FEDERAL MAGISTRATES COURT OF AUSTRALIA
BYRON & MORONEY	[2010] FMCAfam 78	

FAMILY LAW – Parenting – schooling – compliance with consent orders – recent diagnosis of Asperger’s Syndrome.	

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

Re G:  Children’s Schooling (2000) FLC 93-025
Goode & Goode [2006] FamCA 1346	

Applicant:	MS BYRON	

Respondent:	MR MORONEY	

File Number:	SYC 249 of 2010	

Judgment of:	Kemp FM	

Hearing date:	28 January 2010 	

Date of Last Submission:	29 January 2010 	

Delivered at:	Sydney	

Delivered on:	29 January 2010	

REPRESENTATION
Counsel for the Applicant:	Ms Kennedy	

Solicitors for the Applicant:	Brazel Moore	

Solicitors for the Respondent:	Humphries & Feather	

ORDERS
(1)	Pending further order, the parties do all acts and things and sign all documents necessary to enrol the child, [X], born [in] 1997, (“the child”) at the [C] School and to ensure his attendance at that school for the commencement of his secondary education in 2010.  
(2)	Pending further order, the parties do all acts and things reasonably necessary to have the child cognitively and socially assessed in accordance with the recommendations of Ms Rachel Brace referred to in the Child Dispute Conference memorandum dated 28 January 2010.  
(3)	The parties have liberty to apply on two days notice.  
(4)	The matter be adjourned to 17 March 2010 at 9.30 am for mention.
(5)	Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Byron & Moroney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY	
SYC 249 of 2010
MS BYRON	
Applicant

