W and G - [2005] FMCAfam 4

FEDERAL MAGISTRATES COURT OF AUSTRALIA

W & G

[2005] FMCAfam 4

FAMILY LAW – Children – change of school – children aged 10 & 6 – assessment of parties’ competing proposals.

Family Law Act 1975 – ss.60B; 65E; 68F(2)

B and B: Family Law Reform Act 1995 (1997) FLC 92-755
Re G: Children’s Schooling (2000) FLC 93-025

Applicant:

L O W

Respondent:

F E G

File No:

DNM 2727 of 2002

Delivered on:

14 January 2005

Delivered at:

Darwin

Hearing date:

11 January 2005

Judgment of:

Brown FM

REPRESENTATION

Counsel for the Applicant:

The applicant in person

Counsel for the Respondent

Ms T

Solicitor for the Respondent

J T B & S

ORDERS

That the mother be permitted to enrol the children L J W born 28 April 1994 and B A W born 14 December 1998 at the S H P S, W from the start of the school year in 2005.
That the applications herein be otherwise dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DARWIN

DNM 2727 of 2002

L O W

Applicant

And

F E G

Respondent

REASONS FOR JUDGMENT

Introduction

The parties to these proceedings are L O W “the father” and F E G “the mother”. They are the parents of two children, L J W born 28 April 1994 and B A W born 14 December 1998. The competing applications deal with which primary school the children should attend during the 2005 school year. The father wishes the children to stay enrolled at S P’s P S in N, which the children have each been attending since they started school. The mother wishes the children to attend S H P S in W, near to where she has recently moved to live.
As the start of the school year is only some weeks away it is necessary for a decision to be made urgently. Sadly due to differences between them, the parties themselves are incapable of making this decision for themselves and it falls to the court to choose between the competing applications.
It is a difficult and finely balanced case. Both the father and mother have strong and valid arguments as to why their particular position is to be preferred. Having observed both of them during the hearing, it is obvious to me that both parties are loving and committed parents who deeply wish the best outcome for their children from these proceedings. Sadly they have very different views as to how this can be achieved. In these circumstances it is regrettable in the extreme that such an important decision falls to the court to make.
Inevitably, whatever decision is made one party will feel that it is the wrong one and will feel aggrieved as a result. I am fearful that this will lead to the parenting relationship between the parties, already fraught with difficulties, becoming more tense and acrimonious. I hope that the parties will cope with the tensions that the resolution of the problem between them will inevitably bring so that any future difficulties for L and B will be minimised.

Background

The parties began to live together in the early 1990’s. They married at B in W A on 7 September 1996. They separated in May of 2001. The marriage between them was dissolved on 23 June 2003. After their separation the parties found it difficult to reach agreement in respect of arrangements for the care of L and B. Basically the father wished to share the care of the children with the mother on an equal basis with the children living with both their parents in alternating weeks.
The mother was of the view that such a shared care arrangement would be unduly unsettling for the children as the parties have different approaches to parenting. As a result she believed the children would find it difficult to move with such regularity between two very different households. She also pointed to the fact that she had been the primary carer of both children since the time of their respective births. As a result of these factors she proposed that the children continue to live predominantly with her and have contact with their father on alternate weekends and overnight on one occasion during school terms and for half of all school holidays.
As a result of their differences in view as to what was likely to be the best arrangement for the care of the children, the father commenced proceedings in this court on 15 November 2002. The mother responded to this application on 30 January 2003. The competing applications were ultimately fixed for final hearing in October of 2003 and a family report was ordered to be prepared.
The family report was prepared by Ms D K, an experienced paediatric psychologist. Ms K recommended that L and B continue to live with the mother and have regular contact with the father. It was her view that both children were securely attached to their mother and the parties themselves, due to their lack of a ready facility to communicate with one another were poor candidates for a shared parenting regime. In support of this contention, Ms K pointed to what she described as “marked levels of friction and distrust” between the parties which were of such a degree as to be likely to prevent them from being able to effectively co-operate with one another “to promote the children’s best interests”. Ms K was at pains to point out in her report that the father had “worked very hard to create a loving home for the children and has very positive and honourable values”.
To their great credit and in large part due to Ms K’s report, the parties themselves were able to agree on final arrangements for the care of their children. Consent orders were made by the court on 29 October 2003. The effect of these orders was that L and

