WALSTEAD & DELMONT

[2021] FCCA 337

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALSTEAD & DELMONT [2021] FCCA 337

Catchwords:
FAMILY LAW – Parenting – review of Senior Registrar’s interim schooling determination - best interests of Child - Orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC

Cases cited:

Goode & Goode (2006) FLC 93-286

Marvel & Marvel [2010] FamCAFC 101

Eaby & Speelman [2015] FamCAFC 104

Banks & Banks [2015] FamCAFC 36

Re G: Children’s schooling (2000) FLC 93-025

Bilz & Breugelman [2013] FamCA 578

Applicant: MR WALSTEAD

Respondent: MS DELMONT

File Number: PAC 5196 of 2020

Judgment of: Judge Newbrun

Hearing date: 17 February 2021

Date of Last Submission: 17 February 2021

Delivered at: Parramatta

Delivered on: 24 February 2021

REPRESENTATION

Counsel for the Applicant: Mr Kenny of Counsel

Solicitors for the Applicant: Mr Ringbauer - Baldock Stacy & Niven

Counsel for the Respondent: Mr Dart of Counsel

Solicitors for the Respondent: Mr Manwaring - Campbell Paton & Taylor

ORDERS PENDING FURTHER ORDER

1. That the Child X born in 2015 attend B School in Town C from the commencement of Term 1, 2021;

2. That the parties forthwith do all acts and things to enrol the Child at B School in Town C from the commencement of Term 1, 2021.

3. These proceedings are forthwith transferred to the Town D Registry of this Court.

4. Vacate the directions hearing in this Court on 22 July 2021 at 9:30am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5196 of 2020

MR WALSTEAD

Applicant

And

MS DELMONT

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is the determination of the Mother’s Application for Review filed 10 December 2020 in respect to the Interim Order made 3 December 2020 by Senior Registrar Tran that the Child X born in 2015 attend D School.

2. The Mother’s proposed Order, in place of the Senior Registrar’s Order, is that the Child attend B School in Town C from the commencement of Term 1, 2021, and that the parties’ forthwith do all acts and things to enrol the Child at that school in Town C. The Father seeks an order that the Application for Review be dismissed.

Material Relied Upon

1. The  Mother relied upon the following documents:

   a)Application for Review filed 10 December 2020;

   b)Outline of Submissions of the Mother dated 17 February 2021;

   c)Affidavit of Mother filed 11 November 2020;

   d)Affidavit of Mother affirmed 16 February 2021 (The Court, having ruled on certain objections to this Affidavit by the Father, struck out paragraphs 5, 6, 9 and 12 of this Affidavit.)

2. The Father relied upon the following documents:

   a)Initiating Application filed 30 September 2020;

   b)Affidavit of Father filed 30 September 2020;

   c)Affidavit of Father filed 16 December 2020;

   d)Case Outline of Father dated 16 February 2021.

3. The following Exhibits were relied upon:

   a)Exhibit A: D School bus schedule;

   b)Exhibit B: Child Inclusive Conference Memorandum to Court dated 12 January 2021;

   c)Exhibit C: Tender Bundle of Father.

Agreed Facts Unless Otherwise Stated

1. The Mother and Father are both aged 32 years. The Father lives in Town D and the Mother lives in Town E.

2. The parties’ married in 2013 and separated in January 2019.

3. D School is about 20 kilometres and 19 minute drive from the Mother’s residence at Town E.

4. B School at Town C is about 20 kilometres and a 16 minute drive from the Mother’s residence, being in the opposite direction to D School and the Father’s residence.

5. During the parties’ relationship they lived in Town D. However, in late December 2018 they moved to Town E (being about halfway between Town D and Town C). Following separation, the Mother and Children moved in with the maternal grandparents for a period and then the Mother and Children moved to rented premises in Town E. Following separation, the Father had moved back to live in Town D.