And

MR MORONEY	
Respondent

REASONS FOR JUDGMENT
1.	By initiating application filed on 18 January 2010 the applicant mother seeks certain interim orders in respect of the child of the relationship, being [X] born [in] 1997 (“the child”), currently aged 12 years and five months, as follows:  
(1)	that the matter be heard urgently and that short service be allowed;  
(2)	that the following orders of 15 May 2006 be set aside:  
(a)	orders 1(a)(i), (ii), (iii) and (iv);  
(b)	order 1(b), order 3(i), (ii), (iii) (v) and (vi); and 
(c)	order 14.
(3)	In the alternative, the following orders be made:
(i)	that the child spend time with the father on three out of four weekends each month commencing with the first weekend of school term from the completion of school on Friday until the commencement of school on Monday morning;
(ii)	that the child spend half of each mid year school holiday period with each party by agreement and in the absence of agreement for the first half with the mother and the second half with the father;
(iii)	that the child spend half of each Christmas school holiday period with each party by agreement and, in the absence of agreement, for the first half with the mother and the second half with the father;
(iv)	at any other time as agreed between the parties and that the child shall live with the mother at all other times.
2.	The respondent father in his response filed on 27 January 2010 seeks his own interim orders as follows:  
(1)	that orders 12, 13, 14, 15, 16 and 17 of the orders made by the Family Court of Australia on 15 May 2006 be suspended;
(2)	that pending further order the parties do all acts and things and sign all documents necessary to enrol the child at [B] School for his secondary education and the parties shall ensure that the child remains enrolled in and attends that school for the entirety of his secondary education. 
3.	The mother’s application came before the Court on 20 January 2010.  On that occasion the matter was adjourned to 27 January 2010 at 2 pm for an interim hearing.  Altobelli FM on that occasion directed that the parties attend a Child Dispute Conference with a family consultant at a time and a date to be determined by the registry and pursuant to s.11C of the Family Law Act 1975 (“the Act”) such conference was to be reportable.  The respondent was directed to file and serve a response and affidavit in support by no later than 12noon on 27 January 2010 and the applicant was given leave to issue one short service subpoena to a Dr O, such subpoena being made returnable at 2pm on 27 January 2010.
4.	The Court, on that occasion, noted that the only issue for determination on 27 January 2010 was one of schooling.  The mother’s first schooling preference was the [C] School.  The father’s first schooling preference was [B] School.  
5.	When the matter came before the Court on 27 January 2010, 
Ms Kennedy of Counsel appeared for the mother and Mr Feather, Solicitor, appeared for the father.
6.	The Court specifically directed that the parties and the child attend a Child Dispute Conference at 10am on 28 January 2010 and, pursuant to s.11C of the Act, such conference was to be reportable. That conference was scheduled to be held with family consultant, Ms Rachel Brace. The court further noted that certain subpoenaed documents produced by Dr O were to be provided to Ms Brace and the Court noted further that Dr O had not consulted with the father and that the appointment with the child and Dr O was made without the father’s consent.
7.	The orders of the Family Court of Australia made on 15 May 2006 are included in these reasons as if fully set out herein.  
8.	The applicant mother relied on her affidavit sworn 14 January 2010 and filed on 18 January 2010.  
9.	The respondent father relied on his affidavit affirmed 27 January 2010 and filed on that day.  
10.	The following documents were placed into evidence: Exhibit A, Google map showing the location of the mother’s home, the father’s home and the proposed schools;  Exhibit B, prospectus document from the [C] School (page 1 identified);  Exhibit C, a document from the [A] School;  Exhibit D, a letter from [B] School addressed to the mother concerning the child’s successful placement in the 2010 year 7 enrichment class and enclosing his 2009 writing component results and 2009 general achievement test together with a statement referrable to the placement test for the year 7 enrichment class;  Exhibit E, the second page of the letter provided by Dr O following his observations of the child and the subject of the subpoenaed documents;  Exhibit Court 1, being the Child Dispute Conference memorandum prepared by Ms Rachel Brace, following the child inclusive conference held on 28 January 2010.
11.	The Court hears this matter on an interim hearing basis as the parties have confirmed there is urgency in obtaining relief.  The child was due to commence his high school education on 28 January 2010 and as at the date of delivery of these reasons the child has missed, it would appear, two days of his schooling.  
12.	The Court’s determination is based largely on a study of the documents before it, including the affidavits read and the submissions of the parties’ legal representatives.  There is no provision at the interim hearing stage for a more extensive hearing where evidence can be tested in cross-examination and where the Court can make findings of fact after testing credit and truthfulness.
13.	The Court, however, did allow the parties the opportunity of examining the family consultant, Ms Rachel Brace, and afforded the father the opportunity of leading some evidence-in-chief as a result of a request by Ms Kennedy to cross-examine him in respect of an issue concerning his recent separation from his current wife and the impact that that may have on his current proposal before the Court.