B continued to live predominantly with their mother and had contact with their father during term time on alternate weekends from after school on Thursday until the commencement of school the following Monday and in the other week from after school on Thursday until the commencement of school the following Friday. The children were to spend equal amounts of time with their parents during school holidays. Arrangements were also made in respect of special occasions.
The orders also provided that the parties were to share jointly responsibility for making decisions concerning the children’s long term care welfare and development. An order was also made restraining each of the parties from relocating the children from the D/P area without the written permission of the other parent.
The father is employed as the manager of company that installs shade structures in the D and P areas. His office is located in W. He usually starts work at 7.30 each morning. He is provided with a company car to enable him to visit installation sites during working hours. His employer allows him some limited private use of this car. The father describes his employer as being supportive of his role as a father. On the occasions he has the children before and after school his employer allows him some flexibility to return and collect the children. However he is expected to make up for any lost time on the other days of the week. W is to the north east of the D Central Business District and closer to the northern suburbs of D than to P. Essentially the S Highway runs through W.
The mother is employed as a part-time theatre nurse by the D P H in T. She works on Monday, Tuesday and Thursday of each week. She starts work at 8.00 am on these occasions and usually finishes around 4.30 pm, however this depends on the length of the surgical list. As a result, the children regularly attend after school care. T is one of D’s northern suburbs.
During their marriage the parties lived at 16 H S, N. This property was owned by the parties themselves and by the mother’s father. On separation the father moved out of this property and moved to a rented property in J. The wife and children remained living in the H S property. Ultimately the wife purchased the father’s interest in the property. When he received the proceeds of this transaction, the father elected to purchase a small property for himself in nearby M. He wished to live in close proximity to the children. Other than for the children, it would have been his preference to live on the rural outskirts of D at H S and buy a house there.
The parties seem to have agreed that it was appropriate for the children to have a private catholic education. S P’s P S in N was the closest catholic primary school to their home in H S. L began her schooling at S P’s, in the transition class, in 1999. She finished year 5 at the school at the end of 2004. B started in the transition class at S P’s at the beginning of 2004. Neither child has ever attended any other school.
In May of 2004 the H S property was burnt to the ground. The wife and children lost nearly all they possessed and were rendered homeless. As a result the wife was compelled to find rental accommodation for herself and the children in W, a suburb near to N and although not as close to S P’s as the H S property still reasonably proximate. W and M are both in the northern suburbs of D and almost adjoin.
The H S property was insured but not as fully as the wife would have wished. The now vacant land at H S was however quite valuable to developers. As a result, the mother and her father elected to sell the land and claim the insurance money rather than rebuilt the family home at H S. Thereafter the mother looked around for a suitable house to purchase for herself and the children.
It is the mother’s case that her financial circumstances were such that she found the cost of acquiring similar accommodation to that provided by the H S property in either N or other of the northern suburbs of D prohibitively expensive. As a result she began to look for a house in the P area. P is a satellite town to D and a separate municipality. It is located approximately 20 kilometres from the D C Business District on the S Highway. The population of the municipality is approximately 25,000 which is housed in ten separately named suburbs[1], one of which is M.
[1] See P C C website.
In November of 2004 the mother purchased a 4-bedroom house with inground pool at 14 B C, M. She moved into the property only a few days ago. Because of her move, the mother wishes to enrol the children at S H P S, which is located at E A in W. W is also a suburb of P. It adjoins M. It is the mother’s case that it takes, at the most, about five minutes to drive from her home in B C to S H P S. It is her case that S H P S is overwhelmingly the most convenient choice of school for L and B.
The father is vehemently opposed to any change of school for the children, pointing to their long connection with S P’s in N where he believes they are happy and well settled. He believes that the proposed change of school is motivated solely by the mother’s convenience and gives no thought to the best interests of the children concerned. He is also concerned that the change of school will jeopardise his relationship with the children and make it difficult for him to maintain his currently high level of involvement with their day to day care, particularly in regards to some of their extra curricular activities. He points to the fact that he has arranged his own personal affairs, particularly the purchase of his current home at 39 M C, M, so that he can have as much contact as possible with the children.
This, in brief, is the background to the dispute currently before the court. The case presents no ready solution. The issue has created a considerable amount of heat between the parties and, I fear set back the prospects of them reaching a situation where they can expect to have a more amicable and co-operative parenting relationship with one another in the foreseeable future.
In his case the father points to the fact that the parties have joint responsibility for making long term decisions concerning L and B’s care welfare and development. He believes that the mother has acted high-handedly and unilaterally in wishing to enrol the children at S H P S, without his prior approval. He believes this makes a mockery of the order that the parties share long term responsibility for the children. In this sense I am fearful that this dispute about which school the children should attend has become emblematic of the acrimonious and dysfunctional relationship that currently prevails between the parties.