6. The Father lives in Town D, in close proximity to the D School.

7. The Mother lives in Town E, which is about halfway between Town D and Town C. She currently rents a three-bedroom, two living area farmhouse on a cattle and sheep property.

8. The Mother works as an employed allied health worker. She alleges that she works as an allied health worker for Employer F, City G; that she has been employed at Employer F since 2015; that she has a permanent part-time position, working school hours currently based at B School in Town C; and that she will also be providing her services to both B School in Town H and B School in Town J from Term 1, 2021 for a minimum of 12 months.

9. The Maternal Grandparents live on a property 11 kilometres from Town C on Town E road.

10. The Father’s extended family including Paternal Grandparents live in the City K region.

11. The Father works as a self-employed allied health worker in Town D. He alleges that his working hours are flexible. He alleges that he has always only ever worked part-time since the Children were born so that he could assist with their care.

12. The parties’ Children are X born in 2015 and Y born in 2017.

13. X commenced kindergarten at Town D at the beginning of the school term this year.

14. The Child Y attends preschool in Town C on Mondays and Fridays.

Relevant Legal Principles

1. The relevant principles in relation to parenting proceedings, including Interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.

2. In Marvel & Marvel [2010] FamCAFC 101, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:

   [120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a Child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their Child or Children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123] Later, at paragraph 100 their Honours amplified their comments and said:

   The intuition involved in decision-making concerning Children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on Children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of Children simply to ignore an assertion because its accuracy has been put in issue.

3. Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:

   As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the Child, and for those issues to not be ignored.

4. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects and principles of Part VII of the Act relating to Children that inform the making of parenting orders.

5. In deciding whether to make a particular parenting order in relation to a Child, a Court must regard the best interests of the Child as the paramount consideration: section 60CA of the Act.

6. Section 60CC of the Act provides that in determining what is in the Child’s best interests, the Court must consider the matters set out in subsections (2) and (3). In this context, the Court refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52. In that decision, the Full Court stated, inter alia, that (at paragraph 49), “It is also important to stress here that the requirement to “consider” each factor (under s60CC of the Act) does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582”. Further, it stated, at paragraph 50, “When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the Child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors”.

7. In Re G: Children’s schooling (2000) FLC 93-025 the Full Court of the Family Court of Australia stated:

   [65] First, 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.

   [93] While we have indicated that her Honour was wrong in taking guidance from Newbery’s case, we do think that in considering the effects of any decision as to schooling and like matters, it is proper to consider evidence as to any greater effect upon a resident as distinct from a non-resident parent that a particular decision will have. This is because it is the resident parent who will in most cases have greater day to day responsibilities in respect of the Child and it is, we think, in a Child’s best interests that the resident parent should not be subject to more irksome and unnecessary additional restraints than such commitments already entail.

8. In Bilz & Breugelman [2013] FamCA 578 at [81]-[83] Austin J stated:

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

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

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

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a): the benefit to the Child of having a meaningful relationship with both of the Child’s parents:  a primary consideration

1. The Children have a meaningful relationship with each parent and will benefit from a continuation of those relationships. The Mother has been the children’s primary carer from birth to date with the Father significantly assisting the Mother with the care of the Children during the relationship and post separation.

2. Since early December 2019 the Father began to spend time with the Children in Town D every second weekend from 3 PM Friday until 4PM Sunday and every week from 8:30 AM Tuesday to 4 PM Wednesday.

3. It is apparent that since the Child X commenced kindergarten this year, his ability to spend daytime time with the Father on Tuesdays and Wednesdays (that is, when the Child is attending school) is impractical. The Court refers to the Family Consultant’s discussion relating to the parties’ proposals addressing this issue as follows:

   19.    Mr Walstead was asked he would consider spending a block of time with the Children which would better meet the Children’s needs as X was starting school in three weeks’ time and would no longer be able to spend Tuesdays and Wednesdays with him. Mr Walstead agreed to spending four nights and four days per fortnight with the Children but stated that this would reduce his time with Y because of his employment and her preschool commitments. Mr Walstead agreed after a joint interview and follow up interview that Friday, Saturday, Sunday and Monday nights would best suit his needs.

