Watling & Watling
[2022] FedCFamC2F 13
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Watling & Watling [2022] FedCFamC2F 13
File number(s): ADC 5280 of 2019 Judgment of: JUDGE BROWN Date of judgment: 14 January 2022 Catchwords: FAMILY LAW – Parenting issues – interim issues regarding care arrangements of children aged 7 & 5 – parties unable to agree which primary school children should attend – children live more with mother than father– parties in dispute as to who of them should have the predominant care of the children – mother has moved to a suburb distant from former family home – she seeks to move older child to primary school convenient to her – father seeks older child should continue to attend school of his preference close to former family home and younger child should be enrolled at same school cultural – practical considerations – best interests. Legislation: Family Law Act 1975 (Cth), Part VII, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65DAC Cases cited: B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Eden & Eden-Proust [2011] FamCAFC 138
Goode & Goode (2006) FLC 93-286
Jurchenko & Foster (2014) 51 Fam LR 588
Mazorski v Albright (2007) 37 Fam LR 518
MRR v GR (2010) 240 CLR 461
Russell & Russell & Anor [2009] FamCA 28
U v U (2002) FLC 93-112
Zahawi & Rayne [2016] FamCAFC 90
Division: Division 2 Family Law Number of paragraphs: 202 Date of last submission/s: 17 December 2021 Date of hearing: 14 December 2021 Place: Adelaide Counsel for the Applicant: Mr Childs Solicitor for the Applicant: CG Family Law Counsel for the Respondent: Mr Clarke Solicitor for the Respondent: Clarke Hemmerling Lawyers ORDERS
ADC 5280 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WATLING
Applicant
AND: MS WATLING
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
14 JANUARY 2022
THE COURT ORDERS THAT:
1.The parties have equal shared parental responsibility for the children of the marriage X born in 2014 and Y born in 2016 (hereinafter referred to as “the children”).
2.The mother be authorised by this order to enrol the children at B School, Suburb C for the start of the school year in 2022 and the children attend the school for their primary education unless the parties agree in writing otherwise.
3.Paragraphs 2 to 12 (inclusive) of the orders made by consent on 10 December 2020 do continue until further or other order.
4.The final hearing fixed for 7 February 2022 be vacated and the matter be listed for directions on 9 February 2022 at 9.30am to determine what form of dispute resolution process should be engaged and when it should occur.
5.Should one or other or both of the parties be legally aided, these reasons for judgment be provided forthwith to the Director of the Legal Services Commission of South Australia.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Watling & Watling has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
Mr Watling (“the father”) and Ms Watling (“the mother”) are the parents of X born in 2014 and Y born in 2016.
Complex and entrenched controversies have arisen as to which primary and secondary school the two children should attend. These issues have festered since the parties’ separation, now over two years ago. Given the fact that Y must start primary school in January of 2022, the court must now resolve the issue, as best it can, in the context of a short form hearing.
Essentially, when the parties separated, they lived in a northern suburb of Adelaide and had made tentative arrangements for X to attend a private school close by. Their separation derailed the consensual implementation of this plan. The mother moved to a rented home in a south eastern suburb of Adelaide.
As a consequence, it was logistically challenging for her to get X to and from the school initially selected. An impasse developed, which was broken when the father confirmed the child’s enrolment at the school initially selected and arranged for her to attend it from 2020 onwards.
From the mother’s perspective, the father had unilaterally arranged for X to attend the convenient school for him, which although previously endorsed, was now unsuitable given her change of residence and the fact that she had hitherto been the predominant provider of care for the children. Financial issues also arose, as the mother was concerned the school fees were beyond her means.
From the father’s perspective, there was a pressing need for a decision to be made and he made it. He does not consider it unilateral given the convenience of the school for him, his employment commitments and the fact that the mother had previously endorsed the school, which he believes is an excellent one.
During 2020 and 2021, the mother, albeit under sufferance, lived with the decision. She is no-longer prepared to continue to do so. She remains resentful about what she would characterise as the father’s unilateral decision to confirm X’s enrolment and wants both children to attend a school close to her home at the start of the 2022 school year. It being her position that children need to attend the same school and it should be the one of her preference.
The father agrees the children should attend the same school. Clearly, the prospect of the children attending two different schools would be frankly bonkers. In this context, he does not want X to be unsettled by a change of school and therefore the obvious solution, in his view, is for Y to attend the same school as her sister, which he asserts will provide an excellent standard of education for both children and is proximate to the child care centre Y has hitherto attended.
From the father’s perspective, the mother’s decision to move to the suburb, which she did, was also tinged with by issues to do with her preference and personal convenience and was not child focussed. He questions why she did not find accommodation closer to the former family home to avoid disruption to what had been agreed about the children’s education.
He believes her move was made for selfish reasons and was motivated by the mother’s desire to make it as difficult as possible for him to remain engaged in the day to day lives of the children to the previous optimal level, which had existed whilst the parties’ relationship remained extant. From his perspective, the mother’s rented accommodation is not permanent and she could obtain housing closer to the school which X has attended for the past two years.
More significantly, although it may not be the logistically optimal school for her, given where Ms Watling lives and works, she has demonstrated that she can cope with it because of what has happened over the past two years. In his view, this fact, when combined with the obvious upset which will be occasioned to X, if she must change schools and leave her friends there, tips the balance in favour of him.
Given the moment of the decision required to be made and the heat the controversy has generated between the parents concerned, I elected to take oral evidence from each of the parties concerned and allow brief cross-examination of each of them. In addition, I took evidence from the court appointed child dispute counsellor, who had been assigned the task of preparing a family report in the case.
This counsellor is Ms D, who identified continuing acrimony between the parties’ post-separation, as her preeminent concern so far as the children’s on-going emotional wellbeing was concerned. She also recommended that the children be enrolled at a school closer to the mother’s residence.
It is Ms D’s view that X is a robust child emotionally and will cope with the change involved. Ms D has significant reservation that a shared care regime would work for these children, given the acrimony between their parents and their compromised communication skills. In these circumstances, she points to the fact that, at least for the next few years, the children will be living more with their mother than their father and this tips the balance in favour of the children attending the more convenient school for her.
Needless to say the father does not accept this recommendation. His view is that a regime of parenting posited on equal time, as soon as practicable, is the best outcome for the children. Regardless of this he is, however, open to the children attending a school at a midway point between the parties’ respective homes. However, the mother views this as an artificial compromise, designed only to placate each of the parties and assuage their feelings and, as such, patently not in the best interests of X or Y.
The school concerned is E School situated in Suburb F, which is north east of the Adelaide CBD. Neither party seriously advocated this as a satisfactory outcome to the case. Its only attraction is as a compromise but neither party is prepared to make such a compromise willingly and, in my view, it would be capricious of the court to impose such a compromise on the parties, given the paramountcy of the children’s interests.
Ironically, a final hearing has already been allocated, which will provide three days for the adjudication of other issues relating to X and Y’s parenting, chiefly whether the children should be cared for in an equal time arrangement – the father’s preference; or in a regime which would see the mother providing more care for the children. This hearing is currently scheduled for 7 to 9 February 2022. This fixture was appointed on 31 May 2021.