The evidence

The father is the applicant in these proceedings, which he commenced on 17 December 2004. He requested that the proceedings be listed urgently. The father has acted on his own behalf throughout these proceedings. The mother responded to the application on 7 January 2005. She is represented by her solicitor, Ms T. The competing applications came before me in a duty list on 11 January 2005. Obviously given the imminence of the start of the school year, it was urgent that the matter be dealt with as quickly as possible. Fortunately time was found that afternoon to hear the matter on a final basis.
The father relied on two affidavits sworn by himself and filed on 17 December 2004 and 11 January 2005 respectively. In addition he gave some viva voce evidence and was cross-examined by Ms T. The mother relied on one affidavit sworn by herself and filed on 7 January 2005. She too gave additional oral evidence and was cross-examined by the father. No other witnesses were called by either party.
There was little in the demeanour or evidence of either of the parties which cast doubt on their credibility. They are both pleasant, honest and law abiding citizens. More importantly, both the mother and the father struck me as being capable and loving parents. They are however quite different people by way of temperament and I suspect in how they parent the two children concerned. Sadly there was no disguising of the antipathy and suspicion the parties currently hold for one another. They both genuinely seemed both perplexed and exhausted by the levels of hostility currently between them and at a loss to know what to do about the situation. They both expressed grave doubts that any formal process, such a post separation parenting course or parenting counselling, would be of any assistance to them.
This sense of powerlessness was particularly marked in the case of the mother, who seemed to me to be close to the end of her tether so far as the on-going difficulties with the father were concerned. She deposed that both she and the children were going to counselling in an attempt to resolve some of the difficulties that remained following the parties’ separation.
The father was clearly disappointed at the conclusions Ms K reached in the family report, which later became the catalyst for the parties reaching the consent orders they did in October of 2003. He believes Ms K’s conclusions were ill founded and she, to use his expression “was biased” against him. He sincerely believes that he had no other option at the time but to compromise the proceedings because he was unlikely to be ultimately successful as a result of his Ms K’s report. This seems to have left him with an abiding sense of bitterness and a feeling that the subsequent orders sold him short. It remains his view that only proper outcome for the earlier proceedings was an arrangement, which resulted in the parties having a strict equality in responsibility for caring for the children.
My sense is that the father remains aggrieved with both the mother and the orders that were made on 29 October 2003. As a result he bitterly resents what he perceives to be any “watering down” or diminution of the effect of those orders. He fervently believes that the mother wishes to reduce his role in the lives of the children and ultimately “freeze him” out from them. Therefore it is necessary for him to struggle with her to retain his active role with the children. This leads him to view the mother with suspicion as an enemy. He perceives the mother’s wish to change the children’s school enrolments, which he believes the mother was determined to achieve without consultation with him, as being symptomatic of her attitude towards him.
I can well understand why the father would value every possible interaction he has with the children, no matter how minor. There can be no doubting that he wishes to play as active a role as possible in their lives. His constant fear is that he will be “left out of the loop” by the mother in respect of issues to do with their day to day lives and long term development. Above all he does not want to be a token father, which he fears is a possible result of the children living more with their mother than with him.
I also accept that he decided that he would live in M and arranged his work life so that he could have the maximum level of involvement with the children. Understandably he is somewhat disappointed at the possibility of these arrangements being rendered superfluous as a result of both a change of school and address for the children.
For her part the mother finds the father’s zeal for the children and his suspicion of her difficult to cope with. I have no doubt that she has, in the past, behaved in ways she has subsequently had cause to regret. No doubt she has done and said things that could have been construed as being provocative to the father and similarly he to her. I can also understand why she would greet the possibility of having to discuss arrangements in respect of the children with the father with some trepidation. She fears a confrontation with the father at every such discussion. All these various matters lead to a situation where the parties have a disastrous parenting relationship with one another and every interaction between them occurs in a stilted and tense manner with the potential that it will become a new flashpoint between them.
I do not believe that the mother has any ulterior motives for wishing to enrol the children at S H P S. It seemed to her a natural development given her change of address, which was forced through no fault of her own. However it was unfortunate indeed that the father heard of the proposed change in enrolment from L. This heightened his suspicions of the mother. I accept that the mother had not at this stage finally determined how she would respond to the question of the children’s school enrolment. I readily understand why she would have some reticence about raising what she knew would be a controversial issue with the father and one that would most likely lead to a further confrontation, as indeed it has done.
Nor do I think that the father has any hidden motives for opposing the change of enrolment. He genuinely believes that the children remaining at S P’s is the best outcome for them. However the father has a strong personality and is convinced of the righteousness of his position. It is not easy for him to compromise with the mother, whom he views with the deepest suspicion, or concede that her views have any validity. His mistrust of her was manifest throughout the proceedings. As a result, I consider that at times, albeit inadvertently and without calculation, the father’s evidence about the children was not as objective as the mother’s was.
In contrast to the father, it is my view the mother has currently resolved most of the various issues that arose between the parties both before and after they separated. In these circumstances, it seems to me that she is more likely than the father to have formed an objective view as to the probable best outcome for L and B from these proceedings. There is nothing in the evidence before me to indicate anything other than that she is an insightful and sensitive parent, who is motivated by the best interests of the children. Certainly she seems to me to be a more reliable conduit in respect of what the wishes of the children are likely to be, particularly L, regarding which school they wish to attend and their general attitude to a change of enrolment and of other potential changes regarding extra curricular activities.

The currently conflicted relationship between the parties has the potential to do great emotional harm to the children concerned. Clearly the remedy to this problem is the hands of the parties themselves and in constructive attempts to improve their relationship and put past issues behind them.

