for students at Years 3, 5 and 7 in reading; spelling; grammar and punctuation; writing; and numeracy. The results for the schools are above state and national averages. It is Ms Knightley’s evidence, which is not specifically rebutted, that private schools generally produce better results, according to these standardised tests, for their students.
Such benchmark testing for primary and secondary school students is a highly contentious matter within Australia at present, particularly with the launch, by the Federal Government, of the My School website. Again this is a controversy I wish to avoid other than to say that I do not doubt the sincerity of Ms Knightley’s views about the validity of such testing and her opinion that private schools generally do better in respect of it and, as such, she believe that [X] will get a better grounding in the basics of literacy and numeracy at a private school.
Ms Knightley concedes that Christian values are important to her but, from her perspective, the quality of the education offered at a private school is a more important consideration to her than the religious orientation of any such private school. It is her perception that classes are generally smaller at private schools, certainly the ones she has investigated, and as such, they are more focussed on academic excellence and the creation of community spirit.
Accordingly it is also Ms Knightley’s position that she would like [X] to be part of the same school community from when he starts at primary school until he has completed his final year of school. Having seen her at close quarters in the witness box, I have no doubt about the passion and sincerity of her views in respect of the issue of [X]’s education. Like all parents, she aspires to her child having the best possible opportunities in life.
Ms Knightley will start full time employment, as a [occupation omitted], in the first part of 2010. Most likely she will work at a [organisation omitted] in the northern metropolitan area of Adelaide, probably the [organisation omitted]. Whilst she has been engaged in study and whilst her finances have been tight, she and [X] having been living with her parents at their home in [Suburb J]. In time, Ms Knightley would like to move into her own accommodation with [X]. She has no specific plans in this regard but, for obvious reasons would prefer to live close to where she will be working, perhaps [Suburb M] or [Suburb L].
Given her work commitments and financial constraints, it would be the mother’s preference that [X] start school sooner rather than later, a view she shares with the father. The issue of [X]’s education has been brewing as a serious issue of contention between the parties for much of 2009. Letters have passed been the parties and each has been jockeying for advantage in respect of it.
Ms Knightley struck me as a bustling and efficient person, who likes to get things done. She also seemed to me to have a fairly forceful and outgoing personality. She has been a great enthusiast for the merits of both [School C] and [School D]. She has visited both schools and spoken with members of staff there during the latter part of 2009. These discussions culminated in [X] being provisionally enrolled at [School C]. A matter which caused Mr Ubilla to take umbrage and consult his solicitor.[18]
[18] See Ms Knightley’s affidavit filed 24 November 2009 at paragraph 8-11
Mr Ubilla responded to the mother’s involvement with [School C] by approaching [School A] and enrolling [X] at that school. Ms Knightley learnt about this eventuality when she received an enrolment form in the mail.
Notwithstanding her own preferences, Ms Knightley arranged to attend [Suburb A] and meet the deputy principal there. She is impliedly critical of Mr Ubilla for not taking a similar proactive interest in the schools of her preference. It is also her position that she enrolled [X] at [Suburb B] Pre-school because this had been the father’s pre-school. She refutes any suggestion that she acted unilaterally in regards to the issue. Rather it is her position that the father seemed to be disinterested in the issue.
The mother’s position in respect of any modification to the existing living arrangements for [X] is as follows:
“…[X] is currently coping exceptionally well with the current living arrangements. I say that five nights a fortnight with his father is ample time for [X]. [X] is coping with this. Paragraph 2,3 and 4 of the Orders are specific and need to [be] complied with if the father wants to increase his time with [X]. I say the father wants to increase his time with [X] because this will decrease his child support payments to me.”[19]
[19] Ibid at paragraph 63
One of the few matters about which the parties agree is that [X] is progressing well at present. I hope this will continue to be the case. However the parties vehemently disagree about whether it is appropriate for [X] to move to spending an additional night per fortnight with his father, as a stepped progression on the way to an even time arrangement.