Regrettably, the determination of the interim issue has been delayed by well-meaning but fruitless attempts to see if the school issue could be resolved through mediation, at both the Legal Services Commission (3 December 2020) and through intensive court based family dispute resolution conferencing (30 November 2021), ordered as a consequence of the national call over initiative, which led to the intervention of another judge of the court in managing the case in the latter half of 2021.
Although this final hearing is relatively imminent, from each party’s perspective, the need to determine school arrangements is more pressing. This issue is influenced by a number of factors, which include the logistics of where the parties currently live; their financial resources; their respective employment commitments; and above all, the impact on X and Y themselves and what is the best outcome for each of them.
I would be naïve to consider that the interim hearing does not have tactical implications for the parties relating to the achievement of their respective aspirations regarding the final outcome of the case. Necessarily, each of them is likely to perceive that its outcome will be determinative of the likely outcome of the final hearing. This has inevitably led to the interim proceedings being so hotly and bitterly contested.
For obvious reasons, whichever school is ultimately selected, it must influence whether or not it is reasonably practicable for the children to be parented in an equal time regime. As such, I acknowledge each party has much at stake in the current proceedings.
It was for that reason, I took the unusual step of deciding to have the mini hearing and take evidence directly from each of the parties and Ms D. In many ways I regret that I did. It has not made the decision any easier.
More significantly, I regret the potential for the final hearing to be rendered otiose with the perception that one of the parties has been unfairly disadvantaged. In addition to this it cannot be considered to be a child-focussed outcome for the same issues to be canvassed again, albeit potentially at greater length, only a matter of weeks after this hearing, with the inevitable consequence of the mistrust between the parties being exacerbated rather than alleviated.
Accordingly, I fear that the necessarily bureaucratic and adversarial process of resolving the issues in dispute, in the case, has unwittingly had the effect of putting the horse before the cart. I am, in effect, required to determine the issue of schooling prior to the big ticket item of shared care, when the outcome of the interim hearing must contain the significant potential to be determinative of the final issue.
As such, inevitably, following this interim case, one party will feel aggrieved and unheard by the court and this will drive the continuing acrimony between the parties, already unacceptably high, with obvious implications for the emotional wellbeing of their children.
It was because of these factors, I elected to take evidence from each of the parties and Ms D. As such, I hoped it could not be said that I had made the relevant decision without any direct reference to the parties themselves or that the decision itself was unnecessarily artificial or arbitrary in nature.
I wanted the parties to be aware that I personally acknowledged the momentous nature of the decision for each of them by giving them, at the very least, the semblance of having been directly heard by the court. This, after all, being the entitlement of all citizens who request the court to resolve their disputes, including those relating to the care of children.
Although I continue to have reservations about having to deal with the seminal issue of schooling prior to the other contentious issues, I feel that something has been achieved thorough the recently concluded hearing, as I have been able to gain some insight into the personality and individual motivations of each of the parties.
After having seen and heard each of them in the witness box, including asking them myself a number of questions, my impression of each of them is that they are quite different temperamentally but share a number of attributes and traits. These can be summarised as follows:
·They are intelligent and responsible citizens;
·They each love X and Y profoundly;
·They are good and capable parents;
·They are honest individuals, who have been frank in their evidence to their court;
·They share one attribute - a capacity for implacability and stubbornness.
However, the process upon which I embarked, still leaves me in a quandary. The case remains finely balanced. It presents no obvious right answer. Each party is able to advance powerful and compelling reasons as to why his or her position regarding the school is to be preferred.
The deadlock created by the individual decisions each of the parties made in the emotional maelstrom of their separation remains unresolved and I must resolve it, regardless of the fact that the final hearing may be rendered futile. Necessarily this situation must create, in the minds of the parties themselves, one winner and one loser. This is not helpful for any on-going co-parenting regime, particularly one which is posited on equal time.
As such, the possibility that the parties will have to go through the process all over again, in a matter of weeks, in respect of an issue of obvious significance both to the parties themselves and their children, namely the controversy of shared care, for little ultimate advantage or point, given the outcome of these proceedings, causes me deep foreboding.
Such an outcome cannot be helpful for the children or in keeping with the legislatively endorsed principles applicable to child related proceedings contained in Division 12A of Part VII of the Family Law Act 1975.
These principles direct the court to consider the impact of proceedings on the children concerned and manage the conduct of cases in a way which maximises the potential for parents to have a cooperative and child-focussed relationship in future.
It is highly regrettable that the court must make this decision in lieu of the father and mother. Necessarily, whatever is the outcome, one parent will feel aggrieved and unheard by the court. This has the prospect to generate more conflict between the parties, who already have a fractious and difficult relationship.
The paramount factor to be deployed by the court in determining the appropriate school for the children is their best interests. I must not lose sight of the fact that, although I am adjudicating a dispute between the father and the mother, it is the interests of their children which is paramount, not the rights and entitlements of their mother and father.
However, the simple fact that a total stranger – namely a Judge in court – must determine what is the best school for X and Y is axiomatically not in their best interests. However, the proper regulation of any free and open society requires that there be an independent and rational process of resolution of disputes arising between separated parents. That is not to say such a system, though necessary, is helpful to children. Rather:
[W]hat is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests.[1]
[1] See Zahawi & Rayne [2016] FamCAFC 90 at [47].
In this case, the parties have been given ample opportunity to resolve the issue of schooling consensually. They are unable to do so. Accordingly the decision must fall to the court, irrespective of the risks incumbent in such an adjudication process. With a heavy heart, I must discharge that duty.
As I understand it one or both of the parties are legally aided. I will direct that these reasons be provided to the Legal Services Commission so it can consider whether aid should be advanced for the final hearing.
As a consequence, it may be necessary to vacate the final hearing regarding final parenting orders. However, regardless of that the children and the parties need to know where they are in respect of the schooling issue from the start of the 2022 school year. The parties remain in dispute about parenting issues, specifically and primarily time arrangements during school terms; whether one of them can veto the children holiday overseas or interstate with the other; and whether handovers can be electronically recorded.[2]
[2] See Notation B to the Order of Judicial Registrar Lovell-Jones dated 30 November 2021.
Interestingly, following the Dispute Resolution Conference convened by Judicial Registrar Lovell-Jones on 30 November 2021, at which the parties were able to agree arrangements for the recent Christmas school holiday period, the parties each consented to the following notation appearing in the resulting order:
The parties are of the view that a further Dispute Resolution Conference following the determination of the schooling issue by Judge Brown may assist the parties to resolve the outstanding issues. The parties seek a further Dispute Resolution Conference in either the last week of January 2022 or the first week of February 2022. The parties are of the view that a late January or early February would allow both parties to consider how the children manage the week about arrangements in the school holidays. The Applicant and Respondent acknowledged that a notation to this effect would be made in these Orders. [3]
[3] Ibid at Notation D.
Although, in my view, this is a laudable aim, time is running out for such an intervention to be organised. The financial implications for a three day final hearing are significant, if either that burden is to fall on the public purse, if the parties are legally aided or the parties themselves are going to fund the case.
Again, a balance may have to be struck between the advantages of the case being finalised as quickly as possible and the benefits of the parents themselves being able to finalise it consensually.
THE EVIDENCE
The father was born in 1976. He has re-partnered but has elected not to provide details in this regard. The mother was born in 1976. She has not re-partnered and would like to reduce her hours of work. The parties married in 2013 and finally separated in May 2019 when X was just four and due to start pre-school the following January and Y was not yet three.