(a) the father’s position and evidence

The father points to the continuity of the children’s enrolment at S P’s P S as the major factor in support of his contention that the children should remain there. It is his view that L has formed many close relationships, both with other students and teachers at the school during her six years there and it will be very unsettling for her to change schools at this stage of her development. She is about to reach puberty, which can be a difficult transition for some children. In this regard he points to the fact that she has a particularly close bond with the S P’s school counsellor, whom she visits on a weekly basis.
He is also concerned that it may well be the case that L is not accepted by other students at S H P S and may be viewed as an outsider there because she has no existing relationship with any of the students there. He is fearful that this will have disastrous consequences for her emotional well being and the development of her social skills and so retard her otherwise pleasing advancement at school up to this stage. It seems to be the case that L has done very well at S P’s, both academically and in her sporting endeavours. In these circumstances, where L is settled and doing well, he can see no proper justification for moving her away from S P’s.
The parties agree that B has not made a particularly successful start to his primary education. He has been allocated a special education teacher there. It seems to have been the intention of the teachers at one stage to keep him in transition for a further year. However the father has persuaded the authorities at S P’s that this is not necessary. It is the father’s position that the teachers at S P’s understand Brody’s difficulties and Brody has been showing improvement in his behaviour at school. He too regularly visits the school counsellor. The father believes that given these circumstances, it is likely to be disruptive to B to move him to another school at this stage.
Both L and B engage in extra curricular activities whilst in the father’s care. In B’s case, he attends a karate class on Thursdays in L, also a northern suburb of D. The classes begin at 3.30 pm. School finishes at 3.00 pm. The father believes that it will be impossible for him to collect B from school at P in time to attend this class. For the past six years L has been attend a callisthenics class on each Thursday at J, again a northern suburb of D, close to N. This class apparently starts shortly after B’s karate class.
L has competed in many callisthenics competitions and has formed close friendships with her fellow team members. Again the father believes it will be impossible for L to maintain her involvement with callisthenics if she changes her school enrolment, as he will find it very difficult to collect her from school on Thursdays in time to get her to her class.
Karate and callisthenic are apparently the only extra curricular activities in which the children currently engage. The father places considerable emphasis on the fact that the children only attend these activities when they are in his care. He believes this demonstrates the importance of his commitment to the children and may mean that the children will be deprived of any extra curricular activities if there is a change in their school enrolment. In addition the father also believes that it will be harder for him to attend at some routine school functions during the day and otherwise visit the children’s teachers as he has done in the past, if they attend school in W.
At present the father collects the children after school on each Thursday. On these days, with the permission of his employer, he leaves work early. It is the father’s case that it will be necessary for him to leave work earlier in order to travel the necessary distance to P to collect them in the event that the children’s school is changed. This is likely to inconvenience his employer and lead to dissatisfaction on the employer’s part. At present it is usually only a short drive for him between W and N. The drive between P and N takes at best about twenty to twenty-five minutes, depending on the traffic. He will also incur additional travel expenses, which will not be subsidised by his employer.
Similarly, on Friday mornings, when he is required to return the children to school, he believes that it will be necessary for him to leave home earlier and for the children to spend considerably more time travelling if they attend school at S H P S than they currently do. He believes that this will not be in their best interests.
Finally, the father believes that the children, over the past few years, have weathered a period of considerable insecurity. This difficult period has included the separation of their parents and the total destruction of their family home. Enormous changes for even the most resilient of children. They have also had to accommodate a change of address to M. It is the father’s position that the children have endured sufficient changes in this period without having to accommodate a change of school as well, particularly as both children appear to be doing quite well at their existing school.
The father concedes that he has no authority to dictate where the mother is to live with the children, provided it is in the area of D or P. However he believes that notwithstanding her move it is still incumbent on the mother to maintain the continuity of the children’s education and this she can do as easily from M as she could from N or W. He believes that the mother will be able to deliver the children to school in N without undue inconvenience to herself once the school year begins and she is living in M. This is particularly so as on up to three days of each week, the mother will be driving to her work in T.
In this regard he points to the fact that he has previously arranged his life so that he lived in close proximity to the children’s home and school so that he could fit in with their needs and minimise their requirement to travel. Now that the mother has changed one of these arrangements he believes that the balance of convenience favours him in regards to the other arrangement, that is the children’s place of schooling.
The father concedes that S H P S is a good school and most likely offers a similar standard of education to S P’s. He has two relatives who attend the school, who appear to be doing well there.