   …

   “37.  The parents agreed that the parenting arrangements needed to be changed as X is beginning school and will not be able to spend day time with Mr Walstead during the week. At this time it is proposed that the Children spend four nights per fortnight with Mr Walstead possibly five and that Y spend Tuesdays with him.

4. Having referred to the above statements of the Family Consultant, the Court recognises that the parties’ have not yet reached any formal interim parenting agreement, in particular through Court orders. However, and again, the Father’s daytime time with X on Tuesdays and Wednesdays is practically no longer possible with that Child now attending kindergarten during the daytime.

5. If X attends B School in Town C, on the material before the Court, there is a significant prospect that the Children’s meaningful relationship with the Father can be maintained, and that the Children’s meaningful relationship with him should not be detrimentally affected.  In this context, the Court observes that the Children enjoy a meaningful relationship with the Father having commenced, in about early December 2019, to spend time with him every second weekend from 3PM Friday until 4 PM Sunday and every week from 8:30 AM Tuesday to 4 PM Wednesday, being in the aggregate some 4 nights per fortnight. Again, the family consultant (see above) had referred to proposals by the parties’ arising out of the Child Inclusive Conference for the children to spend time with the Father for 4 nights per fortnight.

6. The Court refers to its discussions below under ss (3)(j) (family violence additional consideration) and ss (3)(m) relating, inter alia, to the need to lessen face-to-face changeovers between the parties’ and to lessen the need for the parties’ to have to co-operate in relation to travel arrangements for the children in connection with their schooling. The Court refers to its view that on the material before the Court, there is a significant suggestion that the need for the parties’ to conduct face-to-face changeovers and co-operate in this regard can be lessened if the Child X attends school at Town C thereby reducing the risk of the Mother experiencing fear and anxiety when encountering the Father at face-to-face changeovers and when communicating with him, and lessening the risk of the Children being exposed to conflict at face-to-face changeovers. The Court takes into account in this context the statements of the Family Consultant that it is important that the Children have a meaningful relationship with both their parents and that this is enhanced if the Children are not exposed to conflict at changeovers.  The Court acknowledges that the Family Consultant’s Memorandum remains untested at this interim stage.

Subsection (2b): the need to protect the Child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The Court refers to its discussions above under the meaningful relationship primary consideration, including its references there to its discussions under ss (3)(j) (family violence additional consideration) and ss (3)(m). 

Section 60CC(3) - Additional Considerations

(a) Any views expressed by the Child and any factors (such as the Child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the Child’s views

1. The Child X told the Family Consultant that he wanted to live with the Mother and attend B School where he had friends.  He told her that he had been told that he was attending school in Town D but did not want to go there as he wanted to go to school in Town C.

2. The D School’s Principal, Mr L, stated in a letter dated 15 February 2021, that the Child X’s transition into the school is progressing well, and that generally this Child is happy and that overall he has had a pleasing start to kindergarten.  It is not clear from the contents of this letter as to exactly when Mr L obtained his information in relation to this Child. 

3. On the other hand, the Mother alleges that on 12 February 2021 she attended a parent/teacher interview for the Child with the teacher stating that the Child, inter alia, remains unsettled each morning at school and is often tearful, the Child is seeking negative attention daily, and testing limits and boundaries, the Child does not appear to care about his work and scribbles on his books, and has been asked to sit out of an activity due to him not listening and disrespecting property. 

4. The Family Consultant had stated, inter alia, “X is five and about to begin kindergarten and needs to be in an environment which is familiar to him and where he will continue with already formed peer relationships. He needs to travel to school without conflict and feel confident about travelling. He has spent his preschool education in Town C and appears settled there. Although he is only five he stated that he wanted to go to school in Town C.”