14.	The mother submits that the Court should give weight to the agreement reached by the parties the subject of the minutes of consent orders made the order of the Family Court of Australia on 15 May 2006 and, in particular, order 12 which stated that the parties had agreed that the child should complete his primary education at [P] School and, thereafter, at a mutually agreed upon high school located on the Central Coast upon the child’s commencement at high school [emphasis added].
15.	Order 13 relevantly provided that both parties would agree to allow the child to sit the entrance examination to [G] School and further agreed to send the child to that school should a position be obtained by the child.  In the event the child was not successful in gaining placement at that school, the child should attend a mutually agreed upon private school located on the Central Coast [emphasis added].
16.	The mother says that, notwithstanding order 13, it would appear that both parties missed the date for the child to sit the relevant examination for selection to the [G] School.  Accordingly, the mother wrote to the father on 19 September 2008, a letter which forms annexure A to her affidavit.  That letter provides a copy of the child’s results on literacy and mathematics and details of the mother’s discussions with the child’s teacher.
17.	The mother says that she believed that the child was not reaching his potential because he was not in the right schooling environment.  The mother proposed a number of schools for the father’s consideration, including the [S] School, [T] School, [E] School, and [W] School.
18.	The mother says that the father did not respond to that letter.  The father does not dispute that he failed to respond to the letter but gives evidence of the parties’ subsequent attempts at reaching a settlement of the issue.  The mother says that she sought to arrange a mediation through Centacare but the father says that he was unhappy with that organisation given its religious base.
19.	A mediation session was subsequently arranged and held at the Family Relationship Centre, although it appeared that the father arranged that partly on the basis that he could appear by way of telephone conference link given his work commitments.
20.	The mediation which occurred on 9 February 2009 appeared simply to confirm the parties agreement as set out in the 2006 Family Court orders, namely, for the child to sit the [G] Selective School Test.  Again, as stated above, this agreement appears to have occurred after the date that the test should otherwise have been sat for.  
21.	There is a dispute as to the child’s level of academic achievement.  The mother said that he was shown in the last two reports to be in the two lowest percentiles in respect of most of his subjects at school.  The father disputes this and says that the child is bright and gifted and achieves the good results as shown in the annexures to his affidavit, being copies of the child’s school reports for the last two semesters of his years four, five and six.  The child obtained overall sound results in his last report in most of his subjects, but with higher results in mathematics and science and technology.  
22.	Those reports also show that the child’s absences from school have substantially reduced since 2007 and up to 2009.  In 2007 he was absent some nine days; in 2008, five days; and in 2009, on one day, with two partial absences.  
23.	The mother says that she arranged for the child to attend [B] School to sit the enrichment class examination.  There the mother says that the child said to her that he did not wish to go to that school.  Further, she says she observed that he avoided some of his peers and friends who had also attended on that day.  The father says that he accepts the child does suffer from some emotional issues which may explain why he did not speak to his peers.  
24.	The child completed the test and scored 31 out of a possible 60 marks in that test, with scores “above average” in mathematics, but “below average” in English and science literacy.  On the basis of those results, however, [B] School confirmed a position for him in the enrichment class.
25.	The mother said that she made application for the child to also attend [W] School because of his interests in computers.  The father took the child to that test, and as a result the child has received an offer from that school.  Both parents, it would appear, however, have agreed that [W] School is not an appropriate school for the child.  
26.	The mother says that the father has advised the child that he is going to [B] School.  The father disputes this.  
27.	The mother says that the father expressed the desire to have the child enrolled at [N] School at [suburb omitted], which is some 
94 kilometres from the mother’s residence.  The father said that he never made that proposal other than stating that it would be nice if the child could attend that school with his step-sisters.  However, the father said that he understood that this school was simply out of the question given the mother’s location and inability to get the child to school in the morning.
28.	The mother says that the father had moved residence some six times and had not discussed these moves with her.  The father says no orders prevented him from moving and there were a number of personal matters occurring in his life which were the basis of such moves.  The mother further says that she resided on the Central Coast and has done so since about 2001, and that while the father also resided there, that he had moved off the Central Coast some years prior to his agreement to the 2006 consent orders.  The mother says that there has always been an agreement between the father and the mother that the child would be educated on the Central Coast.  The father would appear to have sworn an affidavit, an extract of which has been provided as an annexure to the mother’s affidavit, which stated his intention to enrol the child in a Central Coast Catholic school as part of an application, the mother asserts, for Family Provision relief.  The father does not dispute this in his affidavit.