The mother acknowledges that the cost of a private school education is a significant issue and a bone of contention with Mr Ubilla. She anticipates that her annual salary will be in the vicinity of $47,000.00. She believes that given this factor and the existing care arrangements for [X], this will mean a decrease in the father’s child support liability of around $1,400.00, which can be utilised for school fees.
Ms Knightley has also gone as far as saying that, if the father is unwilling to contribute towards the cost of [X]’s private school education, she will meet all the fees herself. She provides this undertaking on the basis that she believes “so strongly that [a private education] is the right step for [X]”. However she also states, somewhat obliquely, that she is happy “for this issue to be assessed by the Child Support Agency”.[20]
[20] Ibid at paragraph 5
In her second affidavit, Ms Knightley has deposed that she is currently prepared to contribute between $2,500.00 and $3,000.00 per year towards [X]’s school fees. Given her level of income, this is a significant financial commitment on her part. Accordingly, I treat her proposal with some caution as I am concerned at the potential for her to become over committed, which may in the future lead to more rather than less conflict between the parties.
As a consequence, in my view, this possible divergence of views is unlikely to impact significantly either upon Mr Ubilla himself or on [X], particularly given the nature of the interactions Mr Ubilla is likely to have with such parents.
These interactions, presumably, will occur in settings such as at the side of a sports field; in a working bee at the school grounds; or at some other school function, which will be chiefly focussed on matters to do with the school and the students attending it.
In my view, such occasions are not usually conducive for discussions about significant matters of doctrinal controversy but rather are focussed on matters of parental commonality. Parents do not generally talk about the purpose or meaning of life at the school play or concert or the annual swimming carnival. They talk about their children.
Additional considerations
This is not a case which turns on [X]’s views or idiosyncratic preferences. He is too young to have any appreciation of what type of school he would prefer to attend. In any event, at his age, his parents are the persons, who should determine which school he should attend [see section 60CC(3)(a)].
[X] has a close and loving relationship with each of his parents. It also seems to be the case that [X] has relatives, on both his maternal and paternal aspect, who are anxious to spend time with him and extend and preserve relationships with him [see section 60CC(3)(b)].
In February of 2008, the parties agreed that they would have equal shared parental responsibility for [X]. As a consequence of this, they agreed on arrangements which saw [X] spending substantial and significant periods of time with his father. Ostensibly at least, this situation is demonstrative of both parties wanting to include the other in every aspect of [X]’s life, both day to day and long term.
Since the orders were made, [X] has spent significant periods of time with both his parents and appears to have thrived under the agreed regime. Accordingly, both parties acknowledge that the other parent’s significant involvement with [X] is essential to his well being and ongoing appropriate development.
However, I am concerned that both parties, perhaps unconsciously, aspire to assume the “whip hand” over the other in respect of issues to do with [X]’s care. In the tense situation, leading up to the institution of these proceedings, both parties appear to have unilaterally enrolled [X] at the school of his/her preference, in the vain hope that this would achieve some advantage for him or her.
On the other hand, it cannot be said that either party has, in any way, been unwilling to spend time with [X] or be involved in decision making about him. In this regard, I do not accept the mother’s assertion that the father has, in the past, left issues to do with [X]’s pre-school education exclusively to her because he is disinterested in such matters.
In my assessment, the mother’s perception that Mr Ubilla was unconcerned about the question of [X]’s preschool is more reflective of his personality and the deficits the parties have in communicating effectively with one another than the reality of the situation. As I have already indicated, Ms Knightley is likely to be the more proactive parent, in respect of such issues and Mr Ubilla to be the more reactive one. The parties have difficulty in engaging constructively about them. This does not mean Mr Ubilla is likely to be disinterested about such issues. The intensity of the current proceedings, indicates otherwise [section 60CC(3)(c) & (4)].
[X] must shortly commence primary school. It will be a major transition for him, which, of course, all children of his age must accommodate. In my view, whether [X] attends a Catholic or government primary school, will neither ease nor exacerbate the potential trauma involved in him achieving this important milestone.
