WAFFORD & ROCKLIFF
[2011] FMCAfam 63
•21 January 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WAFFORD & ROCKLIFF | [2011] FMCAfam 63 |
| FAMILY LAW – Children – schooling – one child aged 12 years – where parents disagree about which high school the child is to attend – best interests of the child – wishes of child – parental responsibility – substantial and significant time – NAPLAN test tables – provision of material relating to schools’ academic standards usually unhelpful in interim hearings. PRACTICE & PROCEDURE – Name of Court – name of the respondent. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61B, 61DA, 65DAA Federal Magistrates Act 1999 (Cth), s.8 |
| Re G: Children’s Schooling [2000] FamCA 462; (2000) 93-025 H & H (No 1) [2005] FMCAfam 336 R and R: Children’s Wishes [2000] FamCA 43; (2000) 93-000 Harrison & Woollard (1995) 18 Fam LR 788; FLC 92-598 |
| Applicant: | MR WAFFORD |
| Respondent: | MS ROCKLIFF |
| File Number: | SYC 7937/2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 18 January 2011 |
| Date of Last Submission: | 18 January 2011 |
| Delivered at: | Sydney |
| Delivered on: | 21 January 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Humphreys & Feather Solicitors |
| Counsel for the Respondent: | Mr Harper |
| Solicitors for the Respondent: | Denese Vale & Associates |
ORDERS
The applicant and the respondent must forthwith do all acts and things and sign all such documents as may be necessary to enrol the child of the marriage [X] born [in] 1999 at [M] SCHOOL situate in [address omitted] in the State of New South Wales for the 2011 school year and thereafter shall be restrained from removing the child from the said school without the written consent of both parties or order of the Court.
The applicant and the respondent are restrained from enrolling or seeking to enrol the child [X] at the [F] School at [omitted] in the State of New South Wales.
IT IS NOTED that publication of this judgment under the pseudonym Wafford & Rockliff is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7937/2010
| MR WAFFORD |
Applicant
And
| MS ROCKLIFF |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the father of a twelve year old girl who is due to start high school this year. He seeks an order that the child should be enrolled at [F] School in [omitted] to commence in Year 7 later this month.
The mother opposes the application. She wants the child to go to [M] School, in [suburb omitted].
Orders sought
The father seeks the following orders:
i)That the parties forthwith do all acts and things and sign all documents necessary so as to cause the child, [X] (born [in] 1999) to be enrolled at [F] School to commence year 7 in the year 2011 onwards.
ii)Costs.
The mother, by her Response filed on 11 January 20110, seeks these orders:
i)That the Father shall be restrained from enrolling or doing any act or thing to cause the child of the marriage [X] born on [omitted] 1999 to attend [F] School in [omitted].
ii)The Father and mother shall forthwith do all acts and things necessary and execute all documents required to enrol the child of the marriage [X] born on [omitted] 1999 at [M] School at [address omitted], New South Wales for the 2011 school year and thereafter the Mother and Father shall be restrained from removing the child from the said school unless both parties provide their written consent to change the child’s school.
iii)That the father shall ensure that the child is delivered to school no later than 8.30 am each morning when the child is in his care or any other time as directed by the principal of the school. In the event that the child is to take public transport to school then the father will deliver the child to the relevant depot/station when the child is in his care at a time that will enable her to be at school prior to 8.30 am or a time as directed by the Principal of the school.
iv)The father will notify the mother within a 12 hour period of the child being absent or late from school.
v)Costs.
Areas of agreement
There is no agreement between the parties. Their positions remain diametrically opposed.
Issues in dispute
The parties disagree about the school [X] should attend. Counsel for the mother submits that it is not necessary to deal with the issue urgently, because the mother is authorised to determine the school [X] attends by Order 13 of Consent Orders made on 9 July 2007.
The father does not agree that the order gives that authority.
It is also an issue as to when the father’s term time with the child commences, as provided by the Consent Orders.
Background
The parties were married on [omitted] 1998 and separated on or about 30th October 2005. There is one child of the marriage. [X] was born on [omitted] 1999, so she is now twelve years old.
There were proceedings between the parties in the Family Court of Australia at Sydney[1] which were resolved by Consent Orders into which the parties entered on 9th July 2007.