29.	The mother says that the father has had a history of enrolling the child in schools in close proximity to his residence.  The mother says that in 2000 and after the father had enrolled the child in [P] School, without her consent, she continued to adhere to the consent orders of December 1999 and made eight trips to and from that school each fortnight to collect the child pursuant to those orders.  It would appear the child was living with the father at that time on eight out of every fourteen nights, pursuant to the orders made in 1999.  
30.	The child was living with the father on nine out of every fourteen nights under the Family Court orders made in 2006.  The mother says in her affidavit that the child has said to her that she should not worry as her obligation to make the trips up and down the F3 freeway would cease pursuant to the 2006 orders.  
31.	The mother further makes complaint about the adequacy of the father’s looking after the child, including leaving him alone in the morning and in the afternoon and allowing him to travel to school in circumstances where he arrives late.  Further, complaints are made about the child’s head lice, dental condition and his personal hygiene.  While the mother says that she has contacted Department of Community Services (“DOCS”) concerning these, the father says that he has received no communication from DOCS and that these are matters of dispute.  
32.	The mother says that the advantage of the [C] School from the child’s point of view is that he will be able to attend with her daughter, who will be in year 11 in 2010.  She says that he will be able to catch a bus to the school with his sister at 8am in the morning, the bus stop being two doors from the mother’s residence.  The child would be able to return home on the bus in the company of his sister.  As well, the mother says that the child’s older brother has a vehicle and licence and would be able to assist in the transportation of the child to and from school.  The mother also says this about the child’s sister when she subsequently obtains her licence.
33.	Of significance in this matter is that the mother says that she has had concerns about the child for some time, and she took the child to see a Dr O, a behaviour specialist, at [suburb omitted].  The mother says that the doctor “diagnosed” the child with Asperger’s.  This diagnosis had not been previously discussed with the father, nor had there been any agreement to retain Dr O.  In that regard, a subpoena issued by the mother caught a draft report from Dr O, page 2 of which has been tendered before the court.  
34.	That report simply stated that the child demonstrated unusual body language for his age, that he avoided giving social eye contact, and that he often kept his eyes closed and looked downwards at the floor.  The report records that the child said he had no best friend but then mentioned [names omitted].  Dr O provides a plan which includes an Autism questionnaire for the parents, and the doctor noted that the child was actually showing typical characteristics of Asperger’s Syndrome.  It would appear that the doctor was not prepared to provide a more detailed diagnosis until the completion of a second appointment.  
35.	The mother says that as a result of that, she believes that it is in the child’s best interests to live predominantly with her.  She, therefore, suggests a change in the “live with” orders, the subject of the 2006 Family Court consent orders.  She says that she does not believe the previous arrangement with regard to shared care is in the best interests of the child, given the doctor’s views concerning the child’s social problems and what she says is the recent diagnosis of Asperger’s.  The mother details a number of issues which would indicate that the parents lack the ability to communicate.  The father’s evidence in his affidavit supports that lack of ability to communicate between the parents.  
36.	The father, in his affidavit, says that it would be impossible for him to take part in any school activities with the child if the child attended [C] School, as he worked in the Sydney CBD.  The father did not offer any explanation as to how that would have been different, given his agreement to the existing orders 12 and 13 of the 2006 Family Court consent orders.  
37.	Further, the father said that he had agreed to the child being baptised a Catholic so that he could attend the school that the mother wished him to attend.  
38.	The mother says that this was [school omitted], [W], where the child was to commence his schooling in kindergarten in 2003.  The mother says that the father telephoned the school and cancelled his enrolment.  The father does not dispute this.  
39.	The father appeared to have been instrumental in enrolling the child in [D] School at [address omitted], being close to his residence, and then at [K] School, again, close to him when he was required to move residences, and then, subsequently, to [P] School when the father moved to [omitted].  All of those moves occurred prior to the 2006 Family Court consent orders.  
40.	The father says that [B] School is a location accessible to both parents.  However, the 2006 Family Court orders contemplated an agreed change of the child’s high schooling to the Central Coast.  It may well have done so in recognition of the mother agreeing to the child’s primary school years being closer to the father to assist the child.  
41.	By way of background facts:
a)	The father was born [in] 1965 and is currently 44 years old.  
b)	The mother was born [in] 1968 and is currently 41 years old.  