(b) the mother’s position and evidence

It is the mother’s case, as is self-apparent, that she did not engineer the crisis that made it necessary for her to find new accommodation for herself and the children. It is her case that in the past the parties agreed that the children would have a private catholic education and would attend the catholic school most convenient to their home. Due to circumstances beyond her control, the location of their principal family home has changed, which in turn has necessitated a change of school for the children.
On her case, which I accept, S H P S is five minutes drive away from the mother’s new home in E A, M. School hours at S H are from 8.25 am until 3.00 pm each day. In addition the school has an after school care facility which closes at 5.30 pm.
It is the mother’s case that she paid the necessary fees incurred for the children to attend S P’s, after the parties separated. The fees presently amount to about $40.00 per week. The fees for S H will be about the same. There seems no reason to doubt her assertion that the standard of education the children will receive at S H will of a similar standard to that which they currently receive at S P’s. S H has places for about 400 students. In this regard it is a larger school than S P’s is. In her case, the mother also points to the fact that her inquires at S P’s reveal that the person who has been the school counsellor there during 2004 has decided to move on. I am not in a position to resolve this issue nor is the father in a position to refute this suggestion.
The mother describes L as a bubbly, outgoing child who is quite self-assured and who makes friends easily. It is her position that L has already acquired friends in the P area and is excited about the prospect of changing schools. Certainly it is the mother’s case that L has expressed no reticence to her about the prospect of going to S H. The mother confirms that L is currently doing well academically at school. As a result she feels that it is most likely L will quickly adapt to whatever school environment she finds herself in. I have no reason to believe that the mother has over-stated the ease with which she believes L will adapt to a change of school. As I have already said, I accept that the mother has the children’s best interests to the forefront of her considerations.
I have no doubt that the children found the destruction of their home extremely traumatic. It is the wife’s case that both L and B are looking forward to the prospect of moving into their new home in M. In all the circumstances this is only to be expected. The mother wishes the children to be fully intergrated into their new neighbourhood and to make friends in the area in which they live. The mother believes that it is likely to be in the best interests of the children for them to socialise in the same area in which they attend school. For reasons beyond her control it is no-longer possible for them to live in N. She believes that to compel the children to continue to go to school in N will result in excessive travel for the children and fracture their school and social lives and potentially leave them alienated from the area in which they predominantly live.
In any event, she points to the fact that L has only one more year of primary school education before her. It is apparently now the practice of the two major C H S in D, O’L C and S J’s C, to accept students at year 7 level. Therefore, whatever the outcome of these proceedings, it is likely that L will have to accommodate a change of schools at the beginning of 2006, when she starts year 7.
The mother believes that it will be much more convenient for the children (and for herself) if they attend school close to where they live most of the time. It is the mother’s case that she has chosen to work part-time so that she can involve herself fully in the children’s school life and regularly attend their school assemblies and other presentations. It will be far easier for her if the children are at school close to their home, without the necessity for frequent car trips of up to twenty-five minutes each time between M and N. At this stage the mother would not countenance the children travelling to and from school by bus. She disputes that the father attends at the children’s school during the day as regularly as she does because he works full time. On balance this seems likely to be the case.
S H P S has a before school care facility, which S P’s does not. It will be convenient for the mother to be able to drop the children off at school at S H on the days on which she is working. Otherwise the children will have to spend more time travelling by car each day. On some occasions the mother is required to work late and to undertake a late shift which finishes at 9.00 pm. She tries to avoid these occasions and to ensure that they coincide with times when the children are in the care of their father. The mother has resources in the P area to assist her with babysitting on these occasions. It is the mother’s case that it will be easy for her to drop the children of at school in W on the mornings that she is working on her way to the D P H, certainly when compared with the prospect of delivering them to S P’s in N, particularly given that S H has before school care.
The mother agrees that B’s first year of primary school was not a good one. She attributes this to the influence of another child in B’s class, who eggs him on to misbehave. As a result, during 2004, she was called down to S P’s on at least six occasions by the staff to respond to B’s misbehaviour. B does not seem to be a particularly shy child. It may be that some of B’s difficulties are attributable to learning difficulties. To this end the mother has arranged for B’s hearing and eyesight to be tested.
The mother agrees that the school authorities at S P’s considered keeping B in transition for a further year. In her evidence she deposed that the reason for this was that the school had determined that B was to be separated from the mutual bad influence of the other student. In these circumstances it was either B or the other student who was to be kept down. I accept the mother is rightly concerned at B’s poor and disruptive behaviour at school during 2004 and has discussed strategies to deal with it with the relevant teachers. In this regard I accept her evidence that the possibility of B having a fresh start at a new school has been discussed with her by staff at S P’s and recommended to her as a good option for B. It is certainly the mother’s position that B would benefit from having a fresh start at a new school.
It is the mother’s case that the father overstates the degree of inconvenience he will suffer in the event that the children start to attend S H P S in 2005. In this regard, she points to the fact that the father works in W and is likely to depart from his office there more often than not to collect the children for contact. Although W is marginally closer to N than P, it is not a vast difference between the two locations. I accept the mother’s evidence in this regard.
The mother concedes that it will take some additional time on Thursday afternoons to travel with the children from P to their activities in the N S but she estimates the extra time as being only of the magnitude of ten minutes or so. I think the mother is probably being unduly optimistic in this regard. I believe that it would probably take a combination of good luck and good organization to be able to collect the children from school in P at 3.00 pm and get them to karate at L (in B’s case) and to callisthenics at J (in L’s case) by 3.30 pm every time. It is however not impossible but it will inevitably be a close run thing.
Of more importance in this regard is the mother’s evidence that B could conceivably attend karate classes in the P area. This would involve some change for B and would not be so convenient for the father. Accordingly, even putting the father’s case at its highest, it is not the case that a change of schools must inevitably deprive B of the opportunity to learn karate. In addition, it is the mother’s evidence that L is becoming somewhat disinterested in callisthenics, as she grows older. As a result the mother believes that it is likely that in the near future L will want to become involved in some other extra-curricular activity such as girl guides. In any event it also seems that there is a callisthenics class available in the P area, which L could attend. However, once again, this would not be so personally convenient to the father and would involve L training and competing with other girls than those she has been involved with up to this stage.
Overall the mother can see more advantages than disadvantages for the children if their enrolment at school is changed. She believes that the children will cope emotionally with the change. I accept that she has considered the implications of the children changing their school and the issue has emerged due to no fault of the mother herself.

