Whitton and Whitton & Anor (No 2) - [2010] FamCA 1119

FAMILY COURT OF AUSTRALIA

WHITTON & WHITTON AND ANOR (NO. 2)

[2010] FamCA 1119

FAMILY LAW – CHILDREN – Which school the children should attend – Legislature does not intend considerations under Family Law Act 1975 (Cth) ss 60B and 60CC relating to parents to extend to parties who are not parents of the subject children – Family Law Act 1975 (Cth) does not import any presumption in favour of parents over non-parents in determining proper parenting orders – Factors under Family Law Act 1975 (Cth) s 60CC concerning the paternal grandmother may be considered under s 60CC(m) – Children’s risk of exposure to neglect by the mother can be monitored by ensuring the children attend the same school – Mother wants freedom to enrol children at a school in the geographical area she decides to live in – Mother’s freedom of movement is not the most influential consideration – Children’s best interests is the paramount consideration – Court is vested with the power to directly restrain parties – Power will be exercised sparingly – Other factors considered – Finding that children will attend the same school as their siblings

FAMILY LAW – CHILDREN – Parental responsibility – Consent orders made for equal shared parental responsibility

FAMILY LAW – CHILDREN – With whom the children will live and spend time – Consent orders do not expose the mother to an unacceptable risk of family violence

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 60CG(1)(b), 64B, 65AA, 65D, 69ZU

Aldridge & Keaton (2009) FLC 93-421
Dennett & Norman [2007] FamCA 57
Potts & Bims & Ors [2007] FamCA 394
Sampson & Hartnett (No. 10) (2007) FLC 93-350

APPLICANT:

Mrs Whitton Snr

1st RESPONDENT:

Ms Whitton

2nd RESPONDENT:

Mr Whitton

INDEPENDENT CHILDREN’S LAWYER:

Mr Rugendyke, Catherine Henry Partners

FILE NUMBER:

NCC

1890

2009

DATE DELIVERED:

9 December 2010

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

6 & 7 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sundstrom

SOLICITOR FOR THE APPLICANT:

Denise Clark, Solicitor & Advocate

COUNSEL FOR THE 1ST RESPONDENT:

Mr Davies

SOLICITOR FOR THE 1ST RESPONDENT:

Boyd Olsen Lawyers

COUNSEL FOR THE 2ND RESPONDENT:

Not Applicable

SOLICITOR FOR THE 2ND RESPONDENT:

Mr Predny, Fowler Predny Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Rugendyke, Catherine Henry Partners

Orders

IT IS ORDERED THAT

All former parenting orders concerning the following children are discharged:
(a)E and R, born … March 1997;
(b)       H, born … January 2000;
(c)N and T, born … February 2002;
(d)       A, born … March 2006; and
(e)       Z, born … July 2008.