The most helpful factor in assisting [X] to make an easy and happy transition to primary school is if he has the perception that both his parents are supportive of whatever school is ultimately nominated. Regrettably, this state of affairs cannot be guaranteed by choosing one school in preference to another, as whatever is the decision, one party is destined to feel hard done by. As I say, my impression is that both parties are capable of some significant level of stubbornness and neither is endowed with abundant sources of magnanimity [section 60CC(3)(d)].
No matter how the dispute between the parties is dressed up as being one concerned primarily with issues of ideology and belief, I think I would be naïve to think anything other than personal considerations of convenience and practicality are also significantly involved.
The mother’s life and work is centred in the mid to outer suburbs of the north and north east of Adelaide. The father’s life and work is centred on the south and east of the city. For obvious and understandable reasons, both parties would prefer a school for [X], which is easily accessible to each of them, given the many competing factors arising in their individually busy and complicated lives.
In this day and age, it is more the norm than otherwise, that both a child’s parents are engaged in the paid workforce. In addition, marital breakdown can no longer be regarded as a societal aberration. Following separation, parents frequently, often for reasons of financial necessity, have to move away from where they previously lived.
For obvious reasons, there is no principal of law that separated parents need to live indefinitely in close proximity to one another, effectively keeping their personal circumstances in a state of suspended animation. Indeed, one of the purposes of the family law legislation is to assist parties to make proper arrangements, for their children, following separation. These factors have implications for how children are parented following separation.
Necessarily, the period following separation is a process of adjustment and accommodation. These processes are likely to continue for many years as new relationships form, perhaps other children are born, and new priorities and imperatives appear in the lives of the separated parents.
Adelaide used to be described as the “20 minute city” because factors such as its level of population, when compared with other cities in Australia; its flatness; and linear road system; made car travel around it easier than in bigger Australian cities. Now, like every other city in Australia, Adelaide has to deal with the ever increasing pressures of traffic congestion.
If Mr Ubilla resides predominantly at [Suburb G] and [X] is attending a school in the north east of Adelaide, it will be difficult for him (Mr Ubilla) to collect and deliver [X] to and from school, particularly whilst he is juggling his work responsibilities. However, notwithstanding the potential drawbacks, it would seem to me to be a manageable, if not optimal outcome. The fact of this case is that, given where the parties currently choose to live, there is no perfect outcome available, which will be completely acceptable to each of them.
I can understand why Mr Ubilla has nominated [School A]. It satisfies all of his priorities but none of the mother’s. It is close to his parents’ home, where he spends frequent periods of time. His nomination of the school has the flavour of an ambit claim.
From [X]’s point of view, the most practical outcome would appear to be the [School B], which is near to the pre-school which he currently attends and close to the residence where he spends the most time. Up to this stage, both parties have demonstrated that they are able to cope with the practical implications of [X] attending school in this area.
Again, in my view, the choice of school and the practicalities arising, will not affect [X]’s right to maintain personal relations and direct contact, with both of his parents, on a regular basis [section 60CC(3)(e)].
In my estimation, whatever school [X] attends, the parties will ensure that they each remain an active and involved parent, regardless of the difficulties involved. This after all, is part of the “duty statement” of being a parent. It is often a difficult and thankless task, requiring personal sacrifice.
From both parties’ perspectives, the issue of parental capacity, particularly in terms of meeting [X]’s emotional and intellectual needs, is central to the case [section 60CC(3)(f)]. It is Ms Knightley’s case that she has demonstrated that she is a proactive parent, particularly in terms of [X]’s education, as is apparent from the number of schools she has visited and the number of inquiries she has made.
I accept that she is such a proactive parent. There can be no doubt that she is vitally interested in the issue of which school [X] should attend and fervently believes that a private school education, which is begun as soon as is possible, will ensure that [X] receives the best possible type of education and so will equip him to be a happy and useful member of society, in his adulthood.