[1] SYF 2370/2006
The relevant provisions of the Consent Orders are:
2. That each of the parties have equal shared parental responsibility for the child [X].
3. That [X] live with the father as follows:
(a) During school terms each alternate Friday from after school until before school Wednesday, commencing the first Friday of each school term.
13. That the mother be permitted to enrol [X] in a local school close to her residential address to commence in the 2008 school year, such school to be within the [omitted] council area.
[X] was enrolled at [C] School.
The mother was living at [omitted] at the time. She has since
re-partnered.
The father is living at [omitted].
The parties commenced negotiations about high schools for [X].
On 2nd March 2010, the mother and [X] attended an open day at [M] School, which is situated at [omitted]. The father did not attend the open day. The mother later placed the child’s name on the waiting list at [M] School.
The parties and [X] attended an open day at a selective high School on 4th March.
On 10th March 2010 the parties and [X] attended an open day at [F] School. [X] was enrolled to attend [F] School.
On 18th March 2010 [X] sat an examination to determine whether she would be able to gain entry into a selective school. In July 2010 she was informed that she was unsuccessful in obtaining entry into a selective high school.
In August 2010 the mother placed the child’s name on the waiting list at [M] School. She did not mention this to the father.
The mother was informed in October 2010 that [X] had been accepted at [M] School.
The parties engaged in discussions by way of emails and solicitors’ letters, without any resolution.
The father filed an application on 16th December 2010, seeking leave to serve short notice, and seeking an order that [X] should attend [F] School. On review, the application was listed for mention on 18th January 2011.
The mother filed a response on 11th January, seeking orders restraining the father from enrolling the child at [F] School and requiring the parties to enrol the child at [M] School.
On 18th January, the parties were ordered to attend a Child Dispute Conference, which was to be reportable. Fortunately, a Family Consultant was able to see the parents that afternoon. He also spoke briefly to the child.
The Family Consultant, Mr L, gave short oral evidence that afternoon, and was briefly cross-examined by Mr Feather for the father and
Mr Harper for the mother.
Evidence
The father relied on his affidavit sworn on 15th December 2010. It is his evidence that:
a)The question of which primary school the child was to attend was “very much a live issue” in the proceedings before Cohen J in the Family Court that led to the consent orders in 2007;[2]
[2] Affidavit of Mr Wafford 15.12.2010 at paragraph [8]
b)He wanted [X] to apply for a selective high school and the mother eventually agreed that the only selective high school she was happy for the child to attend was the selective high school at [omitted];[3]
[3] Ibid at [10]
c)After he and the mother attended the open day at [F] School, along with [X], they agreed that she should attend that school;[4]
[4] Ibid at [12]
d)He was not aware that the mother had placed the [X]’s name on the waiting list at [M] School until the child told him in October;[5]
[5] Ibid at [13]
e)The mother informed him that she had enrolled [X] at [M] by way of an email on 25th November 2010;[6]
[6] Ibid – a copy of the email is at Annexure “B’
f)In early December he found out that the home unit at [omitted] where the mother lives has been placed on the market;[7]
g)Whilst he has been driving [X] to and from primary school he “will not be able to able to continue to drive [X] to and from school in the future indefinitely”;[8]
h)If [X] is to attend [F] School, to get to school from his residence at [omitted] she can catch a train, then a bus, then have a short walk to school, but if she were to go to [M], she would have to catch a train and two separate buses, and then walk; [9]
i)He has some concerns about the reputation of [M] School, as a result of a statement allegedly made to [X] by some Year 10 girls in 2008;[10]
j)[F] School is a co-educational school with a very good reputation, offering academic and extra-curricular programs;[11]
k)He does not believe that [X] would be scared to hurt his feelings in expressing a view about what school she wanted to attend;[12]
l)Whilst most of the children in [X]’s year at primary school are going to [M], only one of her friends, a girl named [omitted], will be going there;[13]
m)He is actively involved in the child’s schooling;[14] and
n)After the respondent took [X] to an orientation day for [M] in December, the child told him:
“I’m not going to [M]. It was awful. The girls were all stuck up and snobby. They all had their skirts up real short. The older girls didn’t even look at you.”[15]