BY CONSENT, IT IS FURTHER ORDERED THAT

With the consent of the parties, it is ordered in accordance with the document entitled “Consent Orders” signed by the parties and/or their legal representatives and the Independent Children’s Lawyer, dated 6 December 2010, which is marked Exhibit C and placed with the Court file:
2.1The children, E born … March 1997 (“E”) and R born … March 1997 (“R”), H born … January 2000 (“H”) and N born … February 2002 (“N”) shall live with the paternal grandmother.
2.2The children T born … February 2002 (“T”), A born … March 2006 (“A”) and Z born … July 2008 (“Z”) shall live with the mother.
2.3The paternal grandmother, the mother and the father shall share equally parental responsibility for all seven children.
2.4The mother will spend time with H and N:-
(a)from the conclusion of school on Friday until 4:00pm on Sunday each alternate weekend commencing 17 December 2010;
(b)for one half of all term school holidays as agreed and failing agreement for the first half in each year ending with an odd number and the second half in each year ending in an even number;
(c)For one half of the first four weeks of the Christmas school holidays as agreed and failing agreement for the first half in each year ending with an odd number and the second half in each year ending in an even number;
(d)At such other times as agreed between the parties from time to time.
2.5The mother will spend time with E and R by agreement with the paternal grandmother and in accordance with the wishes of E and R.
2.6The paternal grandmother will spend time with T, A and Z:-
(a)from the conclusion of school on Friday until 4:00pm on Sunday each intervening weekend, commencing 10 December 2010;
(b)for one half of all term school holidays as agreed and failing agreement for the second half in each year ending with an odd number and the first half in each year ending in an even number;
(c)for one half of the first four weeks of the Christmas school holidays as agreed and failing agreement for the second half in each year ending with an odd number and the first half in each year ending in an even number.
(d)And such other times as agreed between the parties from time to time.
2.7The operation of orders 2.4(a) and 2.6(a) will be suspended during term school holiday periods and during the first four weeks of Christmas school holiday periods and:-
(a)the operation of order 2.4(a) will resume on the first weekend after the paternal grandmother has concluded spending holiday time with the children T, A and Z pursuant to order 2.6(b) or 2.6(c) as the case may be;
(b)the operation of order 2.6(a) will resume on the first weekend after the mother has concluded spending holiday time with the children H and N pursuant to order 2.4(b) or 2.4(c) as the case may be.
2.8The paternal grandmother will spend time with A and Z from 10:00am until 3:00pm each Tuesday until such time as A commences school and thereafter shall spend such time with Z.
2.9On each occasion that T, A and Z or any of them spend time with the paternal grandmother, they shall spend time with the father by agreement between the paternal grandmother and the father.
2.10The paternal grandmother will facilitate the children E, R, H and N spending time with the father as agreed with the father.
2.11No party who is spending time with any of the children pursuant to these orders shall use any illegal drug or any prescribed drug other than in accordance with the prescription during the time that they are spending with the children or for twelve hours prior to the commencement of such time.
2.12No party to these proceedings shall denigrate any other party to these proceedings in the presence or hearing of the children or permit any other person to do so.
2.13Both the paternal grandmother and the mother shall within seven (7) days of the date of these orders authorise each school that any of the children living with each of them to provide to each other party copies of school reports, newsletters and other correspondence normally sent to the parents of children enrolled in such school, provided that if there is any expense associated with the provision of that material that the party who wishes to receive the material shall be responsible for the payment of that expense.
2.14In the event that any of the subject children requires any treatment for any medical or health condition, then the party that arranges such treatment shall as soon as practicable after the making of any relevant appointment or the provision of any such treatment, notify each other party of the details of such appointment or the provision of such treatment and shall authorise the treating medical practitioner, allied health professional, hospital or other treating agency to provide to each other party such information as he or she may request in relation to the medical or health condition or treatment.

IT IS FURTHER ORDERED THAT

Unless otherwise agreed by the parties in writing, each of the parties shall take all reasonable steps to ensure that:
(a)The children N and T:
i)Attend the same school as one another; and
ii)Attend the same primary and secondary schools as H, at least until H completes his schooling
(b)The child A attends the same primary and secondary schools as N and T, at least until both N and T have completed their schooling; and
(c)The child Z attends the same infants, primary, and secondary schools as A, at least until A has completed her schooling.
For the purposes of Order 3 hereof, unless otherwise agreed by the parties in writing:
(a)The infants and primary school to be attended by the children shall be O Public School, O, NSW.
(b)The secondary school to be attended by the children shall be O High School, O, NSW.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Costs are reserved for 28 days.
Any and all outstanding applications are dismissed.