Ms Knightley may be the more active parent, but, in my assessment, Mr Ubilla will also ensure that [X] has an appropriate level of education. I do not think it can be said that Mr Ubilla would ever neglect [X]’s emotional and intellectual needs, although in attending to them, he may have different areas of emphasis and interest to Ms Knightley.
In my view, the considerations arising under this criteria are finely balanced. Both parties aspire to [X] having the best and the most appropriate education, as he or she sees it. In addition, both love [X] “to bits”. Accordingly, both are able to meet his emotional needs.
In securing the best outcome for any child, the court is directed to consider matters relating to the child’s maturity, sex, lifestyle and background [section 60CC(3)(g)]. In considering background, I am directed to consider the culture and traditions of the child concerned and of his or her parents.
As Ryan FM observed in H & H[26] “there is great debate over the meaning and concept of culture. However, it is almost universally accepted that culture is learnt, rather than biological.” As a consequence, parents wish their children to actively learn about and to be exposed to the cultural background and practices which are handed down between the generations.
[26] H & H (2003) 30 Fam LR 264
One of the definitions of culture is the customs, civilisation and achievements of a particular time or people. Tradition has a wider definition meaning a custom, opinion or belief handed down to posterity.
In its strict sense, a lifestyle is the particular way or mode of life, which a person or a group leads. In this sense, no doubt, Ms Knightley would say that her practice of Christianity is part of her lifestyle. It is also part of the traditions and culture of a significant proportion of the Australian community.
Like many parents, Ms Knightley aspires to [X] following her lifestyle and adopting the religious and ethical framework, which governs her life. She believes that this will make [X] a better person.
Mr Ubilla, although sharing many aspects of Ms Knightley’s background and lifestyle, does not share her Christian faith. He wishes [X] to make up his own mind about issues of religious preference and is fearful about him being “indoctrinated”.
In my view, given that the parties had agreed that they should have equal shared parental responsibility for [X], it is important that he should be exposed to the range of views and beliefs, which his parents hold.
As I have already demonstrated, from figures collected by the Australian Bureau of Statistics, a significant proportion of Australians profess to be Christian and an equally significant proportion profess to have no religious belief at all.
In these circumstances, I do not think that the fact that his parents have different views about matters of religious orientation, will create some form of identity crisis within [X]. I suspect his situation is one shared by very many children, whose separated parents have different views about very many areas and issues.
In addition, in the circumstances of this case, I do not consider it essential in order for [X] to have a proper appreciation of his mother’s lifestyle, background and traditions, particularly her strong Christian views, that he should attend a Christian school, however particularised. In my view, by his regular attendance at Church and Sunday School, with his mother, he will have ample opportunity to be exposed to the tenants and practices of Christianity, particularly the Baptist faith which his mother follows.
In the overall context of this case, [X]’s age is highly relevant. Given that he is immersed in a largely secular world, it seems to me to be naïve on Mr Ubilla’s part, to think that [X]’s attending a Catholic primary school, of the type proposed by Ms Knightley, is likely to lead to his adherence to some particular form of religious belief for the remainder of his life.
The factors leading to the formulation of [X]’s own idiosyncratic beliefs are likely to be more complicated and multifarious than which school he attends at the primary level. In my view, [X] is just too young to be able to form any lasting level of religious conviction, at this stage.
In all the circumstances of this case, [X]’s tender years and the controversy surrounding issues of religious orientation at school, behove the court to take a cautious approach, which militates in favour of a religiously neutral or secular school for [X].
Given his age, five years of age, there remains plenty of time for him to receive a more intensive level of religious instruction, when he is older. In addition, he may have his own views in respect of the issue, when he is older and more able to pass his individual judgment on matters of religious preference.
Ms Knightley’s preference is that [X] should stay at the same school for all of his primary and secondary school years. If this course is adopted, it may lead to a situation which negates the need for further court proceedings, certainly in respect of the issue of [X]’s education [section 60CC(3)(l)]. It is usually better that steps are taken which avoid the possibility of further proceedings between parents, for the following reasons.