Prior to separation, each of the parties was involved in full time work and accordingly both were involved in providing primary care in the absence of the other, augmented by professional child care. The parties disagree about the degree of involvement of the other with the mother asserting the she has historically been the children’s primary carer. What is noteworthy, in this regard, is that there can be no doubt that Ms Watling has provided more of the children’s primary care, during the school week, since separation.
At the date of separation, the parties lived, as a family, in a house owned by Mr Watling at G Street, Suburb H. He still lives there, having paid Ms Watling a sum of money to acquire her interest in the property. He does not want to move and considers the property his long term family home. In his view, it provides comfortable accommodation for him and the children and they are each accustomed to it.
Following separation, Ms Watling elected to move to rented accommodation located at J Street, Suburb K, which is an eastern suburb of Adelaide, approximately 17 to 18 kilometres south of Suburb H. The parties disagree about how difficult it is to move between the locations, but agree it depends on the direction and time of travel, particularly whether it occurs at peak hours.
It is the mother’s case that she moved to Suburb K because she liked the suburb and it is close to relatives, particularly her sister, who provides her with emotional support, which she is sorely in need of. Her recent oral evidence is she has a lease of the property until the middle of 2022. From the father’s perspective, the move was unilateral and ill-considered, as it impacts upon his aspiration to be extensively involved in providing care for the two children concerned.
Mr Watling is very focussed on the children having the best possible education, which he (and to some extent, Ms Watling) can afford. Prior to separation, the children attended the L Early Learning Centre in Suburb M. The ELC is on the campus of N School. Suburb M is the adjoining suburb to Suburb H and a short walk from the father’s home. Y still attends there.
After separation, the parties had an informal agreement that they would contribute equally to the costs of the two children concerned. In addition, prior to separation, it appears more likely than not that the parties had a tentative agreement that X would attend N School because of its proximity to their then family home. It would seem to be the case that an enrolment was made, to this effect, for X to start at N School from the start of the 2020 school year.
On her move to Suburb K, the mother became concerned about the practicality, from her point of view, of X going to N School and the financial implications, for her, of X’s fees at the school. At this stage, it was Ms Watling’s preference that X (and in time, Y) attend Suburb K Primary School or B School , Suburb C, which is the adjoining suburb to Suburb K. Both the Suburb K Primary School and B School are very convenient to Ms Watling’s current accommodation and it is easy to walk from there to each of them.
As both were working, their practice was to pay for child care equally. It was the father’s understanding that this arrangement would continue vis-à-vis private school fees, when the children started school. The viability of this apparent agreement and its financial implications are highly controversial in the light of their subsequent separation.
The parties’ separation, as many are, was extremely difficult and traumatic for each of them. The father describes the mother as erratic and avoidant, in her behaviour towards him. For her part, the mother describes the father as controlling and emotionally abusive, in his behaviour towards her.
Notwithstanding these difficulties, the parties were able to reach some form of provisional arrangements in respect of care arrangements for X and Y through a process of community based mediation in mid-October of 2019. It seems likely that the most influential factor, at this stage, was the tender years of the children.
In a document entitled Heads of Agreement, they agreed that the children would live with their mother and spend time with their father on each weekend, with the time to be extended on the fourth weekend of each month to overnight Monday and with additional time during school holidays.
The document makes scant and somewhat ambiguous reference to educational arrangements, which were, then as now, highly controversial, given the mother had moved away from Suburb H. The relevant clause reads as follows:
Both parents agree to take all steps necessary to reach a joint and informed decision about the children’s school and child care arrangements and enrolments, noting the child X is currently enrolled at N School and the mother is making enquiries with B School as another option.
More significantly, these Heads of Agreement have provided the framework for day to day care arrangements for X and Y, whilst their case has proceeded through the court process and whilst the children have attended both primary school and ELC in the Suburb M area.
Essentially, this arrangement sees the children being driven from the mother’s home in Suburb K to Suburb M on each Tuesday, Wednesday, Thursday and Friday in order for them to attend school and ELC. She collects them from Suburb M in the afternoon each Monday, Tuesday, Wednesday and Thursday, other than on the Monday of the fourth week of a cycle, when the father collects them, as he does each Friday for his weekend time. The father drops them back on each normal Monday.
This is the central plank of the mother’s case. From her perspective, it is grossly unfair that she is doing the vast majority of the school/ELC pickup and drop offs because she is the children’s main provider of care, a state of affairs which she contends should continue for the foreseeable future, whilst the children are little. It is particularly unfair given her view that the father foisted N School upon her.
In what must be considered an uncertain environment, the father commenced the proceedings in December of 2019, only a few weeks after the mediated agreement. The motivation for his application seems to have been the uncertainty about where X would go to school in 2020 and afterwards. He was critical that Ms Watling had chosen to relocate to Suburb K, given his view that she had earlier consented to X’s enrolment at N School.
He prepared his own application, which sought some eighty eight final orders. In my view, this speaks to his methodical personality. Essentially, he seeks shared care in respect of time and the allocation of parental responsibility equally on the parties. In his initial affidavit, he raised significant concerns about what he regards as the mother’s unhappy and dysfunctional family background.
In mid-December of 2019, Y underwent a tonsillectomy. In an affidavit filed on 4 February 2020, the father was critical of the mother’s approach to the child’s post-operation recuperation and provided the court with angry email exchanges between the parties. He alleged Ms Watling was secretive about medical appointments for the children and was vague or did not reply when challenged about her conduct. He was critical that the mother had provided the children with leather sandals which blistered their feet.
In support of his position, the father provided the email correspondence between the parties relating to the issue. I appreciate the emails, when composed, were not intended to be viewed by someone such as me and it is highly likely that each such email represents an instant or knee jerk response to a stressful situation and therefore cannot be considered any sort of calm and considered response to the other. The fact remains, however, that Mr Watling has provided them to me and I regard them as something of a vignette of the manner in which the parties communicate with one another, albeit it at a difficult point of their post-separation parenting relationship.
The chain begins with the mother reporting X had a temperature, which the doctor had diagnosed as being viral. Y was reported to be coughing but not having a temperature and therefore her operation would occur as scheduled. She concluded the email with the following:
I will be staying with her during the hospital stay I will call u to discuss the fasting arrangements and what to do as you are not a nurse or a mother.
The nature of the father’s reply indicates that he found this email to be patronising and dismissive. He replied as follows:
I will be staying with her too. Don’t call me, I do not wish to be talked down by you, I have asked you to send this information on before the day before. I have spoken with her doctor and have all the information now. Don’t give me the nurse and mother speech as if you were any kind of health care worker or mother you would have realised that Y is still not well and has a throat infection still…I may not be a nurse or a mother but I know when my girls aren’t well and act on it instead of ignoring or not realising.
The parties’ parenting relationship seems to be both conflicted and competitive. They are each dismissive of the other. This is manifest in the style in which they communicate, which is marked by a degree of mutual disparagement. It is the mother’s view that the father’s mode of communication with her is characterised by badgering and her being accused, by him, of things she has not done. She asserts that he attempt to control everything to do with the children, including Y’s operation.