NOTATION

A.Pursuant to Rule 10.15A of the Family Law Rules, it is noted that allegations of family violence have been made in the proceedings and that those allegations are addressed by the existence of a family violence order that will not expire until 29 July 2011.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1890 of 2009

MRS WHITTON SNR

Applicant

And

MS WHITTON

First Respondent

And

MR WHITTON

Second Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

These proceedings concern the parenting orders that should be made for the seven children of the respondents.
For several reasons, the respondents have had difficulty managing their parental obligations in respect of the children. The applicant paternal grandmother intervened to render the assistance that the children needed.
The proceedings were commenced by the paternal grandmother in July 2009 to formalise, by Court orders, the parenting arrangements to be implemented for the children.
The dispute over parenting orders was quite broad, encompassing the allocation of parental responsibility for the children, where the children would live, and how the children would spend time with the parties.
Shortly before the trial commenced the parties commendably reached agreement about all issues, save for the school enrolments of the three children who were to remain living with the mother. The parties invited the Court to determine that single issue against the background of their agreement on all other issues. Consequently, this judgment deals only with the resolution of that single issue.
The parties agreed that they should each have equal shared parental responsibility for all of the children. Determining the school at which one or more of those children should be enrolled is a decision which ordinarily falls within the parties’ parental responsibility. The parties’ failure to agree on the issue therefore amounted to a request of the Court by them to determine an aspect of parental responsibility about which they cannot agree.

Proposal and primary evidence of paternal grandmother

The paternal grandmother proposed that the three children who live with the mother should attend the same school as their older or twin siblings.
In support of her proposal the paternal grandmother read paragraph 30 of the affidavit filed by her on 1 December 2010. She was not required for cross examination.

Proposal and primary evidence of the mother

The mother proposed that she should be free to enrol the three children who live with her at any school of her choosing, because she anticipates that at some indeterminate point in the future she will establish her own residence with those three children away from the home of the maternal grandmother, where she currently resides. Since she is unable to say where she will establish that residence, she desires the freedom to enrol the children at a school in the district where she ultimately decides to live.
The mother was prepared to submit to a restriction that she remain living with those children within a radius of 40 kilometres of the O Post Office. That represented a compromise on the radius of 80 kilometres proposed in her Response.[1]
[1] Further Amended Response filed 28 October 2010, Order 16
The mother did not adduce any affidavit or oral evidence in support of her proposal, but did tender two exhibits.[2]
[2] Exhibits M1 and M2

Proposal and primary evidence of the father

The father supported the proposal of the paternal grandmother, in support of which he relied upon:
a)Paragraphs 41 and 43 of the affidavit filed by him on 19 November 2010, and
b)Paragraphs 2-9, 18, and 21-35 of the affidavit of Ms M filed on 19 November 2010.
Neither the father nor Ms M was required for cross examination.

Proposal of the independent children’s lawyer

The Independent Children’s Lawyer joined with the paternal grandmother and father in proposing that the three children living with the mother should attend the same school as their older and twin siblings, who live with the paternal grandmother.
The Independent Children’s Lawyer relied upon the evidence found within the family reports compiled by the two Family Consultants assigned to the family, those being the reports of:
a)Ms C dated 10 September 2009, and
b)Ms D dated 13 April 2010, annexed to her affidavit sworn on 14 April 2010.
Although the contents of the family report authored by Ms C were not adduced as sworn evidence, the report was taken into account with the consent of all parties (s 69ZU).
The parties and the Independent Children’s Lawyer each cross examined Ms D, but Ms C was not required for cross examination.