The law applicable to parenting orders

The applications of both parties concern parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B(1) of the Act sets out the objects of this part of the Family Law Act. The object is to ensure that the children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying this object are set out in section 60B(2) of the Act. These principles include, except where it would be contrary to a child’s best interest, the following:
i)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
ii)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
iii)parents share duties and responsibilities concerning the care, welfare and development of their children; and
iv)parents should agree about the future parenting of their children
However the fundamental principle governing the making of any parenting order is set out in section 65E which provides that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
In deciding the parenting arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in section 68F(2) of the Family Law Act. The various sub-sections contained in section 68F(2) comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the Court 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 in any orders made by the Court, and in this regard I refer to B and B: Family Law Reform Act[2].
[2]B and B: Family Law Reform Act (1997) FLC 92-755
In this case it is the Court’s duty to make relevant findings of fact concerning the cases of each of the parties and then apply each of the relevant sub-sections contained in section 68F(2) to those findings in a common sense and practical way, in order to ensure that the final orders that are made result in a situation that will serve L and B’s best interests. The matters that are listed in section 68F(2) are as follows:
(a)   Any wishes expressed by the child or children concerned and any factors such as the child or children’s maturity of level of understanding that is relevant in the circumstances;
(b)   The nature of the relationship of the children concerned with the children’s parents and with other persons;
(c)    The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents or from any other person with whom he has been living;
(d)   The practical difficulty and expense of the child having contact with people who are interested in the children concerned;
(e)   The capacity of parents or any persons to provide for the needs of the children, including their emotional and intellectual needs;
(f)     The children’s maturity, sex and background;
(g)   The need to protect the children from any physical or psychological harm as a result of being exposed to abuse, ill-treatment, violence or other behaviour;
(h)   The attitude to the child and the responsibilities of parenthood as displayed by the relevant parties;
(i)     Any issue relating to family violence;
(j)     Any applicable family violence orders;
(k)   Those orders that are least likely to lead to the institution of further proceedings;
(l)     Any other fact or circumstance.
Although the issue to be determined in this case is a well-defined and discrete one, regarding the school the children will attend, these principles must still be applied, as they are each relevant, to the evidence in this case. The Full Court of the Family Court considered the specific issue of disputes between parents regarding educational choices for their children in the case of Re G: Children’s Schooling[3]. What is abundantly clear from that case is that the question of children’s schooling is not a simple one or one that is to be treated lightly by the court. Presumptions of any sort cannot be used to answer the question as to which school or what form of education may be in a child’s best interests. Certainly there is no presumption which favours the principal residence-providing parent in this regard.
[3] Re G: Children’s Schooling (2000) FLC 93-025

In Re G, the Full Court said as follows:
“…we approach the question of the wife’s application without any legal presumption that favours acceding to the proposal of the parent with whom the children are living. Section 65E of the Act requires a determination between the competing proposals on the basis that the best interests of the child are the paramount consideration. Although there is no legal presumption in favour of the residence parent and, correspondingly, no hurdle or onus faced by the other parent, that is not to say that the reality of the children residing predominantly with one parent has no relevance.”[4]
[4] See Re G: Children’s Schooling (supra) at p 87-416
With these matters in mind I turn to consider the competing proposals of the parties against “the check list” provided by s.68F(2) to meet the “essential enquiry required by s.65E”.[5] In my view the relevant matters to be considered fall under s.68F(2)(a)(b)(c)(d)&(h).
[5] See ReG: Children’s Schooling (supra) at p 87-416

(a) The children’s wishes

L is almost eleven years of age. As such she is likely to understand the general implications of changing her school, particularly that it will mean she will have far less frequent contact with the various school friends she has acquired since she began at S P’s in 1999. By all accounts she is doing well at school and is a confidant and outgoing child. I accept the mother’s evidence that she views the prospect of living in M and as a result having to change her school with enthusiasm. Certainly there is no evidence to suggest that she has expressed a positive wish to maintain the existing status quo because of any particular anxiety she feels. I accept that there is a possibility that she may not have fully thought through all the practical implications of such a move. It may be that she is just attracted to the novelty of change. On balance, so far as L is concerned, I consider this to be a neutral consideration and not particularly important.
B has just turned six. His school career has just begun. He understands that he is moving house and is excited about this. However, given his age and level of development, he is unlikely to be able to express any definitive wish as to which particular school he attends. This is not an important consideration so far as B is concerned.