The mother responded to the father’s application on 6 February 2020. On a final basis, she proposes the children live with her and spend time with their father on alternate weekends from after school Friday until 5.00 pm the following Sunday; in the other week from after school Thursday until the commencement of school the following Friday; for half of each school holiday period on a week about basis, unless agreed otherwise; with special occasions being shared. From her perspective, this would be a fairer division of time and would give her an opportunity to spend time with X and Y on weekends.
Mr Watling did not directly refer to the vexed issue of X’s schooling in the context of what seems to have been a worsening parental relationship arising in the aftermath of the controversy surrounding Y’s tonsillectomy. He did, however, assert that he and Ms Watling had a verbal agreement to pay half of the children’s care costs each after separation. In this context, he complained that the mother had refused to contribute to any of X school fees on the basis that N School was too expensive for her, whereas she viewed B School as affordable.
Mr Watling and Ms Watling are parents of the modern age. Each of them must balance the demands of parenting with the financial necessity of having to earn a wage and keep a roof over their respective heads and those of X and Y. Their salaries are similar. Neither can be regarded as being wealthy in this day and age. Each faces a weekly struggle to make ends meet.
Mr Watling is employed as a professional by Employer O. He has worked for Employer O for close to a decade. He works at P Street, in the city of Adelaide. He is required to work 30 hours per week, which can be flexible. He is also able to work at home to some degree. His annual salary is $72,000.00.
Ms Watling is employed as a health care worker by Company Q, which is based in Suburb R, a northern suburb of Adelaide. However, she mostly works in the community assessing and assisting her patients, most of whom are elderly and living in their own homes. As a consequence, she does not have to go to the office regularly. Her oral evidence being that she spends a lot of time in her car.
She too has flexible hours but works approximately 30 hours per week on Mondays, Tuesdays, Wednesdays and Fridays. She drives from patient to patient in her own car and is reimbursed for this. She estimates her salary to be around $70,000.00 per annum. Her elderly car has recently broken down causing her significant expense. Her major weekly expenditure is her rent of $330.00 per week.
The case came into court for the first time on 11 February 2020. In her supporting affidavit, Ms Watling alluded to the fact that X had in fact started at N School a few days earlier. She deposed as follows:
X has started school this year and I asked Mr Watling to agree to her attending either of the schools near my home and Mr Watling refused. I advised Mr Watling, through my lawyers, I could not contribute to the school fees for X at N School where Mr Watling insisted she attend. Although Mr Watling and I had not agreed to a school Mr Watling began talking to X about N School and getting her excited about attending including taking her to try on uniforms without my knowledge.
I felt I had no option but to agree but could not pay the fees so agreed on the condition Mr Watling pay the costs of her attendance which he had proposed. Mr Watling agreed… On this basis X commenced N School on 28 January 2020.
Mr Watling is now saying he wants me to pay all of the childcare fees as he now states he cannot afford to pay for X[‘s] schooling and after school care as well as child care fees…
Mr Watling is aware that X was accepted to attend Suburb K School and had a verbal acceptance to B School, both of which are significantly cheaper than N School and I could have contributed to the fees. Also they are within walking distance from my home which would have been less travel for the children and that could have made friends with other children in our neighbourhood.
X could not attend either school as Mr Watling contacted them both and advised he did not provide consent for them to be enrolled. Instead Mr Watling attended X’s child care on the day of reception induction and took X to N School for induction. I told Mr Watling this was unfair on X and not on but he ignored me and said that because we planned to send X to N School while we were together I had no choice.[4]
[4] See mother’s affidavit filed 6 February 2020 at [34] – [38].
From the mother’s perspective, the decision to enrol X at N School was the father’s alone and took place in the face of her specific objection to it on both practical and financial grounds. In this context, she asserts that the children have been negatively impacted by their parents’ separation and the resulting conflict between them.
Without, at this stage, attempting to attribute fault for this invidious situation, it is hard to quibble with her conclusion regarding the negative consequences arising for the children of the current state of affairs.
However, Ms Watling did not attempt to change X’s enrolment at the first direction date, nor did Mr Watling attempt to change the care arrangements flowing from the Heads of Agreement. However, with the benefit of hindsight, it is apparent that neither was content with the status quo.
On the first direction date, the parties were referred to a family dispute resolution conference in mid-May of 2020, following which Family Consultant Ms S, who wrote as follows of her interview with the parties:
Both parties acknowledged that communication was very limited, and at times has the propensity to become volatile. The accounts given by the parties during this preliminary assessment suggested that the current communication could not support a positive co-parenting relationship, appearing highly conflictual and adult focussed. The impression portrayed appeared consistent with a sense of entitlement.[5]
[5] See Child Dispute Conference memorandum dated 19 May 2020 at [15].
Given what I have seen of the parties, including their written correspondence with one another, this seems patently to be the case. The parties’ co-parenting relationship appears to be highly conflicted. They also appear to me to have quite different values, particularly in respect of money issues.
The parties took their competing positions to Ms D in the family report process, which was ordered by the court in late May of 2020. She wrote of the parents, in the family report of September of 2020, as follows:
The sense of acrimony between the parties has continued post-separation, with limited mutual goodwill, frequent disputes and a mutually fixed perspective about the other.[6]
[6] See Family Report dated 24 September 2020 at [68].
Ms Watling indicated her view to Ms D that Mr Watling is “fixated on achieving week about time” and, by necessary implication, will stop at nothing to achieve such an outcome, regardless of its possible emotional implications for the children. Necessarily, she characterises herself as the more child-focussed and sensitive parent.
Mr Watling views the mother as reactive and disorganised. He acknowledged to Ms D that he and Ms Watling “tended to clash over their parenting styles”. He views Ms Watling as withholding information from him and being obstructive of his desire to have a shared parenting regime.
On a positive note, Ms D is of the opinion that X and Y are happy, well cared for and much loved children, who each have a strong and secure attachment to both their father and mother. Given these circumstances, for obvious reasons, each parent will wish to play as big a part, in making major long-term decisions relating to X and Y’s care, welfare and development.
Ms D provided this context for the current dispute between the parties:
X is in reception at N School, Suburb M. Enrolment in primary school was an issue between the parties, with neither compromising until the father eventually enrolled X at N School shortly before the commencement of school in January 2020, suggesting this had been the parties’ school of choice when in relationship.
Y attends childcare four days per week, at the childcare centre adjacent to N School. She is due to commence school in 2022.[7]
[7] Ibid at [4] – [5].
Ms D noted neither child had any specific learning challenges and it seemed that X has adapted well to primary school. Ms D provided reasonably extensive oral evidence during the short hearing of 14 December 2021. She described X and Y as lovely and well cared for children.
She also considered that the parties themselves presented quite differently. In this context, Ms D noted the father’s insistence that he would take his application for week about care to trial. Ms D reported as follows:
Mr Watling indicated that he would pursue his proposal for week about care to trial proceedings. He also pointed out that the children presented as ‘untidy’ in the care of the mother, often lost belongings (uniforms and school books) and were more compliant with routine and organised with him. To sum, he suggested that he offered the children a parenting experience that should be maximised immediately.[8]
[8] Ibid at [30].