Background facts

The respondents met in 1995.[3] They finally separated in July 2009, but there were several inconclusive separations before that.[4]
[3] Ms D family report, par 2
[4] Ms C family report, par 4
Seven children were born during the respondents’ relationship, being:
a)E and R, born as twins in March 1997,
b)H, born in January 2000,
c)N and T, born as twins in February 2002,
d)A, born in March 2006, and
e)Z, born in July 2008.
At the time of trial the eldest children were 13 years of age, and the youngest two years of age.
Final parenting orders were made by consent in July 2006 in respect of the six children then born to the respondents.[5] That occurred during one of the periods of separation between the respondents.
[5] Ms D family report, par 9
Despite the terms of the 2006 orders, the eldest three children have lived continuously with the paternal grandmother since October 2007,[6] and spent other periods of time before that in her care.[7]
[6] Ms C family report, par 7; Ms D family report, par 10
[7] Ms D family report, par 8
The three youngest children remained living with the mother after the eldest three children moved to live with the paternal grandmother.
The respondents then reconciled and conceived the seventh child, with that child being born in July 2008.
The current proceedings were commenced by the paternal grandmother filing an Initiating Application on 27 July 2009, contemporaneously with the final separation of the respondents.
Interim parenting orders were made by the Court shortly afterwards on 30 July 2009. Those orders did not change the living arrangements that then prevailed for the children. The eldest three children remained with the paternal grandmother and the youngest four children remained with the mother.
The matter was subsequently fixed for trial on 25 May 2010, but that trial was vacated following the parties’ agreement upon an interim parenting arrangement that was contemplated might transform into a permanent arrangement after a trial period of some six months. The interim orders were made on 12 May 2010.
The interim orders changed the children’s established residential regime in two respects – firstly, by providing that N move from the mother’s household to live with his elder brothers in the paternal grandmother’s household, and secondly, by providing that T and the two youngest children continue to reside with the mother on the proviso that the mother remain living with those three children in the home of the maternal grandmother.
The mother later breached those orders by moving to the south coast of NSW with T and the two youngest children in August 2010, without the maternal grandmother, and without notice to the other parties.
In response to an application filed by the Independent Children’s Lawyer, further interim orders were made on 27 September 2010 causing the mother to relocate back to the maternal grandmother’s home with T and the two youngest children so that the orders made earlier on 12 May 2010 could be regularly implemented.
On 21 October 2010 the mother’s interim application to relocate with T and the two youngest children was dismissed (see Whitton & Whitton [2010] FamCA 1025), and the matter was listed for trial on 6 December 2010.
The trial commenced on 6 December 2010, but was partly compromised in the manner already outlined. The parties tendered two sets of Consent Orders reflecting their agreement, with the second[8] superseding the first.[9]
[8] Exhibit C
[9] Exhibit B
The residual dispute about the children’s school enrolments was heard on 7 December 2010 and judgment was reserved.

Summary of parenting law

Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
An order dealing with the school at which a child should be enrolled is a parenting order, because it is an order that deals with the welfare or development of the child (s 64B(2)(i)).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

Children’s best interests

Where the provisions of ss 60B and 60CC of the Act refer specifically to “parents” in the context of objects, principles, and considerations relevant to the determination of a child’s best interests, the legislature does not intend those relevant factors to extend to parties or third parties who are not parents of the subject children (see Aldridge & Keaton (2009) FLC 93-421 at [44-48, 65, 74, 109-112, 119]; Potts & Bims & Ors [2007] FamCA 394 at [8-9]). The Act, however, does not import any presumption in favour of parents over non-parents in the determination of proper parenting orders (see Aldridge & Keaton at [59-61, 76-81, 83]; Dennett & Norman [2007] FamCA 57 at [53-60]).
Although some of the factors prescribed for consideration under s 60CC(3) of the Act refer only to parents, those factors insofar as they concern the paternal grandmother may still be considered under s 60CC(3)(m) of the Act, and carry the same weight under whichever provision they are discussed (see Aldridge & Keaton at [111-112, 119]). Consequently, I will deal with the parents and paternal grandmother simultaneously under the relevant criteria set out within s 60CC(3) of the Act.

Because of the narrowness of the issue left for the Court’s consideration, several of the s 60CC criteria do not bear upon the determination and are therefore ignored or addressed summarily.

