Connor & Wing [2008]

FAMILY LAW - APPEAL FROM DECISION OF FEDERAL MAGISTRATE – CHILDREN - SCHOOLING – Where the parties had entered into consent orders which noted that they had agreed their child should attend a primary school which was “central to both parents’ residences” – Before the Federal Magistrate the mother sought orders that the child attend a particular primary school and the father sought that the child attend a different primary school – Federal Magistrate ordered that the child attend the primary school nominated by the father on the basis that it was central to both parties’ residences and would lead to less travelling for the father, and therefore less expense being incurred by him from transporting the child to and from school – Appeal allowed on the basis that the Federal Magistrate erred in the calculation of the costs that would be incurred by the father transporting the child to and from the two schools – Order amended to be interim rather than final – Issue of primary schooling arrangements to be re-considered at a final hearing of the matter before the Federal Magistrate.

Connor & Wing [2008] FamCAFC 19 (28 February 2008)

Last Updated: 11 March 2008

FAMILY COURT OF AUSTRALIA

REPRESENTATION

ORDERS

(1) That the appeal be allowed.
(2) That Order 1 of the orders made on 10 December 2007 be amended to read as follows:

“That Order 7 of the Orders made on 20 November 2006 is amended by providing that until further order the child ... is to attend the [primary school in G].”

(3) That the parties’ cross applications for final orders in relation to the primary school arrangements for the child be heard by the Federal Magistrates Court on 29 July 2008 (or on such other date as may be determined by that Court).
(4) That the Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by the appellant mother in relation to the appeal.
(5) That the Court grants to the Independent Child’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Child’s Lawyer in respect of the costs incurred by the Independent Child’s Lawyer in relation to the appeal.

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

Appeal Number: EA 147 of 2007
File Number: CAC 1964 of 2007

Appellant

And

Respondent

REASONS FOR JUDGMENT

1. This is an appeal by Ms Connor (“the mother”) against Order 1 of the orders made by Brewster FM on 10 December 2007 in proceedings between the mother and Mr Wing (“the father”). That order amended a previous order made on 20 November 2006 to provide that the parties’ daughter, K, should attend a school in the suburb of [G].
2. By way of factual background it is only necessary to say that on 27 April 2006 the parties had entered into interim consent orders which essentially provided for K to live on an equal time basis with each parent.
3. On 20 November 2006 the parties entered into further consent orders which provided that the interim orders made on 27 April 2006 should become final orders. In addition, and in particular for present purposes, Order 7 of the orders of 20 November 2006 provided:
   1. THAT the child attend a Catholic school for her primary education and ... Catholic College for her secondary education. It is noted that the parties have not agreed upon a primary school at this time but have agreed that her primary school should be central to both parents’ residences.
4. On 10 October 2007 the mother filed an application in the Federal Magistrates Court in which she sought interim orders in the following terms, as well as final orders in virtually identical terms:
   1. That the Child of the relationship ... attend [primary school in C].
   2. That the mother ... shall be included on [M] ... Primary School enrolment forms.
   3. That the child of the relationship ... shall live with the Mother.
   4. That the Child ... spend time with the Father as follows:
      1. Every second weekend after School Friday to before School the following Monday.
      2. Half of each School holiday period being the first half in even numbered years and the second half in odd numbered years or otherwise agreed between the parties.
      1. At such times as agreed between the parties.
5. On 19 November 2007 the father filed a response in which he sought by way of both final and interim orders the following orders:
   1. That the Final Orders made in Federal Magistrates Court of Australia on 20th November 2006 remain in place.
   2. That Order 7 of the Federal Magistrates Court Order (CAM 404/ 2006) made on 20th November 2006 be amended to “That the child attend [the primary school in G] for her Primary School Education and [MK] Catholic College for her Secondary School Education”.
6. The dispute as to whether K should attend the Catholic primary school at [C] (as sought by the mother) or the Catholic primary school at [G] (as sought by the father) came before Brewster FM for hearing on 10 December 2007. On that occasion both parties appeared without legal representation. Both had filed a number of affidavits (the content of which I will refer to later). After the mother had made some oral submissions (the content of which I will also refer to later), his Honour informed the father that he did not wish to hear from him.
7. His Honour then delivered an oral judgment in which he concluded that the child should attend the school in [G], and he therefore made an order in the following terms:

(1) That Order 7 of the Orders made on 20 November 2006 is amended by providing that the child ... is to attend the [primary school in G].