In her interview with Ms D, the mother acknowledged the involvement of the father in providing care for the children but characterised his parenting style as being rigid and demanding. Ms D reported her interview with Ms Watling regarding Mr Watling as follows:
He [the father] was a highly anxious helicopter parent, often implying the children required attention when they did not, whereas she was more stand back so they can explore. She agreed the majority of their disputes related to their different approaches to parenting, including bedtime routines. She stated that the general division of care (primary care when the other was at work) prompted the parties to make our own (parenting) decisions independently during those times.[9]
[9] Ibid at [41].
In her oral evidence, Ms D provided her opinion that children thrived best in a shared care regime if the care provided by each parent to them was consistent and reliable in its nature. In this context, from her observations and interviews with each of the parties, Ms D did not consider there was such a level of consistency in how the parties approached the parenting of X and Y.
I appreciate that there are likely to be subjective distinctions in regards to any assessment of the parties’ respective parenting capacities. One style of parenting is not necessarily superior to another, merely different. In this case, Ms D had nil concerns about how each parent interacted with the children and both were described as being child led, verbally affectionate, sensitive and responsive in their involvement with X and Y.[10]
[10] Ibid at [64].
Ms D spoke to both children. Y was reported as being very shy and nonverbal, which is hardly surprising given her age. X was positive about each of her parents and was able to articulate to a limited degree what was her current parenting experience of living more with her mother than her father. She indicated that she want to keep the care arrangements the same.[11] Given X’s tender years, in my view, considerable care needs to be taken before determining that this can be considered her idiosyncratic preference.
[11] Ibid at [61].
In her oral evidence, Ms D accepted that the current bitterly contested dispute about which school the children should attend had had a long gestation and had tactical significance in respect of the long term issue of shared care. In this context, she noted, as is axiomatically the case, the mother had both the majority of care and the majority of travel.
As I observed earlier, this is not a matter involving serious concerns of child abuse or neglect, as regrettably is the case in many other children’s cases coming before the court. However, inevitably, experts such as Ms D, must make some assessment of the parental capacity of each of the parties. I acknowledge that given her limited time with each of the parents and the somewhat artificial context in which she made her assessment, this must be a somewhat haphazard process.
However, at this juncture, Ms D’s assessment is the best one available to me and it accords with my own assessment. Ms D opined as follows:
[T]he children present as receiving positive care and relationship from each party. Whilst Mr Watling spoke of the children’s resistance to returning to the mother, Ms Watling was able to display more a child focussed approach which reflected her awareness of the children’s adjustment to the separation and leaving the family home; this also mirrored her increased insight and reflective capacity in discussing her parenting more generally.[12]
[12] Ibid at [70].
Ms D agreed that the case was a challenging one, which provided no obvious solution, given the entrenched logistical issues and the long standing barriers in the way of the parties having a more constructive parenting relationship. But, by a metaphorical whisper, the import of her evidence was that the mother was the more insightful parent and the one more in tune with their needs.
In this context, Ms D did not favour either of the parties’ proposal for a change of care in the short to medium term – the father’s proposal to go immediately to equal time; the mother’s proposal to rationalise the father’s time to alternative weekends, with an intervening period in the school week, which would have the benefit of allowing her to work less and have more free time.
The major issues in the case, from Ms D’s perspective can be summarised as follows:
·Entrenched animosity between the parties;
·The workability of week about care for young and very young children;
·Logistical arrangements generally, including the mother’s lack of free time under the present regime.
Ms D’s evaluation of the case can be summarised as follows:
·A week about arrangement for children of the ages of the children in this case needed to be supported by a functioning and positive co-parenting relationship. The parents in this case did not have such a relationship, given the high conflict and animosity between them;
·Children of the ages of X and Y required a high level of care in respect of school, extra-curricular activities. As such, in the present matter, it was better that one parent had greater responsibility for the organisational aspects of the children’s care;
·The mother’s proposal had the potential to increase handovers and therefore conflict but reduced paternal time, which was counter indicated given the positive aspects of the children’ relationship with their father. It was not supported;
·Given the mother had and continued to provide the majority of care, a continuance of the current arrangement was favoured and the father’s proposal was not supported;
·The parties utilise a parenting app to reduce conflict between them.
Ms D considered that the current split time regime – with the children spending most weekends with their father and most of the school week with their mother was an arrangement which the children had experienced since they were very young and each had adapted to it and ostensibly thrived. She did not favour any large scale change to it in the short to medium term, notwithstanding its logistical challenges; the father’s opposition to it; and the parties’ highly conflictual relationship.
Ms D did not rule out the ultimate utilisation of a week about regime but did not consider that it was currently appropriate but might be from the start of the 2023 school year, if incrementally introduced from this stage onwards. She wrote as follows:
However, in considering the mother’s proposal for alternate weekends and an intervening overnight, this would increase handovers for the children and also reduce their time with the father, with the benefit of her proposal being that it afforded the mother the opportunity for free time with the children. Given the children’s disclosures during interview and observations of the father’s interaction, the Consultant did not believe it was warranted to reduce his time with the children, with the presence of positive relationship a protective factor in high-conflict families.
The Consultant therefore recommended that the current time continue in the short term. Whilst the reduced free time available to the mother was noted, it was suggested that she be afforded extra time in the school holidays (the father spend time with the children the last day of school Friday until the following Friday, and with the mother Friday until the start of school).
It was strongly recommended that the parties cease email communication and rather adopt the use of a Parenting App, which has the in-built function of ensuring positive tone to messages as well as providing limits to the lengths of messages. It was hoped that, once out of Court and the stress of their recent separation and the impact of the dispute before the Court dissipates, the parties for the next couple of years can practice more constructive, respectful and mutual communication. Subsequently, from the start of the school year 2023 the parties adopt a block of time spending (with the father alternate Wednesdays to Mondays), with this increasing over time until week about was reached during school terms.
Lastly, it was suggested that the mother be able to change school and childcare enrolment to a location closer to her. Given the children spend the majority of time with her during the school week, reducing the burden of travel on her seems reasonable. Once decisions about high schools need to be made (by which time the children will be living week about), the parties can consider choosing a school equidistant between them or located in the city, which will provide easier public transport options for the children travelling to both parties’ houses.[13]
[13] Ibid at [73] - [76].
Given the current tender years of the children, it is apparent to me that the father and mother will be involved with one another, as parents, for a very long time indeed. In these circumstances, I am acutely aware of the potential for the decision, which I must make, doing further damage to the parties’ co-parenting relationship.
In the emotionally draining circumstances following their separation, each party made a unilateral decision, with ramifications for the children, which continued to this time and which stoke the current acrimonious dispute between them.
At this stage, it is useful to outline what are the duties of parents, who share parental responsibility for their children. It being the position of both the father and the mother that they should be conferred with equal shared parental responsibility for X and Y.
An order which provides for shared parental responsibility requires that the parties to it consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned.[14]
[14] Family Law Act 1975 (Cth) s 65DAC.
Major long-term issues is a concept defined in section 4 of the Family Law Act and includes issues to do with the child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
From the father’s perspective, it is extremely difficult for him to get to Suburb K, given his place of residence, which he does not wish to leave and his place of employment. Given the expense of city parking, which from his perspective is prohibitive, it is his current practice to drive to the Suburb M bus interchange and then catch public transport into the city.