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
However, notwithstanding the desirability of the litigation being ended as soon as is possible, it seem imprudent that the final decision, as to which school [X] should attend for the remainder of his school career, should be made when he is just five years of age. In these circumstances, it seems preferable that as neutral a school as possible be selected, which may be changed, if and when circumstances change.
Necessarily, over the next few years, [X]’s circumstances will change. It will become clearer where each of his parents propose to live in the long term. The parties too will have a better idea of [X]’s intellectual strengths and weaknesses and what their individual financial circumstances will be in the coming years. Perhaps, most importantly, Mr Ubilla and Ms Knightley will develop a greater capacity and better skills to make these sorts of decisions regarding [X] consensually.
The essential irony of this case is that, if the parties had remained in a committed relationship with one another and a dispute of this kind arose between them, the court would have no jurisdiction to adjudicate it. It is not a matter which relates to a child protection issue. This being the sole basis for the law’s intention into how parents care for their children, whilst the family concerned is in tact.
In such circumstances, no issue of private law would arise and the parties themselves would be compelled to reach their own accommodation about the manner and place of their child’s education, no matter how intense the level of dispute between them about the issue. Essentially, they would not be in a position to abrogate their parental responsibility to the court.
Accordingly, at the end of a consideration of the specifically delineated criteria in section 60CC(2) & (3), the case remains finely balanced and no one consideration appears decisive. In these circumstances, I must turn to the generic criteria contained in section 60CC(3)(m) to see if there is any other relevant factor applicable, which will be determinative of the contentious issue of what is the appropriate primary school for [X] to attend.
In turning to this criteria, I am conscious of the dangers of allowing my own prejudices and issues to do with my background to intrude upon the matter, whether unconsciously or otherwise. I am aware that the sole determinative of the issue is [X]’s best interests.
Although much time has been spent on this case, I have practically no objective evidence regarding the academic merits of the two schools preferred by Ms Knightley and the two preferred by Mr Ubilla. Ms Knightley has deposed generally that private schools are superior. In response, Mr Ubilla has said that he has no quibble with the standard of education, which he received at his state funded primary school, when he was younger.
However, in my view, I have no cogent evidence before me from which I can conclude definitively that either [School F] and [School E] on the one hand or [School A] and [School B], on the other hand, are academically superior or inferior to one another. Accordingly, this cannot be a determining factor.
Although there are many laudable aspects to the parties’ parenting relationship, it is apparent to me that there are many problems in it, as is axiomatic from the present dispute between the parties. In these circumstances, I have come to the view that I should endeavour to select the school which I consider is least likely to further inflame the parties co-parenting relationship, in the hope that in future it will be more amenable to the parties making long term decisions to do with [X] consensually.
I accept that Mr Ubilla is deeply concerned at the prospect of [X] attending a religious school. However, given his acceptance of [School L], it may be the case that he will be accepting of the type of school preferred by Ms Knightley, at some stage in the future.
In addition, I do not think that, given [X]’s tender years, the selection of his primary school is likely to be determinative of how well he does in the remainder of his school career. Many children attend different primary and secondary schools. In addition, it is a common phenomenon for children to pass from the state based system into the private school system, after they have completed primary school or at some later stage.
The mother has said that the issue of [X]’s private school education is such an important issue to her that she will assume full financial responsibility for it. I do not doubt the sincerity of this position. However, in my view, if the mother does pay for [X]’s education, this of itself will be a source of grievance for her and an added irritant to the parties’ already inflamed relationship. This is a factor in favour of the court choosing a cost neutral school, at this early stage in [X]’s education.
In their respective preferences, both parties have largely focussed on their own convenience. In my view, the most geographically appropriate school from [X]’s own perspective is likely to be the closest school to where he currently attends preschool, which is also in handy proximity to where he lives with his mother.
