WRENN &MARKLE

[2014] FamCA 668

FAMILY COURT OF AUSTRALIA

WRENN &MARKLE [2014] FamCA 668

FAMILY LAW – CHILDREN – major long term issues – where the mother changed the children’s residence without permission of the father or the Court – where the mother seeks interim orders permitting her to enrol the children in new schools– where the father does not consent – where the children are settled in their current schools – orders made dismissing the mother’s application.

Family Law Act 1975 (Cth), Part VII, s60CC

APPLICANT: Ms Wrenn

RESPONDENT: Mr Markle

FILE NUMBER: SYC 4347 of 2014

DATE DELIVERED: 1 August 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 1 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Oatley

SOLICITOR FOR THE APPLICANT: Reid Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Crawford

SOLICITOR FOR THE RESPONDENT: Crawford Ryan Lawyers Pty Limited

Orders

IT IS ORDERED

1. That the applications contained in clauses 7 and 8 of the interim application of the mother filed 30 July 2014 are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wrenn & Markle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4347 of 2014

Ms Wrenn

Applicant

And

Mr Markle

Respondent

REASONS FOR JUDGMENT

1. Before the Court are interim proceedings between Ms Wrenn, to whom I will refer as “the mother” and Mr Markle, to whom I will refer to as “the father”. 

2. The children who are the subject of the applications are B, born in 2008 (“B”) and now aged six years, and C, born in 2010 (“C”) and now aged three years (“the children”). 

3. During the cohabitation of the parties, the family lived in Suburb D in a home which they jointly owned (“the former matrimonial home”). 

4. There is a dispute about the date when the parties separated. The father says the separation occurred in October 2013. The mother says that the father moved out of the shared home in August 2013. Nothing, for the present purposes, turns upon that dispute, but it is not disputed that from the time the father moved out of the family home, the mother has been the primary carer for the children. 

5. After separation, on the mother’s case, the parents agreed that C would attend preschool in Suburb D and he did so from the beginning of 2013.

6. In 2014, again by agreement between the parties, B started school at Suburb D Public School. 

7. From February 2014, it was agreed between the parents that the children would spend alternate weekends with their father from Friday afternoon until Monday morning. 

8. From March 2014, the children also spent each Wednesday afternoon with their father. 

9. In May 2014, the mother expressed concerns that the three-night weekend was too long for the children to be away from her and the father agreed that weekends should end on the Sunday evening.

10. On 31 July 2014 before me, the parties reached an agreement in relation to the appropriate interim arrangements for the children and orders have been made in accordance with that agreement, which provide for the children to spend time with their father each Wednesday evening and each alternate weekend from Friday afternoon until Sunday afternoon. 

11. When the parties separated, the mother resisted the sale of the former matrimonial home. The father insisted on the sale.

12. Emails and texts were sent between the parties. The mother, at paragraph 36 of her affidavit, refers to messages, including an email sent on 28 October 2013 where the father said to her, “Just sign the papers and sell the fucking house,” and a further email on 29 October 2013, “Sell the fucking house. Stop sending me diatribes. Sell the house.” 

13. The father refused to negotiate with the mother in relation to either the distribution of the proceeds of sale of the house or the arrangements for the children. 

14. At paragraph 38 of the mother’s affidavit, she sets out a communication from the father to her where he says to her, “My position remains that 50/50 split of the house and the kids is the only outcome. I will not begin to resolve things if you want anything outside that.”

15. In a further communication he said to her, “there is nothing to discuss until I get what is fair. I won’t accept anything other than 50/50 of the kids and money” and “if you are planning to screw me I’ll fight you all the way,” and a further, “I don’t see the point of a mediation. You’re the one with the problem and you need help.” 

16. On 17 April 2014, the mother’s counsellor wrote to the father inviting him to participate in discussions, but there was no reply to that request. 

17. Contracts for the sale of the former matrimonial home were exchanged on 22 May 2014. Settlement took place on 14 July 2014. 