The bus is quick and cheap so far as getting him from the interchange into the city to take up his work duties. However, to use the bus to get to Suburb K to collect the children and then utilise it to get them to his car at the interchange would be arduous and time consuming and ultimately impossible to implement on a permanent basis. As such, the mother’s proposal must impact on the nature and quality of his relationship with the children.
In this context, he points to his long-standing employment with Employer O and the difficulty of changing it. In addition, he is committed to living in Suburb H because of his ownership of his home there. On the other hand, the mother is in rented accommodation and has access to portable employment.
It is Mr Watling’s position that it will be easy for him to drive the children from his home to N School, then drive to the Suburb M interchange and do the same in reverse, at the end of his working day. He believes the process would take a maximum of about 40 minutes.
On the other hand, for him to get to Suburb K, which would involve him having to either drive or go back by bus to Suburb M and collect his car, would take a much greater period of time and would be more expensive and inconvenient for him and the children. Necessarily, it is also his case that such an arrangement has more potential to go awry. He asserts that it would take him a minimum of 70 minutes to get to Suburb K.
Underpinning his position, is his assertion that the mother’s work is far more flexible than is his and she is, to a large extent, constantly driving, with her work. In these circumstances, he believes that Ms Watling is not gravely inconvenienced by the prospect of having to drive to N School and, in any event, she has demonstrated over the past two years that she can make it work. X and Y have been successfully delivered to Suburb M since the start of 2020. As such, they are well settled in the current arrangement.
Needless to say, Ms Watling does not agree. It is her position that the travel, for the children, of attending N School, is extensive and wearisome. In her evidence, she deposed that she has arranged for the children to attend a variety of extra-curricular activities, including ballet, hip hop and swimming but she asserts that the children frequently tell her they feel too tired to attend these activities. She also believes that it is not fair on her, given her position that she currently is the children’s main provider of care and should remain so for the next few years of their childhood.
In these circumstances, it is her position that as it is axiomatic that she is the children’s main provider of care and, as such, issues germane to her convenience should be seminal in determining the issue of which school the children should attend. Underpinning her case is her implied submission that the parties’ current parenting relationship will not sustain an equal time regime for the reasons identified by Ms D and the current situation is not likely to change at final hearing, whenever that is ultimately scheduled to take place.
Hence, Ms Watling places particular emphasis on Ms D’s recommendation that the best interests of the children dictate that they should attend at a school convenient to the home and place of employment of their primary carer. As previously, indicated, in this regard, her preference is for B School, Suburb C.
I have not been provided with a great deal of evidence as to whether the standard of education or level of facilities offered by the two schools is radically different. The father’s position is that N School is superior, particularly that it offers more after school activities such as netball, football, soccer, tennis, basketball, volleyball, cricket, dance, art classes and robotics, whilst B School offers only weekend sports and out of hours school care.
In addition, N School offers a program which enables parents to volunteer to take part in providing classroom support for children. It is his evidence that he has taken part in this program so far as X is concerned and will be available to assist Y in transitioning to school. He will not be able to provide such support, in future, if the children attend B School.
It is the mother’s case that B School has smaller class sizes than N School and she finds it to be a friendly and child focussed school. It is also convenient for ballet classes which X has been attending in nearby Suburb T. It is her case that although N School may be able to offer more extra-curricular activities on campus, the children will still be able to enjoy similar activities if they attend B School in facilities available in nearby suburbs.
The father deposes that the annual fees for two children at N School will be just over $12,000.00 per annum; as opposed to $5,487.00 at B School. Both schools require school uniforms. X already has a uniform for N School. He does not believe that he will be able to take part in school life at B School because of the mother’s antipathy for him. In this context, he opposes the making of any injunction restraining him coming to the school other than for the purpose of collecting or dropping off the children.
He concedes that the mother must drive 16.7 kilometres to take to N School, which he asserts takes between 25 and 35 minutes, depending on traffic. For him to get to B School, a slightly longer distance of 17.3 kilometres, he estimates takes between 25 and 65 minutes with the longer estimate more probable because of peak hour traffic.
In contrast, it would take a minute for the mother to get to B School from her home; and the father 5 minutes to get from his home to N School. The obvious convenience of their preferred school to each of the parents concerned is readily apparent. E School would take each of them around about the same amount of time to reach – around a quarter of an hour according to Mr Watling.
The mother fears that once both children are committed to attending N School there is a risk she will incur a liability for fees which will be a significant burden on her financially. The father has indicated a willingness to pay both children’s school fees. Such an undertaking is only enforceable if it is formalised in a binding child support agreement ratified by the Child Support Agency.
It is also open to one or another of the parties to apply for an administrative departure from the current assessment on the basis that the costs of maintaining the children are significantly affected by manner in which they are being educated given the expectations of their parents. In order for a departure to be ratified it is necessary for special circumstances to be demonstrated and it would be both just and equitable and otherwise proper for there to be a departure.
If a departure is granted, it may very well result in the father paying a lesser sum to the mother to provide for the children’s day to day financial needs. As the parties will be aware, child support is calculated formulaically by reference to each parent’s taxable income and the extent of care provided by each of them to their children. Accordingly, if the Agency does factor in private school fees, notwithstanding the mother’s objection to N School, it may well mean that she is placed under a greater strain financially particularly if she is providing the majority of the children’s physical care.
Such an outcome must add to the friction in the parties’ already highly conflicted relationship. For obvious reasons, the mother will be highly resentful if she must do a large amount of travelling, with the expense involved in that; and be financially disadvantaged vis-à-vis child support; so that the children can attend a school which is convenient to the father and which she believes was unilaterally foisted upon her, particularly whilst she continues to parent the children on most school days.
Whether there will be such a departure application is unknown to me. Obviously, it is not beyond the grounds of possibility that the financial circumstances of each of the parties will change radically over the next six or so years of the children’s primary education. In these circumstances, it would be naïve to consider that the children attending a relatively expensive private school does not have significant financial implications for them both.
This is the major aspect of the mother’s case. She characterises the father as domineering and focussed on getting what he wants. As such, he cannot be regarded as child focussed in his approach to parenting. She asserts that there are and will remain significant problems in the parties’ co-parenting relationship and this militates against an equal time regime, along with the obvious deficits in their communication and problem solving skills.
Accordingly, although she is open to the children spending more time with their father when they are older and in order to more fairly allocate weekend time, she contends that this should not occur for some time and these considerations militate in favour of the court adopting Ms D’s recommendations regarding schooling at this interim stage.
THE LEGAL PRINCIPLES APPLICABLE
Part VII of the Family Law Act 1975 deals with orders relating to children. Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration.[15] The same principles apply at both the final and interim hearing stage.
[15] Ibid s 60CA.
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC.
Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a) & (b) namely:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as twin pillars, the importance of which depends on the circumstances of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations to give greater weight to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[16]
[16] Ibid s 60CC(2A).
Thankfully, although the mother has raised issues regarding what she characterises as the father’s coercive and controlling behaviour towards her before and after separation and the father has made complaints about the behaviour of a person associated with the mother, who helped her to move out of the former family home, this is not a case focussed on issues of family violence.
In these circumstances, the major focus in this case is one how X and Y may derive the benefits from having a meaningful level of relationship with each of their parents. By necessary implication, this is major thrust of Mr Watling’s case. He aspires to an equal time regime so that the children can interact with him at what he would characterise as the optimal level, given the separation of their parents.