[7] Ibid at [14]
[8] Ibid at [15]
[9] Affidavit of Mr Wafford 15.12.2010 at [16]
[10] Ibid at [19]
[11] Ibid at [20]-[22]
[12] Ibid at [26]
[13] Ibid at [27]
[14] Ibid at [28]
[15] Ibid at [30]
The mother relies on her affidavit affirmed on 5th January 2011. She deposes that:
a)She had discussed with the father the idea of [X] attending a selective high school;[16]
[16] Affidavit of Ms Rockliff 5.1.2011 at paragraph [8]
b)She nominated [F] School as the child’s high school because:
i)The father had said on many occasions that he wanted the child to attend [F] School; and
ii)She thought that the child would be going to a selective school in any event;[17]
[17] Affidavit of Ms Rockliff 5.1.2011 at [10]
c)She had suggested to the father that they should attend the open days for all the available high schools, but the father said:
“No. I want her to go to [F] School if she does not get into any of the selective schools.”[18]
[18] Ibid at [11]
d)She and [X] went to the Open Day for [M] but the father refused, after [X] asked him;[19]
[19] Ibid at [12]
e)After the mother and [X] attended the open day at [M] in March the child said to her:
“I liked the school Mum”;[20]
f)The mother attended the open day at [F] School but did not think it had as much to offer as the other schools she had seen; denies that she said to the father that [F] School was a good school and she thought [X] would be happy there;[21]
g)[X] told her in August that she wanted to go to [M] School, so she put the child’s name on the waiting list, but did not tell the father because she did not think the child would be accepted;[22]
h)[X] told her on four occasions that she wanted to go to [M] but did not want to upset her father;[23]
i)She was informed in October that the child had been accepted at [M];[24]
j)She believes that [M] School is a superior school to [F] School;[25]
k)About 30 girls from [X]’s primary school, including her friend [name omitted], will be going to [M];[26] and
l)[M] is closer to where she works than [F] School:
The care arrangements provide that [X] spends the majority of time with me during the school week over a fortnightly period. I therefore have to do the school run 14 times during a fortnightly period and [Mr Wafford] has to do 6 runs. [M] is closer to where I work than [F] School. If [X] is to attend [F] School then I will have to travel on [omitted] Road to and from school which is a busy road at peak hours.[27]
[20] Ibid at [14]
[21] Ibid at [16]
[22] Ibid at [19]
[23] Ibid at [20]
[24] Ibid at [22]
[25] Ibid at [26]-[27]
[26] Ibid at [27]-[28]
[27] Ibid at [30]
The mother has expressed the view in her affidavit that [X] wants to please her father which is why she is now saying that she wants to go to [F] School. She said to the mother:
“I really do want to go to [M]. Dad thinks that if I go there I will end up spending more time with you. I don’t want to upset Dad.”[28]
[28] Ibid at [35]
The mother sets out her proposed arrangements for taking [X] to and from school if she attends [M] School:
38. [M] is located 15 minutes by car from where I live in [omitted], approximately ten minutes by car from my work at [omitted] and a short walk from my partner [name omitted] works at [omitted]. The property we currently rent is for sale and my partner and I will have to move shortly however I intend to rent a property in the surrounding area…
39. For the majority of [X]’s schooling I have driven her to and from school except on the odd occasion when [X] has asked to walk home with her friends. It is my intention to continue to do this when she starts high school, especially of she attends [M] School as it is close to where I work. I do not commence work until around 9.30 am each morning and will therefore have plenty of time in which to get [X] to school before I start work. I finish work at around 2.30 pm so I am available to collect her from school.[29]
[29] Affidavit of Ms Rockliff 5.11.2011
The mother deposes that she is aware that the father or one of his family members currently drives [X] to and from school when she is in his care but he has said to her:
“I do not plan on driving [X] to high school. She has to catch public transport.”[30]
[30] Ibid at [40]
The mother does not believe that it is in the child’s best interests to travel on public transport at her age, and believes that the father should continue to take her to and from school.[31]
[31] Ibid at [43]
The mother also raises the concern that the child has missed school or been late for school at times when she is in her father’s care and seeks an order that the father ensures that she attends school on time and is not absent from school unless it is for a medical reason.[32]
[32] Ibid at [45]
The mother’s counsel tendered a map showing the location of
[M] School at [omitted] and the location of her new residential address at [omitted].