Bearing all these considerations in mind, I have come to the conclusion that, at this stage, [X] should be enrolled in a state funded primary school. In my view, the most convenient primary school is the [School B] and I will order that the parties make arrangements for [X] to be enrolled at this school at the earliest opportunity.
Reasonable practicality – should the orders relating to [X]’s current living arrangements be changed at this stage?
As I have already indicated, the concept of equal shared parental responsibility deals only with the allocation of parental responsibility for a child and does not deal specifically with the time a child should spend with each of his or her parents.
What flows from the presumption is that the court is required first to consider whether a child should live with each of his parents on an equal time basis, subject to the child’s best interests and considerations of reasonable practicality and then, if such an arrangement is ruled out, consider a substantial and significant time arrangement, again subject to the same provisos.
In this case, [X] has two competent and loving parents. In these circumstances, it seems likely to me that it will be in [X]’s best interests to spend as much time as possible with each of his parents. However, that is not an end to the court’s responsibilities. I must also consider the matters outlined in section 65DAA(5) and determine whether such an outcome is objectively practicable based on the reality of the child’s family situation.
In this case, I have come to the conclusion that it is not reasonably practicable for [X] to live in an equal time arrangement, at present. The parties live a reasonable distance apart from one another. This, of itself, is not an unsurmountable problem to equal time, but the issue is a source of resentment which impact upon the parties’ relationship.
The parties do not communicate well. In my view, given the parties’ inability to reach a consensus about the child’s school, their future capacity to implement an ongoing shared care arrangement must be called into question. In my view, their relationship is a competitive and one, which lacks empathy. As such they have demonstrated a marked lack of facility to resolve parenting difficulties consensually. I hope it is not always so.
As [X] grows older, I would expect there to be more, rather than less areas of dissention between them. [X]’s life will become more complicated. He will make school friends. He will engage in sports and other activities. He will have to be collected from these activities and other social occasions. This will require more and more adhesion and cooperation between the parties.
Mr Ubilla is already spending substantial and significant time with [X]. In my view, the addition of a modest amount of time, at this stage, will not add significantly to the nature of his relationship with [X]. The addition of extra time is more significant to Mr Ubilla than to [X]. Further, the addition of the extra time and the process through which Mr Ubilla hopes to add it will of itself add to the tension between the parties.
I can understand why Mr Ubilla would want to pass seamlessly to his goal of equal time, which is envisaged in the final orders of February 2008. However, the orders do not authorise that mode of parenting on [X] attaining a strictly defined temporal milestone. Rather, the parties mutually decided to embark upon a process of “alternative dispute resolution”, which would involve the input of a suitably qualified expert in the hope that they could consensually move to this mode of care for [X] in the period leading up to his sixth birthday.
The import of the order is that they would be child focussed. Ms Knightley will be resentful if the spirit of the order is discarded and this, in my view, will add a further irritant to the parties’ already troubled relationship. Rightly or wrongly, litigation was to be a last resort to resolve the issue. For these reasons, I am not persuaded that it is appropriate to change [X]’s care regime at this stage, particularly as the parties absorb the aftermath of these proceedings and assimilate the changes involved in [X] starting primary school at the school nominated by me.
This process entailed in order 4 of the orders of 22 February 2008 requires the parties to “exhaust all reasonable alternative methods of dispute resolution” prior to bringing an application in the court. Given the tenor of Ms H’s letter of 11 March 2010, I do not think that the parties have completed such a dispute resolution process. To dispense with it now, in my view, will not help the parties to be more consultative parents. The focus of the proceedings has been on the issue of which school [X] should attend. It was at my instigation that the parties involved Ms H, once the proceedings had begun. This was not the exhaustive method of consultation which the orders envisaged.
The father seeks the formal dismissal of order 12 of the orders made on 22 February 2008. This requires him to provide urine tests for a period of twelve months following the orders. I can understand why the father resents the order but the fact remains that he consented to it in the first place. In any event, the timeframe stipulated by the order has concluded. In such circumstances, the order is self discharging, as it has no further application.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding three hundred and fourteen (314) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 20 April 2010