(b) The nature of the relationship between the children and their parents and other significant people

Both L and B have a close and loving relationship with both their parents. Any change of school will not have any significant effect on the depth of these relationships. Regardless of whether they attend school in N or W, they will still see their father frequently. The proposed change of school will not jeopardise this central relationship in their lives in any way. I can understand why the father would be annoyed at the way the issue has been handled and frustrated that his sacrifice in moving to M will come to naught. However the mother cannot be blamed for wanting to move. As a result of the fire, she had no choice in the matter. I accept her evidence that her housing dollar went further in P and that is why she decided to move there. After all the consent orders of October 2003 did envisage the possibility of both parties moving to P at some stage in the future. It is not an extraordinary development by any means.
To his great credit, the husband has gone to some length to maintain his constant role in the children’s lives. I accept that he is the main force in regards to their involvement in karate and callisthenics. It is important for children to be involved in such activities, which promote their self-confidence, help them make friends and develop an interest in physical fitness, which may be of benefit to them for life. However, a move by them to another school in another area of the greater D/P area will not prevent them being involved in all manner of extra-curricular activities in future. Both callisthenics and karate are available in P and all though it may be inconvenient for him the father can maintain his own involvement in these activities. It is also not uncommon for children of the ages of L and B to take up and put down all manner of sporting and other activities during their childhood.
The mother seemed to me to be a sensitive and competent parent, who had an insight into the needs of the children, both emotional and educational. I do not think that she has determined to change the children’s school on a whim of her own to frustrate the father or demonstrate her contempt for the orders of the court that recognised the fact that she and the father share long term responsibility for the children. For valid and understandable reasons, she wishes the children to attend a school near where they predominantly live. Certainly this will be more convenient to her and her working arrangements. However I do not think that she is motivated by any personal selfishness.
Although there is no presumption that the residence providing parent has a free rein in determining which school a child should attend, I cannot ignore the reality of the situation in this case that, on a day to day basis, it is the mother who has to deliver and collect the children before and after school on a more frequent basis than the father. In this regard S H has more appeal for her because of its before school care facility. This is a valid consideration which favours the mother. In a qualitative sense there is little to choose between the education offered by S P’s and that offered by S H. Both are good schools offering children a catholic education. One cannot be said to be better than the other. They are broadly similar.
It is a strong thread in the father’s case that L’s relationships with her current school peers and teachers will be disrupted if she moves to S H. This is so. Undoubtedly L has many friends at S P’s. I accept that she is a child who makes friends easily wherever she goes. The mother’s evidence was that L would be able to see her friends from S P’s from time to time. There is no evidence before me to indicate that L has exhibited any particular anxiety at the prospect of changing her peer group. In this regard I accept the mother’s evidence that L already has some friends in the P area. In these circumstances the change envisaged by the mother is not a huge one. L will not loose her S P’s friends. In any event, L will most probably be moving to High School at the start of 2006 and this will inevitably involve a change in peer cohort.
B has been at school for only a year. It has not been a completely propitious one for him. At one stage the school authorities at S P’s considered separating him from the other children with whom he started his school career. In these circumstances, I do not consider him to be firmly embedded within his cohort at S P’s. I do not think that it can be said he has any significant relationships with other children in his year. In any event it is not uncommon for children to attend several primary schools during their primary school education.
As B grows and develops, he will acquire friends. There is much to be said for the mother’s position that it will be easier for B to maintain the friends he makes at school if he has an opportunity to interact with them outside school hours and in one another’s homes. In this regard it will be easier for him if he attends a primary school in the area where he predominantly lives. This is another factor that favours the mother’s position.