The Family Consultant who conducted the Child Dispute Conference, Mr L, gave evidence of his interviews with the parents and his brief interview with the child. Each parent’s perspective is not unreasonable. The mother’s view was that [M] School was closer to her home whilst the father’s view was that [F] School was preferable because it would involve the child in less travelling to and from school when she was in his care.
He interviewed the child [X]. He said that she had expressed a preference to attend [F] School because she had recently had an argument with her mother and, if she wanted to spend more time with her father, it would be easier for her if she were attending [F] School.
Mr L expressed the view that this was not a sufficiently mature reason to make a final choice of schools. He further said that [X] was finding the whole decision making process stressful. If a decision were to be made by the Court, she would go home with a sense of relief either way. He formed the opinion that she was a mature and resilient child for her age.
Mr L further told the Court that both parents wanted [X] to be relieved of stress. The decision should be made by the Court. The child would want to know the reasons for the Court’s decision. He said that he would be prepared to assist by explaining the court’s decision and the reasons for it to the child.
Submissions
Mr Feather, for the father, submitted that Order 13 of the Consent Orders made on 9th July 2007 does not apply. That order was made because of a particular issue at the time and was not intended to lay down that the mother would always have the right to dictate which school the child would attend until she became an adult.
The child has expressed a clear preference to go to [F] School, and a number of children from her previous primary school will be going there. The child, if she goes to [F] School, would remain in an environment where she has already developed friendships.
Another issue that arises from the Consent Orders is the time when the father is next due to spend time with the child, as provided by Order 3(a), which says that [X] will live with the father:
During school terms each alternate Friday from after school until before school Wednesday, commencing the first Friday of each school term.
The issue between the parties is whether, as the father submits, his time with the child commences on Friday 28th January, which is the first day of the school term, or the following Friday, 4th February, as the mother submits. The difficulty is that Friday 28th January is a pupil-free day and not a day when the children are required to attend school at all. Nevertheless, Mr Feather submits that it is the first day of the school term. It is a matter of some moment to the father because he has not seen [X] for some time, because of the school holidays.
However, on that point, Mr Harper for the mother submits that, logically, the school term starts when the children go back to school.
As to the issue of the proper school for the child, Mr Harper referred the Court to the decisions of the Full Court of the Family Court in Re G: Children’s Schooling[33] and of Pascoe CFM in H & H (No 1.)[34]
[33] [2000] FamCA 462; (2000) FLC 93-025
[34] [2005] FMCAfam 336
He submitted that the mother had enrolled [X] at [M] School because she thought the child had expressed a preference for that school. The question of travel has assumed less significance since Mr L’s evidence and the difference in travel is not determinative.
There is, however, a balance of convenience argument. On almost twice as many occasions each fortnight, when the child is in the care of the mother, she can walk home or walk to school. [M] School is close to the mother’s employment and that of the mother’s partner, which means that the mother or her partner can be at the school reasonably swiftly if need be.
As to Order 13, Mr Harper submitted that is still applied.
The applicable law
When making a decision about the proper school for a child to attend, it is not the case that there is any presumption that favours acceding to the proposal that of the parent with whom the child is living. The Court must consider the best interests of the child or children concerned, by having regard to the objects of Part VII and the principles underlying Part VII, as set out in s.60B of the Family Law Act (see Re G: Children’s Schooling[35] at [65]-[67].
[35] supra
In deciding whether to make a particular parenting order, the best interests of the child are the paramount consideration (Family Law Act, s.60CA.).
The Court determines what is in a child’s best interests by having regard to the primary considerations set out in s.60CC(2) and the additional considerations in s.60CC(3). In addition, the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent (s.60CC(4)), and, where the child’s parents have separated, as is the case here, events that have happened and circumstances that have existed since the separation occurred (s.60CC(4A)).
When making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child (s.61DA).
The term “parental responsibility” is defined by s.61B as meaning all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, s.65DAA(1) of the Act requires the Court to consider whether the child spending equal time with each parent is in the child’s best interests and reasonably practicable.
If the Court does not make such an order, it must consider whether the child spending substantial and significant time with each parent would be in the child’s best interests and is reasonably practicable (see s.65DAA(2)).
Conclusions
This is an interim hearing about some specific parenting issues and the interpretation of Consent Orders made in 2007. Neither of the parents has given evidence. Unusually, the Court has heard oral evidence and allowed cross-examination of the witness, Mr L, the family consultant.