5. The Court would place some modest weight but not significant weight upon X’s views expressed to the Family Consultant about attending the B School in Town C, taking into account in particular the above views of the Family Consultant relating to the child maintaining his social capital by attending the school in Town C. 

6. In this context, the court has not overlooked the Father’s allegations that X has friends in Town D and has at least 2 friends attending the Town D Primary school.

(b) The nature of the relationship of the Child with each of the Child’s parents; and other persons (including any grandparent or other relative of the Child)

1. The Court refers to its discussions above under the meaningful relationship primary consideration.  The Children would appear to have positive relationships with their grandparents.

(c) The extent to which each of the Child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the Child; and to spend time with the Child; and to communicate with the Child

1. Both parents have sought to take such opportunities.

(ca) The extent to which each of the Child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the Child

1. The parents would appear to have fulfilled their obligations to maintain the Children.

(d) 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 or her parents; or any other Child, or other person (including any grandparent or other relative of the Child), with whom he or she has been living

1. The Court refers to its discussion above under the meaningful relationship primary consideration, its discussion under ss (3)(j) (the family violence additional consideration) and its discussion under ss(3)(m).

(e) The practical difficulty and expense of a Child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the Child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. The Court refers to its discussions below under ss (3)(m).

(f) the capacity of:

i) each of the Child’s parents; and

ii) any other person (including any grandparent or other relative of the Child);

to provide for the needs of the Child, including emotional and intellectual needs

1. Subject to the Court’s discussion below under ss(3)(j) (the family violence additional consideration) both parties’ would appear to have such capacities. 

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the Child and of either of the Child’s parents, and any other characteristics of the Child that the Court thinks are relevant

1. Both parties’ allege the Children are generally developing well. The Mother alleges that the Child X has experienced some anxiety by being exposed to the parties’ conflict. The Father alleges, on the other hand, that X is not anxious or a clingy child when he is in his care.

(h) If the Child is an Aboriginal Child or a Torres Strait Islander Child: the Child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right

1. Not applicable

(i) The attitude to the Child, and to the responsibilities of parenthood, demonstrated by each of the Child's parents

1. Subject to the Court’s discussion below under ss(3)(j) (the family violence additional consideration), each parent would appear to have demonstrated appropriate attitudes towards the Children and to their responsibilities of parenthood.

(j) Any family violence involving the Child or a member of the Child's family

1. The Mother described, in both her Affidavit filed 11 November 2020 and to the Family Consultant at the Child Inclusive Conference held on 11 January 2021, an alleged pattern of controlling and coercive behaviour by the Father towards her during the relationship.  The Mother, in her said Affidavit, gives significant particularity relating to these allegations. 

2. The Father denies any family violence during the relationship. He denies the Mother’s allegations of intimidating and aggressive behaviour by him towards her. The Family Consultant observed that the Father did not appear to acknowledge that he was (allegedly) controlling during his relationship with the Mother. 

3. The Family Consultant had stated, inter alia:

   It is apparent that control was a feature of the pre separation relationship, if what Ms Delmont says is correct and it is apparent that coercive control is a contributing factor to the current conflict, this is concerning. If what Mr Walstead said is correct he was not controlling. 

   …

   (X) needs to travel to school without conflict and feel confident about travelling.

   …

   It is important that X and Y have a meaningful relationship with both their parents and this is enhanced if the Children are not exposed to conflict at changeovers, are supported to have relationships with the other parents and other forms of communication such as FaceTime are supported.  Mr Walstead ideally would like an equal time arrangement  because of the conflict the parents are well below the threshold for this and Mr Walstead does not appear to acknowledge that he was controlling during his relationship with Ms Delmont.

4. The Mother alleges that by reason of the above alleged pattern of controlling and coercive behaviour, in particular towards the end of the parties’ relationship, she began to experience intense and increasing fear of the Father. The Court now sets out some brief allegations of the Mother in this context.