Section 60CC(2) – Primary considerations

There is no contest that the children will benefit from continuing to enjoy meaningful relationships with both parents. The same observation may be made in respect of the children and the paternal grandmother. The orders agreed upon by the parties will ensure that occurs.
There is a long and unfortunate history of family violence involving the respondents, to which the children were often exposed.[10] So far as the evidence goes, the father last assaulted the mother in July 2009, which incident coincided with their final separation. Apart from being convicted for assaulting the mother, the father was placed on an apprehended violence order protecting the mother from him. That order was made on 30 July 2009 for a period of two years.[11] Whilst the mother is understandably apprehensive of the father, there is no evidence of any family violence since the incident in July 2009.
[10] Ms D family report, pars 3-6
[11] Exhibit M2
There is no evidence of any family violence between the mother and paternal grandmother. The parenting orders agreed between the parties cause four children to live with the paternal grandmother and three children with the mother. The orders require the mother and paternal grandmother to interact with one another to ensure that the children maintain associations with one another and the parties. The orders do not require any interaction between the respondents. The orders do not expose the mother to an unacceptable risk of family violence (s 60CG(1)(b)). The mother must agree with that conclusion, otherwise she would not have consented to the orders.
That being so, no evidence has been adduced to the effect that there is a need to protect any of the children from harm that might arise from being subjected or exposed to “abuse” or “family violence”, as those terms are defined in s 4(1) of the Act
However, there exists a need to protect the children from harm that might arise through their neglect by the respondents. There is a surfeit of evidence about the respondents’ past neglect of the children.[12] The respondents were drug-addled and attracted more than 50 reports to the NSW Department of Human Services regarding the children’s welfare, including concerns about the children’s educational neglect, physical neglect, inadequate nutrition, inadequate clothing, and inadequate supervision. The uncontested evidence is that the paternal grandmother stepped in to the children’s lives and provided them with a “much needed safe haven”.[13]
[12] Ms D family report, pars 4, 7, 8, 12, 13, 14, 15, and 121
[13] Ms D family report, par 16
The past neglect of the children by the father now wanes in significance because none of the children live with him, and the time spent by the children with him is subject to the superintendence of the paternal grandmother. The mother’s propensity to neglect the children remains a concern though because, under the agreement reached by the parties, although four of the children will now live safely with the paternal grandmother, three of the children will continue to live with the mother. Furthermore, the agreed orders contemplate the mother establishing her own residence away from the maternal grandmother, free of the former interim restriction requiring her to live with the maternal grandmother.
The evidence of the mother’s past neglect of the children demands a conclusion that she continues to present some risk of neglecting the children in the future. I accept the Family Consultant’s evidence that the mother has deficient parenting skills.[14] Given the age of the children who remain living with her, they will be exposed to harm if the mother is as neglectful of them as she has been in the past.
[14] Ms D family report, par 123
That was a principal concern of the Family Consultant, who considered that the risk is attenuated if the mother’s care of those three children continues to be monitored. The Family Consultant agreed that such monitoring may be achieved in several ways. Ensuring that the three children attend the same school as their elder and twin siblings was one such way. Another was by ensuring the continued involvement of both grandmothers in the lives of the children. The Family Consultant was gravely concerned by the prospect of the mother living independently from the maternal grandmother and the children living with the mother attending a school beyond the influence of the paternal and maternal grandmothers.