c)	The child of the relationship, [X], was born [in] 1997 and is currently 12 years old.  
d)	The father is employed as a [occupation omitted].  
e)	The mother is a self employed [occupation omitted].  
f)	The father lives at [address omitted] with his wife and works in the Sydney CBD.  
g)	The mother lives at [omitted] on the New South Wales Central Coast with her husband, who she married in August 2001.  
h)	The child has attended [P] School for a number of years and completed his primary school education at that school.  
i)	The mother has three children of an earlier relationship:  [Q], aged 20, [R], aged 18, and [S], now aged 16 years.  [R] and [S] still reside with the mother.  [S] will be in year 11 in 2010 and attends the mother’s proposed school, [C] School.  The mother’s husband’s son, [name omitted], is 21 years old and has left home.  
j)	The child has confirmed spots at [B] School, the father’s proposed school; [C] School, the mother’s proposed school; and [W] School in the Information Technology program. Both parents agree that the [W] School is not an appropriate school.  
k)	The child has missed out on applying for [G] School which is, itself, a selective high school.  
l)	The mother says that the child does not wish to go to [B] School.  
m)	The father does not seek to enrol the child in [N] School at [suburb omitted], being a school where his step-daughters, [Y] and [Z] attend.  
n)	The parties do not appear to have communicated about the child’s schooling since at least May 2009.  
o)	On 18 January 2010, the mother commenced these proceedings.  
42.	There appear to be a number of disputed facts, including 
a)	whether the father had said to the child that [B] School was where he was going to attend;  
b)	whether the father had failed to care for the child with regard to his meals, clothing and personal hygiene;  
c)	whether the father had failed to adequately treat the child’s nit problems, and the adequacy of any treatment;  
d)	whether the child has expressed negative views about the [C] School, where the father says that the child understands he will receive approximately four hours per week of religious education in circumstances where the child does not wish to receive that education;  
e)	whether the child [S] has any issues with drug use.  
43.	In order to gauge the child’s views, the Court has had regard to the Child Dispute Conference memorandum prepared by Ms Rachel Brace.  In that memorandum, Ms Brace reports that the parents continue to disagree as to which high school the child should commence attending in 2010.  They appear to disagree about the child’s views in relation to which school he would like to attend, or about which school best meets his needs;  that there appears to be a hostile and conflicted parental relationship with poor communication between the parents, who appear to have significant difficulties in talking to one another and sharing information about the child.  The parents further agree that the child has some behavioural and communication difficulties, specifically in relation to social interactions and being able to appropriately engage with other people. The child is aware that the majority of students commenced high school on 28 January 2010.  
44.	Ms Brace records that there were some indications that the child carried a sense of responsibility about being the one to have to make a decision about which high school he should attend.  He stated he would like his parents or the court to make that decision for him.  When asked about his thoughts about the high school he should attend, the child said, “I just don’t know which school to pick.”  
45.	The child further indicated that he was not feeling “too good” about starting high school due, in part, because “one of his parents is going to be unhappy.”  The child did not express any views to Ms Brace that indicated that he had any preference about which high school he would like to attend.  Ms Brace records it is unclear whether this is because he has a sense of loyalty to each of his parents and does not want either of them to feel upset or unhappy and/or because he actually has no preference. 
46.	Ms Brace records that the child’s presentation during his meeting with her apparently appeared similar to that observed by Dr O.  Ms Brace records that while the parents each appear to have different views about the issues involved in the child attending the school, due to the child’s special needs, special consideration needs to be given to his education.  Ensuring his attendance at the right educational placement is self-evidently of crucial importance, she records.  However, she also states that no matter how good or effective a school placement, the child’s progress is likely to be significantly compromised unless his teachers and his parents can all work together and respect each other’s views.  Ms Brace records that the child will require both the support of, and permission, from each of his parents if he is to appropriately engage in learning, regardless of which school he attends.  
47.	Relevantly, Ms Brace states that any views expressed by the child in the past or in the future should be interpreted with some caution in view of his social impairment and his limited and immature understanding of his needs.  She states that if he was to express any views, it is suggested that it is his fundamental social and emotional needs, rather than his expressed views, that determine the outcome of which school he attends. 
48.	Of critical significance to the recommendations of Ms Brace is that there needs to be an up-to-date cognitive and social assessment of the child which would be required to help clarify and identify his needs as they currently exist, and that both parents and the child should be involved in that assessment.  