5. The Mother alleges that in about early November 2018 she became aware of what appeared to her to be a chronic pattern of control in the parties’ relationship. She alleges that “in these months I experienced an intense and increasing fear and called 1800 RESPECT for advice.”

6. The Mother alleges that about this time she became so afraid of what became daily confrontation with the Father that in the last week or two (of the parties’ relationship), that she let X oversleep on the day so that he would be awake later at night which would make it more unlikely the Father would become confrontational.

7. The Mother alleges that in December 2018 she had not eaten or had a single cup of tea in front of the Father for two or three weeks for being in a heightened state of fear. She alleges that she was in a constant state of nervous tension and suffered stress induced diarrhoea for the last week. She alleges that she had lost enough weight that her clothes no longer fitted her and that her friends and family had allegedly commented on appearing underweight, pale and weak.

8. During a conversation between the parties’ on 1 January 2019, the Mother alleges that the parties’ sat on separate lounges.  The Mother alleges that the Father asked her why she was keeping him at arms length. The Mother allegedly responded, “because you scare me, your moods are out of control, you don’t respect me I’m not comfortable near you so I need some space.”

9. The Father alleges that following separation, he would have liked to have moved to Town C to be closer to the Children and their day care however the Mother asked that he not reside in Town C and he respected that request.

10. The Mother alleges that there has been ongoing hostility between the parties’ post separation.  For example, she alleges that the Father has repeatedly accused her of interfering with the Children’s attachment to him.

11. The Mother alleges that she was feeling harassed by the Father in February 2019 and was concerned about X’s significant level of distress and she contacted 1800 RESPECT with these concerns.

12. The Mother alleges that on 30 June 2019 she was suddenly confronted with the Father waiting alone beside his utility vehicle in an empty car park at Town C, she having expected to see only the paternal grandparents there, and instantly felt afraid.

13. The Mother alleges that by about mid-2019, as a result of feeling harassed and intimidated by the Father, it was arranged that handovers be facilitated by the maternal grandparents or Interrelate which enabled the Mother to have physical distance from the Father.

14. The Mother alleges that post separation she sought to establish a communications book in relation to co-parenting the Children with the Father. She alleges that the Father did not reliably make entries in this book.

15. The Mother alleges that the parties’ ability to productively and reliably co-parent the Children has been unsatisfactory post separation.

16. The Mother has refused to disclose her precise address in Town E to the Father.

17. The Father alleges that the Mother refused to speak to him or communicate with him for significant periods of time since separation.  He alleges that for 9 months from early July 2019 the Mother did not communicate with him at all. He alleges that the Mother has refused to have a telephone conversation with him from separation to date. He alleges that the only conversation he has had with the Mother since separation has been at mediation.

18. At the Child Inclusive Conference held on 11 January 2021 the Father told the Family Consultant that the parties’ relationship remains tense.  The Family Consultant had stated that the parties’ were asked to participate in a joint interview and it was apparent that the parties’ were not comfortable in each other’s presence.  In this context, it is not without relevance that the Father has taken the recent step of buying a dashcam for his car in relation to changeovers with the Mother.

19. The Mother alleges that the Father yelled and verbally abused her during the relationship during arguments and that the Children had witnessed one of these incidents.  The Mother alleges that the Child X’s anxiety increased following the witnessing of that incident.

20. The Court, without proceeding to make any findings of fact, has concerns in relation to these allegations of the Mother relating to alleged controlling and coercive behaviour by the Father. The Court, in this context, takes into account that the Family Consultant also had concerns in relation to these allegations.