Section 60CC(3) – Additional considerations

None of the children express any view about the remaining issue of school enrolment.
The nature of the relationships between the children and their parents, paternal grandmother, and extended family members will not be affected by the determination about the issue of school enrolment. There is however an issue about how the children’s school enrolments might influence the relationships between the siblings.
There is no dispute about the children’s current school enrolments.[15] Presently, E and R attend O High School, where they are in Year 8. The other school-age children attend O Public School, where H is in Year 4 and N and T are in Year 3. A attends pre-school and will commence Kindergarten in 2011. The youngest child Z attends a child care centre and will not commence school for some years.
[15] Ms D family report, par 27
The paternal grandmother gave the following unchallenged evidence about the children, and the twins N and T in particular:[16]
“I say that the children all have a close and loving bond with each other. [N] and [T], who are twins, are particularly close. Whilst they do not always live in the same household, they are in the same class at school (often sitting together) and spend most of each day with one another. On weekends, [T] and [N] play together and visit the homes of each other’s friends together. They go to the same birthday parties”.
[16] Affidavit of the paternal grandmother, par 30
In a similar vein, the father gave unchallenged evidence to the following effect:[17]
“I believe it is important for all my children to spend time together as often as possible. Currently the twins, [T] and [N], attend the same school and are in the same class at [O] Primary School. [H] also attends [O Primary School] in Year 5 and it is my intention that when [A] commences school next year she will also be enrolled at [O School]. I would like [Z] to eventually be enrolled in the same school as his older siblings”.
[17] Affidavit of the father, par 43
Even the mother agrees that the twins, N and T, have a close relationship. She describes them as “soul mates”. The mother originally proposed that the twins lived together with her, and in that context the Family Consultant reports that the mother made the following comments:[18]
“She [the mother] said that she was very concerned that [T] was missing her twin [N] and that the two ‘soul mates’ should live together”.
[18] Ms D family report, par 49
When the Family Consultant spoke individually with the children, N expressed some equivocal comments about T,[19] and although T was similarly equivocal about N, she did speak a little more positively of him than he did of her.[20]
[19] Ms D family report, par 90
[20] Ms D family report, pars 96-97
When cross examined, the Family Consultant expressed the view that N and T were competitive with one another, but her evidence stopped well short of establishing any deterioration in their sibling relationship. Any suggestion to the contrary would be flatly contradictory with the common beliefs of the parties about the quality of the relationship between N and T.
The Family Consultant did not accept the mother’s contention in cross examination that N’s decision to live with the paternal grandmother and his elder brothers was a reflection of an adverse attitude to his relationship with his twin T. Rather, the Family Consultant regarded that decision by N as self-protective, which did not imply any deterioration in the relationship between N and T.
By continuing to attend the same school, the children’s bonds with one another will likely be enhanced.
The orders agreed upon by the parties manifest a willingness and ability of each of them to facilitate and encourage a close and continuing relationship between the children and the other parties.
The orders agreed upon by the parties reflect existing residential arrangements. The proposal of the mother that would enable her to remove T from the school she currently attends with her twin N and older sibling H would necessarily be unsettling for T, at least initially. While it is likely that she would eventually settle in any new school environment, that is not the test by which the case must be determined. The test is whether the proposal meets the children’s best interests, with such interests to be assessed in the short, mid, and long terms. Suffice it to say, T would suffer no unsettlement at all if she remains at her current school with her siblings.
There is no practical difficulty or expense in implementing the orders agreed between the parties or complying with the orders made by the Court concerning school enrolments. They are the current arrangements and the parties are coping.
Other than the issue of concern about the mother’s potential neglect of the children in her care, which has already been addressed, there is no aspect of the evidence relating to the maturity, sex, lifestyle or background of the parties that bears upon the residual issue about school enrolments.
Neither the children nor the parties identify as Indigenous Australian.
The paternal grandmother displays a proper attitude to the children and to the responsibilities of her assumed role of parenthood. The same cannot be said for the respondents. The evidence of the Family Consultant was that the mother favours T, as a consequence of which T regards herself as a friend and equal of the mother. It is clear that T has assumed a sense of responsibility for the mother, evidenced by her comments to the Family Consultant that she would “never leave Mum because it would make her too sad”.[21] The Family Consultant considered that T’s alignment with the mother was concerning because it appeared to have set T somewhat aside from her siblings. In the opinion of the Family Consultant, that does not bode well for T.[22]
[21] Ms D family report, par 96
[22] Ms D family report, par 130
If the mother was successful with her application, she would be at liberty to move away with T and enrol T at a school of her unilateral choosing. That process would only intensify the alignment between T and the mother and exacerbate any distance between T and her twin and older siblings. That consequence should be avoided.
The issue of family violence has already been addressed as a primary consideration. There is nothing to add. The existent family violence order will continue to protect the mother from the father until 29 July 2011.[23]
[23] Exhibit M2
The mother submitted that the evidence of past family violence was justification for her moving further away from the father, to lessen the prospect of her contact with him. She is undoubtedly correct. But that is not determinative of the issue about the children’s school enrolments. The mother’s exposure to family violence is but one consideration.
Although I readily accept the mother is apprehensive about the father, her apprehension is not so pervasive as to adversely affect the children. There is unchallenged evidence of the mother communicating freely with the father’s partner and voluntarily attending the father’s home to exchange the children.[24] The mother also proposed that she attend the home of the paternal grandmother to exchange the children,[25] which proposal was presumably made in full knowledge of the possibility of the father being at the paternal grandmother’s home. Although the respondents each proposed changeover orders in their respective Responses,[26] the parties did not include any order in their agreement[27] about the manner in which they would exchange the children. I presume that omission to be deliberate, in the knowledge that they can harmoniously and flexibly make those arrangements between themselves as an incident of their equal shared parental responsibility.
[24] Affidavit of Ms M, pars 21-35
[25] Further Amended Response filed 28 October 2010, Order 8