1. His Honour also ordered that “this matter” (by which his Honour presumably meant the mother’s application for final orders filed on 10 October 2007) be listed for final hearing on 29 July 2008. His Honour also made directions for the appointment of an Independent Child’s Lawyer.
2. I will refer shortly to his Honour’s reasons for judgment in relation to the order which is the subject of the appeal. But before doing so, I consider it necessary in this case to refer to the evidence which was before his Honour and to the submissions made to him.

THE PARTIES’ EVIDENCE BEFORE BREWSTER FM

1. In her first affidavit filed on 10 October 2007 in support of her application, the mother stated she had another child, B, from a previous relationship; that she is solely responsible for that child; that B attends the primary school in [C]; that she, the mother, is involved in activities at that school; that she had informed the father on “numerous occasions” that she would prefer that K attended the [C] school because B attended that school and that (in effect) she could not be at two schools at the same time; that K had indicated a preference for attending the [C] school which is around the corner from the mother’s home; that K was to attend an orientation session at the school on 29 November 2007.
2. In his first affidavit filed on 16 November 2007, the father referred to email correspondence which he had had with the mother concerning the child’s primary school. He then explained that as from 9 January 2008 he would be working in the centre of the ACT, and he also explained that although he had the support of his long term partner (who has two children of her own) and a child care family, he did not have the same level of family support in Canberra as the mother has. He further explained that he was responsible for school transport for all three children, and that the significant travel to [C] would have a detrimental impact on all family members. The father also said that he understood that the mother’s other child, B, would only be at the [C] school for another two years. The father further claimed that the [C] school was not “central to both parents’ residences” as required by the orders of 20 November 2007.
3. In her second affidavit filed on 30 November 2007, the mother provided details of her income and expenses. She also provided details of the fees that would have to be paid at both the [C] and [G] schools, including the discount which would be available at the former school if her two children attended that school.
4. In his affidavit filed on 3 December 2007, the father provided some details of his financial position and of what would be the costs to each parent of having the child at the [G] school. He repeated his claim that the mother’s other child, B, would only be at the [C] school for another two years, and that thereafter the mother would then have to arrange transport to two different schools at the same time.
5. The father filed a third affidavit on 7 December 2007 largely in response to the mother’s affidavit filed on 30 November 2007. In the course of this last affidavit, the father repeated that once B moved from the [C] school in two years, the mother would not receive the fee discount and would have to travel to two schools. He also stated (paragraph 9) that the “travel expenses to travel from [C] [where the mother now lives] to [G] would be considerably lower than the costs of running a vehicle from [P] [where the father lives] to [C]”.

THE MOTHER’S SUBMISSIONS TO BREWSTER FM

1. In her oral submissions to Brewster FM, the mother explained that she had a great deal of involvement with the [C] school because of her son’s attendance there and that it would be difficult to maintain the same level of involvement at two schools; that K wanted to attend the [C] school and had attended an orientation day for that school; that the [G] school “would create a logistical nightmare for... drop off and pick up” because she did not want one child “hanging around” while she picked up the other; that it would be cheaper if K attended the same school as her brother; and that it would create financial hardship if K had to attend another school.
2. There was then a brief discussion between his Honour and the mother concerning other matters which were the subject of her application and the need for a further hearing in relation to those matters (subject to a sufficient change of circumstances being established).
3. Then in answer to questions from his Honour, the mother informed him that there would be seven years of primary school for K, and that B had started at [C] in 2007 after moving from a school at [M].
4. As mentioned earlier, after the mother concluded her submissions his Honour said that he did not need to hear from the father.