49.	As stated, Ms Brace was the subject of oral examination, and her oral evidence was entirely consistent with the memorandum prepared by her. Ms Brace provided some evidence as to the appropriate organisation, being [A], which would be available to carry out an assessment for the child, the timing and costs of such an assessment.  However, Ms Brace would not assess, herself, any level of cognitive impairment for the child, his capacity to travel, by himself and on public transport, and what the particular schools, referred to by the parents, level of support were, referrable to the child’s condition. 
Ms Brace concluded by stating that regardless of which school is selected, there will be significant changes for this child.
50.	Returning to the terms of the agreement, the subject of the 2006 Family Court consent orders.  The terms of that agreement should not be lightly set aside on an interim hearing.  On the mother’s evidence, the child was well aware of a proposed change which would reflect a more equal time and travelling regime.  There is a benefit for the child in having the parents’ agreement concerning him respected.  The father says that the child will lose his connection to his friends.  No doubt this would have been a predictable outcome of orders 12 and 13 of the 2006 Family Court consent orders which contemplated the child’s move to a high school out of the child’s primary school feeder area.  
51.	The father’s evidence is that 17 of his cohort at the primary school will be attending [B] School, but names two friends, and one in particular, who would be attending the same enrichment class with the child.
52.	Ms Brace’s memorandum did not seem to place the same emphasis for this child on such friendships, and it may be that having his sister in the same school, notwithstanding the age difference identified, would give him a degree of support in making the transition from primary to high school education.  These are largely imponderables, given the lack of any specific evidence concerning this child and, in particular, his needs for specific support.  
53.	The mother has asserted that the father has always intended to enrol the child at [B] School.  The father would appear to dispute this.  
54.	The father, in his response, seeks to discharge the week about live with orders, the subject of the 2006 Family Court consent orders.  He says, however, that these orders were agreed to “by myself when the child reached high school age under pressure from the court-appointed mediator”.  He says that it is not now in the child’s best interests. The basis for that submission is, as Mr Feather argues, the diagnosis of Asperger’s.  
55.	While this purported diagnosis was raised by the mother, the father, while not expressly accepting it, agreed that, if it exists, it is a changed circumstance which the Court would have regard to under the Rice & Asplund principles.  However, those principles are not entirely apposite given that both parties seek orders, to some extent, inconsistent with some of the 2006 Family Court consent orders.  The mother, however, says that, with respect to the schooling issue, she seeks simply interpretation and enforcement of that order.
56.	The Court is of the view that there is simply not enough evidence before it as to what Ms Brace says is the child’s position on the Autism spectrum and that this would require a detailed assessment, in accordance with her recommendations.  Indeed, in her oral evidence, Ms Brace stated that such an assessment should have occurred within the primary school environment, where an assessor could sit in class and observe the child for that purpose.  
57.	The father further appears to support his submission that the [C] School is not in the best interests of the child as, when the order for the high school education was made, the child was only eight years old and now the child is 12 years.  That, in itself, is not an attractive submission.  Further, the father says that the child would be removed from his known environment, habits, friends and social structures.  However, that would appear to have been the effect known to the father, at the time of his entry into the 2006 Family Court consent orders, of those orders.
58.	Further, the father says that he, himself, would be removed almost completely from the child’s life.  This does not appear to be what the father understood would be the case under the 2006 Family Court consent orders, as he agreed to a week-about regime, consequent upon that change in schooling.  At the time of his agreement, he was living exactly where he is living now.  The Court finds it hard to accept, on an interim hearing basis, that the father says that he would not now be able to effect a week-about arrangement, when there would appear to be no change in his living or working conditions.  
59.	Mr Feather says from the bar table that the position would appear to have been that the father thought he could effect such an arrangement if the child obtained a place at [G] School, due, he said, to its location close to public transport.  However, the order also contemplated other Central Coast private schools if the child was unable to secure a place there. This would appear to substantially weaken the father’s submission in that regard.  
60.	The Court is of the view that the child must start his high school education.  Any delay while further reports are obtained would not be in the child’s best interests. That until such assessments can be carried out, the 2006 Family Court consent orders should be enforced.  Those orders have been in the parties’ and, it would appear, the child’s, contemplation for some time.  If the child’s school has to be ultimately changed after a final hearing then that, unfortunately, will have to be accommodated.  Certainty for this child has, at least, been spelled out in the 2006 Family Court consent orders and that certainty would otherwise, at this stage, be in the child’s best interests going forward.  