[26] Further Amended Response filed 28 October 2010, Orders 8-9
[27] Exhibit C
The orders made by the Court are least likely to lead to the institution of further proceedings, because they introduce certainty about the children’s school enrolments. The mother belatedly submitted that the Court should decline to make a decision on the issue of school enrolment and leave it to the parties’ exercise of parental responsibility when the issue ultimately arises upon the mother deciding to establish her own residence away from the maternal grandmother. I reject that argument because it will inevitably lead to the institution of further proceedings. If the parties cannot agree on the issue of school enrolments now, when they have managed to agree on all other parenting issues, they are hardly likely to be able to reach an agreement on the issue later.
The evidence of the Family Consultant was the preferred outcome is for the three children living with the mother to continue or begin attending the same school as their twin and elder siblings. The Family Consultant was mindful of the hardship the mother may confront in finding local accommodation, if the mother establishes a separate household from the maternal grandmother, because the mother has been blacklisted at a refuge and by the NSW Department of Housing.[28] However, in the knowledge of that prospective difficulty, the Family Consultant adhered to her view about the preferred outcome. The maternal grandmother has offered accommodation to the mother and the children who live with her for as long as it is needed.[29] While it is understandable that the mother may wish to establish her own household, there is no need for her to rush to do so. When that eventually occurs, the mother is free to live wherever she chooses, so long as it is sufficiently proximate to permit the children to spend time with parties on weekends and mid-week as the parties have agreed. The orders about common school enrolments make it necessary for the mother to also live in sufficient proximity to the schools for the children to attend daily. That consequence was known to the Family Consultant when she offered her opinions in cross examination.
[28] Ms D family report, par 13
[29] Ms D family report, pars 57-59
The paternal grandmother is now 75 years of age and is physically frail.[30] The youngest child now living with her is nearly nine years of age. The youngest child living with the mother is aged only two years. Having regard to the paternal grandmother’s frailty and the past parenting deficiencies of the respondents, I accept the evidence of the Family Consultant that the children will need to become more reliant upon one another for support as they mature, and so it is important to ensure the strength of their relationships. Attainment of that objective will be facilitated by ensuring that they attend school together.
[30] Ms D family report, par 30
Attendance of the children at the same school, local to the residence of the paternal grandmother, will also be advantageous to the children because it will enable the paternal grandmother to more easily discharge her equal shared parental responsibility for them in respect of their educational progress. Her frailty and inability to drive would impede her ability to stay in close personal contact with a school, by way of attendance at carer/teacher interviews, student functions, and the like, if the school attended by any of the children was in a geographically distant location.
The mother adduced evidence that the father was banned from attending the youngest children’s school in 2008, whilst the respondents were still cohabiting,[31] but the relevance of that evidence was not revealed. It was not addressed in submissions. It is not known whether the ban remains in place. If it does, presumably that means it is all the more important that the paternal grandmother be able to attend the school at which the children are enrolled.
[31] Exhibit M1
The mother was unable to point to any evidence to support a submission that the best interests of the three children living with the mother would be served by permitting the mother to enrol them to attend different schools from those attended by their twin or elder siblings. Rather, the mother’s case was posited upon a submission that the circumstances were tantamount to a “relocation” case, and that the other parties’ insistence on retention of common school enrolments for the children represented a proposal that flagrantly contravened the principles established by the Full Court in Sampson v Hartnett (No.10) (2007) FLC 93-350.
The mother’s argument proceeded on the basis that, by ordering the children to attend the same schools, the mother was then coercively restrained from establishing a residence for herself at a place of her choosing.
By ordering that the children attend the same schools as one another, the corollary is that the mother’s freedom to choose the location of her new residence is circumscribed by the need for her to remain living in sufficient proximity of the schools to permit compliance with the orders. However, it must be remembered that the mother agreed to orders that involved the children being exchanged between herself and the paternal grandmother with such frequency that a reasonable degree of proximity was required between her own home and that of the paternal grandmother. The mother assessed the limit of that distance at 40 kilometres. The mother submits that an order requiring the children to attend the same schools on a daily basis will require an even closer proximity, considerably less than the 40 kilometres to which she was prepared to submit.
The flaw in the mother’s submission is that it proceeds from an implicit assumption that the mother’s freedom of movement is the overriding determinant, or at least the most influential consideration.
As was conceded by the mother in final submissions, the contentious issue of the children’s school enrolments is determined in the context of the children’s best interests being the paramount consideration. If their best interests warrant their enrolment and attendance at the same schools then that is the order that must be made, irrespective of the incidental curtailment of the mother’s freedom to live wherever she chooses. There is no direct embargo upon where the mother establishes her residence. She is only required to comply with the orders about where the children attend school and also the orders providing for the children to spend time between her household and that of the paternal grandmother.
Consistently with the principles established in Sampson v Hartnett (No.10) at [11-13], such orders only indirectly affect the mother’s freedom of movement and do not deprive the mother of choice about where she lives. Orders so limited in their impact on parents’ freedom of choice about the location, manner and degree of parental involvement are consistent with the law’s approach to family life. As the Full Court also observed at [31, 33, 46, 58], the Court should merely take care framing orders so as to impose no greater an impediment upon parties than that reasonably required to achieve the objects of the Act. While the Court is invested with power to directly restrain parties when necessary, the power will be exercised sparingly.
The Family Consultant agreed with the mother’s proposition in cross examination that the children’s interests would be better served by them attending a school in the area where they lived. Given the evidence leads to a conclusion that the children living with the mother should be enrolled at and attend the same schools as their twin and elder siblings, hopefully when the mother eventually decides to establish her own residence she will harken to the Family Consultant’s evidence and choose to live in an area close to their existing schools.