The aspects of a child’s life, in which a parent can be meaningfully involved, are, for obvious reasons, potentially multifarious. They include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting – as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, and collection and delivery to school and sports training – essentially spending time with parents in a more mundane set of situations.
In this way, the child concerned is likely to have a more balanced and so richer relationship with each of his or her parents. It is these types of interactions, which add significance and value to parent/child relationships and so add meaning to them. At present, it would appear to be Mr Watling’s view that there is an artificial dichotomy in the children’s lives at present with them spending weekends with him and weekday with their mother.
Ms Watling does not necessarily disagree. She herself would like some more weekend time with children to extend her level of relationship with X and Y. These are likely to be issues for the further final hearing but clearly influence the current issue regarding the appropriate school for the children in a greater tactical sense.
The question of beneficial relationships is not to be considered in a retrospective sense. Rather, the Court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced. I accept that to be meaningful, parental relationships require both sufficient temporal quantity and quality of shared time to sustain them.
A relationship does not necessarily become better, if a parent spends more time with a child but, for obvious reasons, a parent must spend sufficient time with the child concerned for the relationship between the two to become and remain meaningful. Otherwise, there is a risk of a parental relationship becoming token in nature.
In Mazorski v Albright,[17] Brown J indicated that a meaningful parental relationship is one which is important, significant and valuable to the child concerned. However, as the Full Court has also noted:
[H]aving a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.[18]
[17] Mazorski v Albright (2007) 37 Fam LR 518 at 526 [26] (Brown J).
[18] Jurchenko & Foster (2014) 51 Fam LR 588, 618 [123] (Bryant CJ, Thackray and Duncanson JJ).
These primary considerations are stressed through the provisions of section 60B(1) & (2) of the Act, which contain a list of aims and principles, which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes.
The list of objects or aims of the legislation is set out in s.60B(1). They are as follows:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles, which underpin these objects, are set out in s.60B(2) and are as follows:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.
In this particular case, sub-paragraphs (b), (d), (f), & (i) of section 60CC(3) are likely to have some relevant. These subparagraphs deal with the following issues:
·The nature of the child’s relationship with their parents and significant other person;
·Likely effects of any change in the children’s circumstances;
·The capacity of the parties to provide for the emotional and intellectual needs of the children;
·The attitudes to the responsibilities of being a parent demonstrated by the parties concerned;
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[19]
[19] B v B: Family Law Reform Act 1995 (1997) FLC 92-755.
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[20] As such, the various factors, in section 60CC, are inclusive but not exclusive of one another.[21]
[20] Ibid at 84,220.
[21] Russell & Russell & Anor [2009] FamCA 28 at [141] (per Ryan J).
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
General, as they are, particularly in their application to a highly focussed issue, such as which school a child should attend, these are the considerations applicable to the resolution of the current matter.
Given the importance, which the applicable legislation places on the co-involvement of parents in their child’s life and development there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her.[22]
[22] Family Law Act 1975 (Cth) s 61DA.
The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence.[23]
[23] Ibid s 61DA(2).
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned.[24]
[24] Ibid s 61DA(4).
The Family Law Act emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions – so long as this involvement is commensurate with protecting the children concerned from harm.
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act 1975 in section 65DAA(3). It means time that allows a child to spend time with a parent on both weekends and holidays, and days during the working or school week. More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance or benefit the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings. The question of beneficial relationships is not to be considered in a retrospective sense. Rather, the court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from s.65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly, courts such as this are directed to consider the reality of the situation which confronts parents and children, not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[25]
[25] MRR v GR (2010) 240 CLR 461 at [13] and [15].
The court is required to consider the legislature’s intent that the court should, commensurate with the need to protect a child from harm, ensure any orders that it makes result in both the parents of the child concerned being as involved as fully as possible in their child’s life and care, and the child concerned gaining the benefits of this involvement.[26]
[26] Goode & Goode (2006) FLC 93-286 at 80,901.
The application of these principles throws up a dilemma for the court at this interim stage. The central issue, for the court, at the final hearing stage, will be what should follow from the application of the presumption. On the one hand, Mr Watling wishes there to be an equal time regime, whist the mother wishes the maintenance of the current status quo and no consideration be given to extended the father’s time with the children until the commencement of the 2023 school year.
Accordingly, issues regarding the overall convenience or otherwise of one or other of the schools to the parties concerned can only be really be determined once the final care arrangements for the children will be known.
Clearly, one of the more important considerations likely to influence which is the preferable school for X and Y is the convenience of that school for the parent who will have the greater responsibility for delivering the children to and from it. It is also likely to be necessary, when considering the best interests of the children concerned, how long they will spend each day travelling to and from school.
If the parties had remained living with one another and had not separated, no doubt considerations of this type would have influenced their mutual decision as to the appropriate school. In such circumstances, N School has obvious advantages. However, the parties separated and issues relating to convenience shifted markedly.
In Eden & Eden-Proust[27] Thackray J recognised that the legitimate interests of a parent in securing an arrangement that was convenient in respect of the place of schooling of a child and which was also financially expedient was an appropriate matter for the court to take into account in deciding school issues. He said as follows:
Decisions made by parents in ‘intact’ families about the education of their children commonly take into account the convenience of the parents, especially in working out transport arrangements. Financial concerns are also routinely taken into account. Consideration of these factors should not be seen as affording primacy to them over the interests of the children, since children’s interests cannot be viewed in isolation from the convenience and financial stability of their parents.
[27] Eden & Eden-Proust [2011] FamCAFC 138 at [61] – [62].
Clearly, B School is very inconvenient for the father; whilst N School is very inconvenient for the mother. In my view, this balance of convenience must be significantly influenced by whom of the parents concerned in providing more of the physical or nuts and bolt day to day care of the children.
CONCLUSIONS
The case is finely balanced and provides no obvious outcome. Regardless, it is clear to me that X and Y are much loved and well cared for children, who will benefit from maintaining a meaningful level of relationship with each of their parents. Clearly, both X and Y know their father and mother well given that the children see their parents regularly and interact with one another regularly.
This will continue to be the case irrespective of which school the children will attend. The distance between Suburb K and Suburb H is significant but it is not so great as to provide a barrier to the children seeing each of their parents regularly. In addition, in my view, the commute must be regarded as being burdensome but it must be placed in its proper perspective.
Many parents must balance the demands of paid employment with those arising from the care of their children. There is nothing easy in this process, particularly if the parents concerned live in a large urban setting. The difficulties are often compounded when parents separate and elect, as they are entitled to do, to follow different paths and pursue other opportunities than those which they would have pursued together if their spousal relationship had remained intact.
Long commutes are a common incident of parental life, for both separated and non-separated parents in the conurbations surrounding Sydney and Melbourne. Country children also frequently travel long distances to get to school. The individuals concerned must learn to cut their cloth accordingly. Inevitably, this process becomes more challenging when families become separated and the imperatives and needs of two distinct households must be balanced. Necessarily, individual freedoms become curtailed.
As Gummow and Cullinan JJ remarked in U v U:
The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.[28]
[28] U v U (2002) FLC 93,112 at [92].