61.	Accordingly, the Court is of the view that the child should commence his high school at the [C] School, given that it is that school which appears, between the parties’ competing proposals, to most closely resemble that the subject of the 2006 Family Court consent orders, that is, it is a private school on the Central Coast.  The father’s proposed school does not satisfy that test.  
62.	Further, the [C] School at least lies between the mother’s residence and the father’s residence, as the crow flies, as shown in Exhibit A.  The Court notes that the father’s proposed school is not physically between the parties’ residence, but appears to exist further south of the father’s own residence.  In that regard, the Court has considered the Full Court of the Family Court’s decision in Re G:  Children’s Schooling (2000) FLC 93-025, which makes it clear that the assessment of this Court is not one of comparing necessarily relevant merits of a school, but that there is considerable substance to an argument that some weight should be given to the travel commitments associated with the proposed school and its location between the parents.
63.	A decision concerning schooling is necessarily a parenting decision, which involves the Court, in considering the best interests of the child as paramount.  
64.	The best interests of the child are to be determined by an examination of the factors as set out in s.60CC of the Act.  These factors are to be examined, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles, as set out in s.60B of the Act.  The objects are to ensure the best interests of the child are met by ensuring that the child has the benefit of both of his parents having a meaningful involvement in his life, to the maximum extent, consistent with the best interests of the child and protecting the child from physical or psychological harm;  from being subjected to or exposed to abuse, neglect or family violence;  and ensuring that the child receives adequate and proper parenting to help him achieve his full potential;  and ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of the child.  
65.	The principles are that the child has a right to know and be cared for by both his parents, regardless of whether his parents are married, separated, have never been married or have never lived together, and a child has a right to spend time on a regular basis with, and communicate on a regular basis with, both of his parents and other people significant to his care, welfare and development, such as grandparents and other relatives, and that parents jointly share duties and responsibilities concerning the care, welfare and development of a child;  that the parents should agree about the future parenting of a child, and that a child has a right to enjoy his culture.  
66.	The Full Court of the Family Court of Australia, in Goode & Goode [2006] FamCA 1346, set out a number of procedural steps to be followed on interim applications.  Those procedural steps include identifying the competing proposals, identifying the issues in dispute, identifying any agreed or uncontested relevant facts, considering the matters in s.60CC that are relevant and, if possible, making findings about them, noting that, in interim proceedings, there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.  
67.	The Court is of the view that, in the circumstances of this matter, there is no reason why equal shared parental responsibility for the child should not apply to these parents.  
68.	The Court has given thoughtful consideration to Mr Feather’s submissions that, pending a proper assessment of the child, there should be as little change as possible.  That scenario, Mr Feather says, would see a continuation of the current regime, being nine out of fourteen nights with the father and with the father’s choice of school, given that a number of the child’s peers and friends will be attending there.  However, that involves the enforcement of a status quo which flies in the face of the parties’ agreed orders, which were to effect a change for the child’s high school education and a change in the live with arrangements as and from the date of commencement of his high school education, as contemplated by those orders.  
69.	As to practical implementation, there may need to be some discussion between the parties for the father to be able to put the child on the train to [G] and for the mother to meet the train and deliver the child to the [C] School.  The Court is not of the view that the father’s assertion that he could have no role in the child’s education, if educated at that school, should be accepted at this interim hearing stage.  Accordingly, the Court is not of the view that the selection of that school would necessarily mean that the father is unable to continue a meaningful relationship with the child when considering the primary considerations under s.60CC(2).  There is no issue before the Court of a need to protect the child from physical or psychological harm, or from being subjected to or exposed to abuse, neglect or family violence.  
70.	When considering the additional considerations under s.60CC(3), the Court has referred to the competing parental views as to the child’s wishes, but adopts the views of Ms Brace in that it is likely that the child is reflecting what each of his parents would like to hear concerning the choice of school.  In light of Ms Brace’s memorandum, the Court gives little weight to any such expression of views by the child.  
71.	The Court has had regard to the nature of the relationship of the child with each of the child’s parents.  The father has, up until the child’s proposed commencement at high school, exercised the majority of overnight time with the child spending some nine nights per fortnight.  The mother’s evidence was that she has exercised the remaining five nights per fortnight and has been involved in travelling to and from the school with the child.  