This situation was brought about by the urgency of the matter and the fortunate availability of Mr L, an experienced Family Consultant in this Registry, to provide assistance to the Court at short notice. As the Court was sitting late in the afternoon, pressure of time required Mr L to deliver his views by way of oral evidence rather than prepare the usual Family Consultant Memorandum to Court.
I will put on record the Court’s appreciation of Mr L’s willingness to provide this assistance to the Court and to the parties at short notice, and I reiterate my recently-expressed views that attendance by parties at a Child Dispute Conference is an important step in assisting the Court to decide what parenting orders will be in the best interests of the child concerned.
I repeat my earlier comments that the Family Consultants at the Sydney Registry of the Court provide a valuable service to the Court in dealing with the hundreds of parenting that come before it each year. The Family Consultants are experienced in matters relating to children and the Court will give serious consideration to their recommendations.
That said, the final decision must be made by the Court, after weighing up all the evidence.
The parties did not give oral evidence, so it has not been possible to test their evidence by cross-examination. This means that the Court is usually not in a position to make definitive findings of fact in contested issues. Testing of the parties’ evidence by cross-examination will have to wait for a final hearing, if there is to be one.
Mr Feather put to the Court that it is not possible or appropriate for the Court to make value judgments of the academic merits of the respective schools, a proposition from which Mr Harper did not demur.
I note that the parties’ affidavits have a significant amount of material annexed to them from the schools’ websites and even tables showing the results of the NAPLAN tests released by the Federal Government. The provision of such material is usually unhelpful on an interim hearing and, unless there is some hard evidence of some egregious deficiency on the part of a particular school, parties are usually better off in restraining themselves from putting that information before the Court.
This is not a case where it is necessary to reconsider the question of equal shared parental responsibility. The parties already have final consent orders providing for equal shared parental responsibility, and the orders appear to me to meet the criteria of substantial and significant time set out in s.65DAA(3).
The issue of the child’s high school should be decided by a consideration of her best interests. As the Full Court of the Family Court[36] did in RE G: Children’s Schooling at [66], I propose to identify the s.60CC[37] matters that I consider to hold significance in the present application. Not surprisingly, they are very similar.
[36] Nicholson CJ, Kay and Brown JJ
[37] Formerly s.68F(2)
In my view, the relevant considerations are set out in s.60CC(3), namely:
a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
b)the nature of the relationship of the child with:
i)each of the child’s parents; and
ii)other persons (including any grandparent or other relative of the child);
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
i)either of his or her parents; or
ii)any other child, or other person (including any grandparent or other relative of the child), and with whom he or she has been living;
….
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
…
(m) any other fact or circumstance that the court thinks relevant.
I have also had occasion to consider the decisions of the Full Court of the Family Court in R and R: Children’s Wishes[38], and also in Harrison & Woollard[39]
[38] [2000] FamCA 43; (2000) FLC 93-000
[39] (1995) 18 Fam LR 788; FLC 92-598
The child [X] has expressed a preference to go to [F] School. The reason she gave to the Family Consultant was that she had recently had an argument with her mother and, if she wanted to spend more time with her father, it would be easier if she were at that school, which is his preference.
The Family Consultant did not consider that to be a sufficiently mature reason to make a final choice about schools. I am inclined to agree.
[X] is still only twelve years old, although the Family Consultant considers her to be a mature and resilient child. Still, she is only twelve, and it is clear that she has become well and truly caught up in her parents’ disagreement about the school she should attend.
Her wishes should be given appropriate and careful consideration and not simply treated as a factor in the determination of her best interests without giving them further significance. I have done so in this case.
It is not fair on this child to require her to make a final choice about her school, or to put her in a position where she thinks that she has to make a choice, in order to please one or other of her parents. Whatever school she goes to, her relationship with her parents should remain unchanged.
There is evidence from her mother that [X] has previously given a different view, indicating that she liked [M] School, and was keen to go there because one of her close friends was going to go there. That evidence does not have the same weight as the evidence of the Family Consultant, who is independent of the parties and, importantly, gave oral evidence which was subject to cross-examination.
Nevertheless, I do not regard [X]’s expressed wishes as being of such weight that they should be determinative of the issue.