21. As discussed further below, the Court would give significant weight to, and would regard as particularly important at this interim stage in relation to the schooling issue, the need to minimise the parties’ face-to-face changeovers and lessen their need to cooperate in relation to the Children (in particular in relation to the children’s transport arrangements to and from school), both with a view to minimising the  Mother experiencing fear and anxiety in encountering the Father during face-to-face changeovers and when communicating with him, and minimising the risk of the Children being exposed to conflict at face-to-face changeovers. In this case, there is a significant suggestion that should the Child X attend the B School in Town C, that such face-to-face changeovers and communication between the parties’ can be lessened compared to this Child attending his present school in Town D.

22. The Father submitted that recent email exchanges between the parties’ indicates that the parties’ are cooperating in managing the Child X’s transition to school, that the parties’ are able to communicate and make arrangements for the Children and that these communication speak highly of the parties’ co-parenting relationship. However, the Court, remains concerned in relation to the Mother’s allegations of, inter alia, controlling and coercive behaviour by the Father, and, for example, refers to the Mother’s email to the Father of 6 February 2021 (see page 10 in Exhibit C) alleging, inter alia, that the Mother remains opposed to additional contact between the parties’, she alleges that conflict has continued and communication has not improved, she has again recently ceased direct email contact to “gain some respite from the constant and taxing process of online discourse”, her reference to what she regards as unnecessary text messages constantly questioning and challenging her decisions as primary carer, and that she is now finding communication inappropriate and is beginning to feel harassed. 

(k) If a family violence order applies, or has applied, to the Child or a member of the Child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter

1. Not applicable.

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the Child

1. These are Interim Proceedings. 

m) Any other fact or circumstance that the Court thinks is relevant

1. The Father alleges that X’s current school at Town D has greater educational and other opportunities for him compared to the Mother’s proposed school for this Child at Town C.  On the other hand, the Mother alleges that her proposed school for this Child at Town C has significant educational and other benefits for the Child. On the material before the Court, and in the absence of expert and other educational evidence relating to one school potentially offering greater educational and other benefits to this Child, there is a significant suggestion on the material before the Court that either school would provide the Child with satisfactory educational and other opportunities. 

2. The Father contends that because the D School is very close to his home in Town D, practically he would be able to attend that school promptly if the need arose for him to do so; for example, if the Child became ill or suffered an injury.  On the other hand, the Mother contends that because she works in the Town C region and that the maternal grandparents live relatively close to Town C, should there be a need for a parent or other authorised adult to attend school in Town C promptly if the need arose, that could be accommodated readily.  In the view of the Court, there is a significant suggestion that the Child could be appropriately attended to, in a timely manner, if the need arose, whether attending either school.

3. Should the Child X remain at his current school in Town D, the Father submits that there are three realistic alternatives as to how this Child would travel to school each morning when the Child is in the  Mother’s primary care living in Town E. The Father could pick up the Child X from M Street near the Mother’s residence and return him to that place after school. Or this Child could get the Town D high school bus from near to the Mother’s residence and then, in Town D, change buses to the Town D primary school bus, with the Father meeting and assisting the Child in becoming competent in transitioning between the two buses.  Or this Child could get the Town D bus service from near the Mother’s residence to the Town D Public Primary school, a bus trip of about 1 hour 14 minutes both in the morning and the afternoon.

4. Should the Child X remain at his current school in Town D, there is a significant suggestion, from the material before the Court (for example, see the parties’ email exchanges of 1 and 6 February 2021; pages 8-12 in Exhibit C), that the Mother is not comfortable with either Child catching a bus on their own and that her preference is that they be driven to their present respective schools by car (see, for example, the Mother’s schedule of transport at pages 11-12 in Exhibit C).  There is a significant suggestion that should the Child X remain at his current school in Town D, the Mother may well become significantly involved in driving the Child X to and/or from his present school in Town D. In this event, the Mother’s employment obligations in Town C and in the Town C region may become more onerous to fulfil by reason of necessary car travel (see, for example, the Mother’s allegations in paragraph 20-22 of her Affidavit affirmed 16 February 2021 including Annexure D). And further, there is a significant suggestion on the material before the Court that face-to-face changeovers between the parties’ would increase compared to if the Children were attending school and preschool at Town C (see immediately below).