Conclusion

The evidence satisfies me that it would be in the best interests of T to attend the same school as her twin and elder siblings, and that it would be in the best interests of A and Z to attend the same school as the next three eldest siblings.
The eldest twins now attend secondary school. Even though they may still be at secondary school by the time the youngest two children begin infants and/or primary school, they will have completed their education by the time the two youngest children begin secondary school. Consequently, the two eldest and the two youngest children will never be enrolled simultaneously at the same school in any event.
To achieve the desired outcome, Orders 3 and 4 are made in terms that require the four youngest children to follow the next eldest sibling through the same schools in a lock-step method.
The orders are made in terms that permit the parties to agree upon alternate arrangements in writing as an incident of their equal shared parental responsibility if unforeseen circumstances arise, such that they are mutually convinced that a change is needed.
Neither the Independent Children’s Lawyer nor the parties formulated or tendered any minute of the order they proposed to address the contested issue.
I decline to make an order in the general terms proposed by the paternal grandmother, father, and Independent Children’s Lawyer that obliges, in absolute terms, the parties to ensure the enrolment of the children at O Public School. An order styled in that way is simply too restrictive for the parties and the children and fails to take account of contingencies.
I decline to make an order in the nature proposed by the mother, imposing a radial restriction on the location of her residence when she decides to depart the maternal grandmother’s household, inferentially granting her unfettered freedom within the radius she proposes. There is no restriction imposed upon the mother at all, save that she must comply with the parenting orders.
Orders 1 and 2 are consensual.
Orders 5, 6, 7, and 8 are procedural.
I am satisfied that the orders meet the children’s best interests.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 9 December 2010

Associate:

Date: 9 December 2010

Amended Response filed 29 October 2010, Order 7 Notation