This child appears to have a strong and positive relationship with each parent, and she spends significant time with each during the school term. It is not surprising that she would be aware of their views, and would seek to please at least one of them.
Whichever school [X] goes to, she will not undergo any separation from either parent. She will still be spending the same amount of time with each one. The travelling distances are a relatively minor consideration.
The Court needs to consider the attitude to the child and to the responsibilities of parenthood demonstrated by each of her parents. Clearly, they have firm views about her schooling, and each one believes that his or her choice of school is in her best interests. The father is concerned that the mother has acted unilaterally in enrolling the child at [M] and then presenting him with a fait accompli, and to some extent she has. This may arise from the nature of the parties’ relationship with each other, which is clearly not particularly positive.
Whilst the travelling times as such are not particularly significant one way or the other, it is a relevant matter that the father has characterised the issue as one of the child’s travelling arrangements when travelling to and from school on those days of the fortnight when she is in his care. He states that [X] will be obliged to travel by train and then to catch to different buses. This flows directly from his own decision that he will not be driving her to and from school once she is in high school. He has either driven her himself or arranged for a family member to do it. Now, however, he is saying that she will have to go by public transport.
Against this, the mother does not want [X] to travel by public transport at present, especially as she is rather small for her age. She proposes to drive the child to and form school, which she can do because of her working hours and the relatively close proximity of her new residence to [M] School. The child will be living in walking distance from the school on the seven days a fortnight when she will be going to school from her mother’s home.
The close proximity of the mother’s workplace and her partner’s workplace to the school is also offered by the mother as a good reason for the child to go to [M] School. If there is a problem when the child is at school, either illness or injury, for example, the mother can be there quickly.
These matters have sufficient weight for the Court to regard them as persuasive that the child should commence Year 7 at [M] School. I have considered the child’s stated wish to go to [F] School, but I do not consider it to be sufficiently persuasive. I accept Mr L’s evidence that the child is resilient enough to deal with this disappointment.
I am not of the view that Order 13 of the Consent Orders gives the mother the power to make the final decision about what school the child should attend for the rest of her school career. The wording of the order suggests strongly that it relates only to the issue of the child’s attendance at primary school in 2008, not for all time.
It is quite clear from Re G: Children’s Schooling that the matter that determines what school a child should attend is the best interests of the child.
Turning now to the issue of the interpretation of order 3(a) that provides that the child will live with father during school terms each alternate Friday from after school until before school Wednesday, commencing the first Friday of school term.
True it is that the first day of the term is Friday 28th January 2011, but that is a pupil-free day. The children are not due to attend school that day, only the teachers. When the order is considered in context, it provides that the child’s time starts “from after school” on Friday, commencing on the first Friday of the school term.
When does “after school” occur on a day when the child is not expected to attend school? There is no “after school” on a pupil-free day, because there is no school. The phrase “after school” sets the time on the day when the child’s time with her father starts, and it can only mean the time when the child’s school lessons for the day have finished and she would expect to go home. Whatever time the teaching staff finish the meeting or training activities on a pupil-free day is irrelevant.
The father’s time with the child during school term will commence after school on the first Friday of her attendance at the school each term. In this case, it will be Friday 4th February 2011.
There have been no submissions on the mother’s claims in paragraph [45] of her affidavit in support of the proposed orders relating to the father’s ensuring that the child attends school by 8.30am and will notify the mother if the child is absent from school or late from school. I am not prepared to make those orders on an interim basis.
I note in passing that the text of the affidavit sworn by the father’s solicitor on 22nd December 2010 in support of the application for review of the Registrar’s decision refers consistently to an organisation by the name of “the Federal Magistrate’s Court”.[40]
[40] Paragraphs [3] and [12]
The name of this Court is the Federal Magistrates Court.
The Court’s name is set out in s.8(1) of the Federal Magistrates Act 1999 (Cth).
The mother’s affidavit affirmed on 5th January 2011 shows her surname as “[omitted]” and the heading describes her as the Applicant. As she has filed a Response, she should more properly be described as the Respondent.
Importantly, after some inquiries from the mother at the hearing, I am satisfied that her surname is not “[omitted]” at all, but “[omitted]”.
It is surely not asking too much of practitioners to expect that the documents they file correctly spell the names of the Court and of their own clients.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 21 January 2011
0
2
2