(c) The likely effect of any changes in the children’s circumstances

The children are likely to have the same standard of education whether they attend S P’s or S H. In that sense the change envisaged by the mother is not a great one.
The move to S H, as sought by the mother, will have obvious ramifications for L in that she will have to accommodate new teachers and make new friends. It is possible that she will not be accepted at the new school. The father referred to children of L’s age as being notoriously “cliquey”. This would be of more concern if there was evidence to indicate that L was a particularly shy or withdrawn child. She is not. Too the contrary the evidence is that she makes friends easily. She seems to be relishing the prospect of making new acquaintances. Apart from the father’s fears about the issue there is no evidence to indicate that L will necessarily encounter such cliquey students at S H and be made to feel an outsider.
In my assessment, the mother has the necessary skills and attributes to ease L through any difficulties she may experience with the transition. L seems to me to be an adaptable child. I do not believe that the mother would attempt to force L to do something with which she will not cope. The mother obviously has a comprehensive knowledge of her daughter’s psychological make-up and what she can and cannot do.
The father’s concerns about B moving schools seem to be less well defined. Certainly it seems that he is less well embedded in S P’s than L is. However I accept that in the year he has spent at S P’s the staff there have become familiar with him and some of the difficulties he has experienced with the transition to school. The father argues that B will have a better chance of resolving these difficulties if he remains at S P’s, where he will continue to have access to a special education teacher, who has a history of working with him. As previously indicated the father puts great weight on the continuity of the children’s relationship with peers and teachers. However there is nothing to indicate that B will not have access to a similar special education teacher at S H. Clearly it is inevitable that all children will necessarily have many teachers during their school careers.
In my view, the evidence indicates that there are in fact positives arising for B out of the potential move to S H. His first year at S P’s was not without difficulties. Those difficulties were of such magnitude that consideration was given to keeping back a year. There is much to be said for the position as advocated by the mother and apparently supported by staff at S P’s that B will benefit from a fresh start at a new school.

(d) The practical difficulties associated with contact

The father is disappointed with at the prospect of the children attending school in P. I accept that this will be more inconvenient for him than if the current situation prevails. I can understand his disappointment, particularly when he has scarified much to live in M, close to N and given up his dream to live in H S. A change will also potentially impact on B’s karate and L’s callisthenics. However it is drawing a long bow to assert that the children will be deprived of extra-curricular activities because of the change. I view it as inevitable that the children will change the activities they wish to pursue from time to time.
I also do not accept that the proposed changes will impact too a large degree on the children’s entitlement to have regular contact with their father. The additional time he will have to spend driving to collect and return them at P is small when all is considered. Certainly when compared to the situation which confronts many parents who live and work in the major cities of Australia. Many parents who live in Sydney or Melbourne would regard a daily commute of twenty-five minutes as a dream.

(h) The attitude to the children and the responsibilities of parenthood

Both the father and the mother are good parents, who have each exhibited a high level of commitment to L and B. I have no doubt that each of them are trying, in albeit different ways, to advance the interests of the children in the way each considers will nurture the children’s strengths and cater to their needs. I accept that fundamentally each believes that the position he or she advocates in respect of the children’s place of education is the right one. As I have already indicated, it is a source of some regret that I have to make this decision. I hope it will not hinder the process of the parties working to repair their parenting relationship with one another. The parties should not think in terms of winners and losers in respect of the issue. Both of their points of view are valid and understandable.
In this case the practical day to day demands associated with school fall more on the mother’s shoulders than on the father’s. I accept her evidence that she has sought part-time work so that she can be involved with day to day activities at the children’s school. I am not critical of the father in this regard. Financial necessity compels him to work full-time.
On balance I accept it will be more stressful for the mother if the children remain enrolled at S P’s than for the father if the countervailing position prevails and they move to S H. Whilst it is speculative, I believe it would be imprudent for me to discount the mother’s contention that attending a school in the P area will facilitate after school play for the children, particularly B. Certainly the children’s connection with the N area has been considerably weakened since their former home was destroyed and necessity drove the mother to seek accommodation for herself in the P area.

Conclusions

As is apparent from these somewhat lengthy reasons for judgement, I have not found this to be a particularly easy case to decide. Both parties’ proposals have disadvantages as well as advantages. I do not have a crystal ball and cannot predicate with certainty how either L or B will cope with a change of school. I acknowledge that any decision regarding the school a child will attend or the type of education he or she will receive is necessarily a weighty one, which calls for close consideration. There is much to be said for the father’s assertion that if there is no problem with S P’s and the children are well settled there why should they be moved?
However necessity has forced the mother to move. The children’s connection with the N area has been considerably weakened through no design of the mother’s. She has closely considered the consequences of the move and the children are excited by the prospect of moving. Some level of change is a part of most people’s lives, including children. Although there may be adverse consequences of the children moving to S H, which are as yet unknown both to me and the parties, the preponderance of evidence indicates that the children will cope with a change of enrolment and receive a comparable education to that which they have received to date at S P’s. In geographical terms the scope of the move is minor and will not significantly impact on the children’s existing good relationship with their father.
I cannot ignore the fact that it is the mother who bears the greater burden of dealing with the issue of getting the children to and from school and ensuring that they are properly cared for both before it and afterwards. At the end of the day it is necessary for me to attempt to weigh up the various factors and so focus on the result that I believe is likely to be in both L and B’s best interests. I have concluded that this result is provided if the mother is authorised to enrol the children at the S H P S in W.

For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgement.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: C White

Date: 14 January 2005