72.	The Court has had regard to the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.  It would appear that the parties’ current lack of ability to communicate has impacted on this issue.  
73.	The Court has had regard to the likely effect of any change in the child’s circumstances.  If the week about routine commences in accordance with the 2006 Family Court consent orders, that will see the child living with the mother for an additional two nights per fortnight, and for a reduction of two nights in the father’s time.  
74.	The Court has had regard to the practical difficulty and expense of a child spending time with and communicating with a parent, and whether that difficulty and expense will substantially affect the child’s right to maintain personal relationships and direct contact with both parents on a regular basis.  The father says that because he works in the Sydney CBD, any school on the Central Coast would impact with his ability to maintain relations with the child.  On an interim basis, the Court does not accept that submission, bearing in mind the father’s agreement to the 2006 Family Court consent orders, when he lived where he does now and when he worked where he does now, namely, in the central CBD of Sydney.  The father still was of the view that he was able to exercise and maintain a week about regime with the child.
75.	The Court, further, has had regard to the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs. Both parents seem capable of providing those needs, notwithstanding the level of communication difficulties between them.  
76.	There is nothing for the Court relevantly to consider under s.60CC(3)(g), (h), (j) or (k).  
77.	The Court notes that this is an interim hearing under s.60CC(3)(l).  
78.	The Court has also had regard to the factors in s.60CC(4) and (4A).  Both parties assert failures against each other in regard to making decisions concerning the child’s educative future, though it appears without doubt that the parties have not communicated since May 2009 about this child’s high school future.   
79.	The Court has considered the material exhibited, and notes in Exhibit B that the [C] School offers student learning and a development support program on a needs basis for its students, particularly those deemed in need of extra assistance.  The school also offers a social and personal resilience training program aimed at developing emotional resilience and socially responsible behaviour.  However, a complete assessment of the competing schools will need to await an assessment of the child himself as such an assessment is likely to impact on what services are otherwise available from the schools referred to.  However, there is no specific evidence from [B] School concerning any additional support provided.    
80.	The Court directed the parties on Thursday night to make contact with [G] School as that was the school that the parties both thought that the child should sit the relevant examination pursuant to the 2006 Family Court consent orders.  As a result of that, both parties made an inquiry of that school, and the Court has been provided with emails from both Ms Kennedy and Mr Feather to similar effect, namely, that there appears to be no current spots available in year 7.  However, there may be a spot in year 8 in 2011.  Ms Kennedy’s email confirms that forms would be available in June 2010.  Mr Feather’s email states that there would be a test to be effected in June 2010 to gain entry to that school.
81.	The Court does not propose to alter the “live with” arrangements which come into force pursuant to the 2006 Family Court consent orders.  Accordingly, the father’s concern at being removed from the child’s life as a result of any schooling order made today would not arise.  Those orders would see the child still spending seven nights a fortnight with the father and seven nights a fortnight with the mother, that is, week about time.  Further, the father notes in his affidavit material that a week about regime is as the child wishes.  
82.	Finally, the Court has been concerned by one issue, which was the subject of the father’s oral evidence.  The father appears to have told the child that he is separated from his current wife and that in three to four months, they may be moving from their current residence.  The father, in his oral evidence, played down the circumstances of his separation.  It would appear that he is separated but still living under the same roof.  The father stated that he and his wife had considered counselling and enquiries had been made concerning real estate where he could move to.  
83.	What was telling was that the areas that he considered were [suburbs omitted]. Notwithstanding the uncertainty concerning his circumstances, the father had made no inquiries of any real estate further north from his current location to contemplate the child’s schooling on the Central Coast.  While the father agreed that if the separation continued and the father and his wife physically moved from their current residence it would be potentially upsetting for the child, this issue was not disclosed by him to the Court. The Court gives this failure to disclose some weight in its assessment of the parties competing proposals and in a consideration of the father’s exercise of parental responsibility.  
84.	Accordingly, the Court is of the view that the mother’s proposed school should be preferred for the reasons referred to above.  The Court will make the orders as set out at the commencement of these reasons.    
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Kemp FM

Associate:  Joanne Balson

Date:  2 February 2010