18. On 4 June 2014, the mother sent an email to the father where she said:

    Now that the house is sold, I have found a rental property for me & the boys to move to. I am making a fresh start in [Suburb E] and have signed a lease on a place near the beach. As I will be living in a unit with 2 small boys it is important that we have easy access to a variety of good outdoor play options – we will have the beach, there is a sports field on the same street and a play-park in the next block. I have some good friends with young children in the area and the boys will be close to the [Fs] – their only extended family in Sydney.

    We will move in the July school holidays and [B] will therefore need to change schools for the start of term 3. The unit is a short walk from the local school, [Suburb G] Public which has a great reputation. I have spoken to the deputy there, who was lovely and they will arrange an orientation day for [B] towards the end of this term so that he can meet his new teacher and visit his classroom.

19. The email then included details of the website of Suburb G Primary School. The email continues:

    I have put [C] on the wait list of 2 local pre-schools that are in walking distance of the unit and the school. They will advise me of their availability nearer the time.

    And the email then referred the father to one of the websites for the preschools.

20. The mother does not suggest that she made any effort to secure suitable rental premises in, or near, Suburb D so that the agreed arrangements for the children would be able to continue without disruption. Neither does the mother suggest that suitable premises are not readily available in proximity to the public school at Suburb D and the preschool.

21. The mother did not, at any time prior to 4 June 2014, discuss with the father any proposal to remove the children from their school and preschool. 

22. The father responded to the mother’s email of 4 June, also on 4 June, indicating in inappropriate terms that he did not agree to her proposals. 

23. Notwithstanding her knowledge that the father did not agree to change the children’s school and preschool, the mother entered into a lease for a premises in Suburb E.

24. The mother did not file an application seeking the permission of the Court in relation to the proposed change of school and preschool. Rather, in circumstances where the parents, by operation of law absent any order pursuant to the Family Law Act 1975 (Cth) (“the Act”), have each parental responsibility for the children, she chose unilaterally to ignore and override the decisions that both parents had jointly made for the children.

25. The question of where the children attend school and what school they may attend are matters which are defined in the Act as issues of major long-term decision making. Absent specific orders of the Court, long term issues are to be determined by agreement between the parents.

26. The mother and the children moved into the leased premises at Suburb E on 8 July 2014. The mother did so in circumstances where she had been receiving advice from her present solicitors since at least May 2014. Her solicitors had written a letter to the husband’s solicitors on 6 May 2014. The mother was aware, both from the father’s email of 4 June 2014 and his solicitor’s subsequent letter of 20 June 2014, that the father did not consent to changing the children’s school and preschool.

27. The only issue to be determined today, the parties having agreed on the interim arrangements for the children, is whether the mother is to be permitted to enrol the children in a school and preschool near her home. This is a decision which falls to be made under Part VII of the Act and therefore is a decision which is to be made having regard to the best interests of the children, having regard to the matters in section 60CC of the Act insofar as they are relevant.

28. The children are young and have expressed no relevant views. The orders that I will make will not affect their primary residence with their mother. 

29. The mother’s unilateral actions have prevented the father from participating in a significant, major long-term decision in relation to both of the children. 

30. Both of the children were, on the evidence before me, settled in their Suburb D placements. B’s teacher has reported on his program in the first semester of 2014 in very favourable terms.

31. C has been in the same preschool since the beginning of 2013 and there is no suggestion that he is not happy and settled there. 

32. There is no evidence before me that there is any benefit to the children in moving either of them to a new school or preschool environment. 

33. The mother points to practical difficulties in transporting the children to and from Suburb D. Those difficulties are entirely of her own making, as a result of decisions made by her in full knowledge of the father’s position and with the advantage of advice from an experienced family lawyer.

34. There is no evidence that she is not able to resolve those difficulties by reverting to a residence in the vicinity of Suburb D. She may suffer a financial penalty from so doing, but there is no evidence before me in relation to that issue. 

35. The mother gives no evidence of any negotiations relating to the surrender of her current lease or the financial consequences of that surrender. The father, through his counsel, proposed the release to the mother of funds from the sale of the former matrimonial home, if she needed that assistance.

36. The best interests of these children require that decisions about their major long-term future be made by both of their parents. 

37. The application of the mother to enrol the children in school or preschool other than their current placements in Suburb D is dismissed. 

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 1 August 2014.

Associate:

Date:  1 August 2014