One of the functions of the Family Law Act is to enable separated parents to forge different life patterns following the end of their relationship, in both a financial and parental sense, whilst being focussed on just and child focussed outcomes. However, the fact remains that parental separation is frequently deleterious to the children and burdensome to their parents in multifarious and unforeseen ways.
This is what has happened in the current case. Ms Watling has chosen to live in the suburb of her preference in suburban Adelaide to be close to her family. This cannot be characterised as an extraordinary or capricious behaviour on her part. It is an understandable reaction to the emotional upset inevitably coinciding with the end of a long relationship.
The mother is not obliged to live in close proximity to the father to enable him to have the best level of relationship with the children concerned. Both are entitled to pursue the life of their idiosyncratic preference. However, they remain linked together as parents with the obligations and restrictions which this entitled.
In the context of their separation, neither is entitled to dictate to the other what the other is to do or indeed determine which school their children should attend without reference to the other. Rather, what they are required to do is consult and confer and if unable to resolve the issue, it falls to the court to determine what is considers is the best outcome for the children concerned.
This case does not provide a best outcome for the children. Rather, given it is a zero sum game, one parent will feel he or she is the winner and the other will feel he or she is the loser. Such an outcome will not assist the parties to improve their already fraught parenting relationship and the remaining acrimony between them must reverberate for the children in future.
However, although the case does not provide any obvious perfect outcome, neither does it provide any obvious disastrous outcome for X and Y. Whether they attend N School or B School, they will remain loved and well cared for children. They will have a sense that their parents are interested and concerned in every aspect of their lives. Given the modest distance between Suburb K and Suburb H, they will be able to see their mum and dad regularly.
More significantly, it cannot be said that one school over the other will produce a standard of education appreciably better than the other. The children are likely to achieve their required educational outcomes and the degree of socialisation needed to be able to make friends with their peers, regardless of which school they attend. In these circumstances, the case must be determined, in my view, primarily on the basis of the temporal basis on which the children are likely to be cared for in the next stage of their development.
At this stage, having heard evidence from both parents and from Ms D, I have grave reservations about the workability and practicality of a week about care regime, given the current tender ages of X and Y. The parties have no facility to implement such a regime seamlessly given they cannot talk. Problems will inevitably arise – an arrangement made by one parent must be facilitated by the other; an item required for school will be left behind; – it is hard to see that the parties in this case will be able to solve these types of problems easily.
Ms D does not rule out changing the current care pattern but does not favour it now. In the relatively significant period, which has elapsed since the parties separated, it is clear that the mother has provided more of the children’s care during the school week. In my view, this situation is more than likely to continue for the space of the next few years. In these circumstances, I agree with Ms D that issues regarding Ms Watling’s convenience are instrumental in determining the choice of schools.
I acknowledge that it will not be optimal for X to have to change schools. It is highly regrettable that the decision has to be made at an extremely late stage. However, Ms D has indicated that she is an emotionally resilient child who will be able to cope with the change involved.
It also highly regrettable that the parties themselves were unable to reach an outcome which was mutually acceptable to them both. This case has come about because each made significant decisions in the aftermath of their emotionally tumultuous separation – the father to confirm X’s enrolment at N School; the mother to move to Suburb K.
In my view, although N School was acceptable to both, whilst their relationship remained intact, that was obviously not going to be the case once Ms Watling had moved to Suburb K. If the father considered this to be the case, it was naïve for him to have done so. I do not think he is naïve. In these circumstances, there was an element of unilaterality in the decision to impose N School on the mother.
This decision has the potential to have financial implications not only for Mr Watling but also for Ms Watling, particularly if the Child Support Agency is engaged. I do not dismiss the mother’s concerns that she is not able to commit long term to the children attending at N School, no matter how excellent is the standard of education which it offers.
I see much that is compelling in the father’s case. It is incontrovertible that the mother has been able to cope with getting not only X to N School but also Y to her ELC nearby. I also acknowledge the complications arising from the fact that his place of work is in the Adelaide CBD and the expense of car parking is prohibitive.
However the fact remain that under the current regime he will be required to collect the children from school on only Mondays and Fridays. Just as the mother accommodated the logistics of N School, it does not seem inconceivable that he will be able to surmount the inevitable inconvenience of B School on the days of the week he is currently scheduled to collect and return the children.
Regrettably, this case is not analogous to a Rubik’s Cube, which I can manipulate to produce an outcome where inconvenience and preference can be balanced to achieve an outcome which is satisfactory (or equally unsatisfactory) to both parties. E School would have achieved such an outcome.
However, the parties declined it and I do not consider that it can be said to be an outcome which is in the children’s best interests as it would result in them attending a school at some distance from each of the homes in which they will be spending significant amounts of time. On balance, it would seem preferable that the children be able to make friends with children who live in reasonable proximity to the school which they attend.
For all these reasons, in a finely balanced case, I have come to the conclusion that the mother’s position is to be preferred. I will make an order authorising her to enrol the children at B School for the start of the school year in 2022.
Given, Mr Watling’s obvious interest in all aspects of the children’s care, including their education, I do not consider that it would be in the children’s best interests to make the injunction which the mother has sought in her interim orders sought.
A further difficult aspect of the case is what should happen next to it in procedural terms. I do not see any merit for these issues to be re-canvassed in a few weeks’ time, particularly given the parties’ indication to Judicial Registrar Lovell-Jones that they wished to explore resolving the issues between them following the determination of the schooling issues.
In addition, as previously indicated, to my mind issues relating to the funding of such a final hearing have been engaged. I will direct that, if one or other or both of them are legally aided, these reasons for judgment be provided forthwith to the Director of the Legal Services Commission of South Australia.
In these circumstances, I will vacate the final hearing fixed for 7 February 2022 and list the case for directions on 9 February 2021 to determine what form of dispute resolution process should be engaged and when it should occur.
I do not consider that the presumption of equal shared parental responsibility has been rebutted in this case. It should be applied. However, in my view, it would be neither in the children’s best interests nor reasonably practicable for there to be either an equal time or a substantial and significant time regime inaugurated at the present juncture.
Rather, I am satisfied that the current regime on which the parties agreed in late December 2020 and which ratified their earlier mediated agreement is calculated to be in X and Y’s best interests. In my view, it maintains a meaningful level of relationship between the children and their father. Its chief drawback being the lack of weekend time accorded to Ms Watling and the lack of weekday time to Mr Watling.
In this context, I agree with Ms D that it is preferable that the changes necessary to make these accommodations occur when the children are older and ideally through a process of respect negotiation and compromise between the parents concerned.
I have not found this an easy judgment to write. To my mind, the case exemplifies all the problems arising from applying adversarial and legally based processes to the resolution of disputes concerning the care of children. The application of such process is axiomatically not in the best interests of children given its propensity to amplify rather than reduce the conflict between parents.
In addition, such court based processes lack the flexibility necessary to give parties the considered decisions required at the ideal time. Necessarily, they are slow and cumbersome and frequently ruinously expensive. However, the court, notwithstanding these deficits, once charged must make a decision and so resolve disputes between parents, who are also citizen’s entitled to its adjudication.
On balance, although I concede the outcome I propose is far from a perfect one, I consider it the best outcome for X and Y in the difficult circumstances which prevail.
For all those reasons the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding two hundred and two (202) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Dated: 14 January 2022
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