5. On the other hand, should the Child X attend the Mother’s proposed school in Town C, this Child, together with his sibling Y, on the days that they are in the Mother’s primary care, can together take a bus from near the Mother’s residence direct to and from Town C, again the distance being about 20 kilometres and about a 16 minute drive. The Mother is comfortable with this form of transport for the Children.  In this context, the Family Consultant had stated, “It is acknowledged that young Children in rural areas do travel long distances to school on buses and if this travel can be minimised it all assists the Child manage the school day”.

6. On the material before the Court, there is a significant suggestion that this transport for the Children, again, travelling together on a relatively short bus trip between Town E and Town C when in the Mother’s primary care, is more practical for the Children; for example, the travel options relating to the Child X changing buses in Town D or travelling on a lengthy journey on the public bus to Town D Public Primary school would be removed.  And further, such transport proposed by the Mother would lessen the need for the parties’ to conduct face-to-face changeovers and communicate with each other (in particular in relation to the children’s school travel arrangements), compared to if the Child X was attending school in Town D.

7. The Court takes into account that the Mother works as an allied health worker at her proposed primary school for the Child X in Town C one day each week.

8. The Father contends that there is no reason why the Child Y could not attend the preschool in Town D. However, there is a significant suggestion on the material before the Court that this Child’s stability may well be ensured by remaining in her preschool at Town C with her existing peers.

9. Should the Child X now change schools, he would only have been at the Town D Public Primary School for about three to four weeks.  In the view of the Court, this is not such a period of time that would significantly militate against him transitioning appropriately at school in Town C. And again, as discussed by the Family Consultant, the Child could continue with his peer friendships if attending school in Town C, having attended preschool in Town C previously.

10. The Court recognises that should the Child X attend primary school in Town C, the Father may well have to personally carry out more driving in the context of spending time with the Children (whilst noting that it may be possible for the Father on occasion to have the Child or Children utilise the direct bus from near the Mother’s residence to Town C) or simply travelling to the school at Town C otherwise. And the Court recognises, and the Court has considered, that X attending primary school in Town C may well result in this Child, if not both Children, spending more drive time with the Father (with the Court also recognising that when X is spending time with the Father, he would have no significant travel time from the Father’s residence to school in Town D). In the view of the Court, the potential burden upon the children of such additional travel is outweighed by other considerations previously discussed under s60CC.

11. Further, the Court observes that the Father has flexibility in his employment and he is not the Children’s primary carer (whilst recognising that his time with the Children may increase, taking into account, for example, whilst not determining, the recommendation of the Family Consultant that the Father’s time with the Children should be five days per fortnight). 

12. As previously discussed, inter alia, there is a significant suggestion on the material before the Court that should the Child X attend school in Town C, the  Mother, as the Children’s primary carer, can benefit from face to face changeovers and communications with the Father in relation to the Children being reduced with resulting lessening of the Mother’s fear and anxiety in encountering and communicating with him, the bus journey for the Children can be simplified when in the Mother’s primary care (a direct relatively short bus trip from near the Mother’s residence to Town C), the Child X can progress to kindergarten in Town C with already formed peer relationships, and the Mother’s work obligations can be more readily fulfilled without time constraints; such benefits can enure to both the Mother as primary carer and the Child X if not both Children. 

Summary

1. Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the Children to make the following interim Orders:

2. That the Child X born in 2015 attend B School in Town C from the commencement of Term 1, 2021;

3. That the parties forthwith do all acts and things to enrol the Child at B School in Town C from the commencement of Term 1, 2021.

4. These proceedings are forthwith transferred to the Orange Registry of this Court.

5. Vacate the directions hearing in this Court on 22 July 2021 at 9:30am.

I certify that the preceding eighty five (85) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate: 

Date: 24 February 2021