THE REASONS FOR JUDGMENT OF BREWSTER FM

1. His Honour commenced his reasons for judgment by explaining that the dispute which he had to resolve on that day concerned the school which K would attend when she started school in 2008, with the mother wanting her to attend a school at [C] near where the mother lived and the father, who lived in [P], wanting her to attend school in [G] which his Honour described as “about midway between the parties’ homes”.
2. His Honour then explained by reference to “whereis.com” that the distance between [P] and [G] was 8.7km and from [C] to [G] was 8.56km, with [P] to [C] being 15.65km.
3. His Honour then referred to Order 7 of the orders of 20 November 2007, including to the notation that the school should be central to both parties’ residences, and he said that in making his decision he would have regard to that notation. He then commented that the school at [G] was central to both parties’ residences but the school at [C] was not.
4. His Honour then observed that there were “significant advantages” in the child attending the school at [C], and he proceeded to explain those advantages in the following way:
   1. There are, however, significant advantages were the child to attend [the primary school in C]. The child’s older brother attends [the primary school in C]. I am told that he wants the child to attend [the C school], but his best interests are not my primary concern. But still it would be nice for [K] to attend the same school as her brother. However, that is not going to exist for much longer. Her brother has another two years at that school. The mother is involved in [the C school]. There are also logistical difficulties of course with having, at least for the next two years, children in two different schools, although that will occur in a couple of years’ time perforce when the mother’s son goes to secondary school. There are also financial issue which I will now discuss.
   2. On the face of it, the issue in relation to finance seems to be quite compelling. This is because if for the next two years [K] were to attend [the primary school in C] there would be two children attending that school and as a result there would be a substantial discount in relation to the fees payable, a saving of something in the order of $3,500 over the period of two years. After two years of course the economies by having two children at the school cease to exist for the remaining years. That on its face seems a cogent reason to make an order that the child attend [the C school]. But it is not the end of the matter.
5. His Honour then turned to the additional travelling, and thus expense, which the father would have if the child went to the [C] school, saying:
   1. If the child were to attend [the C school] the father will face additional travelling and that will cause him expense. I have indicated the distances involved. It would involve the father’s travelling an additional seven kilometres each way. So to and from and to and from, because it is twice a day, would involve four trips; 28 kilometres a day. Twenty-eight kilometres a day five days a week for 40 weeks a year is some 5,600 kilometres. That would involve a significant expense, mainly for petrol, but also as to the other costs involved such as wear and tear, having to replace tyres and get services more frequently and the like.
6. After referring to material from the Australian Taxation Office and the Australian Bureau of Statistics concerning the costs of motor vehicle travel, his Honour continued:
   1. Using these figures it is obvious that travel involves a significant expense. If it is 5,600 kilometres per annum at 10 litres per hundred kilometres that totals 560 litres of fuel. At $1.40 a litre, which I understand is about what fuel costs these days, it would be some $784 a year. If I were to add just over $100 to that, which I think is being conservative, for wear and tear and services and tyres and the like,
      I come to a figure of about $900 which I think is conservative. After four years the extra cost would be about $3,600, about the same as the savings that are occasioned by sending the child to [the C school]. Whilst the overall costs are less at [the C school], the additional cost to the father would mean that he would actually be out of pocket. There is also the fact that he would have to do all the extra travelling as well and would have to allow time to do that; time and inconvenience.
7. Then referring to the parties’ earlier agreement his Honour concluded:
   1. I place great weight on the fact that the parties agreed that the primary school, whatever it was, should be central to both parents’ residences. One can assume, so far as the father is concerned, that the consent orders were agreed to on that basis. It would, in my view, require substantial reasons why I should not make an order consonant with those orders. I do not find the reasons for the attendance at [the C school] substantial enough. The order will be that the child attend the [school in G].
8. His Honour then speculated that if the mother was to be successful in setting aside the earlier consent orders and have the child live with her, then she might “be allowed” to remove the child from the [G] school and enrol her at the school in [C].

THE MOTHER’S APPEAL

1. The seven grounds of appeal contained in the mother’s notice of appeal against his Honour’s order concerning the primary school which the child is to attend assert the following errors on the part of his Honour:
   1. ... Made an error in the findings of fact in the manner in which he calculated the additional distance travelled, and the cost to the respondent.
   2. Exercised his discretion wrongly in the weight he placed on the financial circumstances of the respondent despite convincing reasons I put forward.
   3. Exercised his discretion wrongly in the weight he placed on the financial circumstances of the respondent as the respondent had not claimed any financial difficulty, nor provided sufficient financial information to allow any meaningful comparative analysis.
   4. Made an error in the findings of fact in that the respondent is not likely to transport [K] to and from school, but rather from his carer, therefore would not have any additional costs regardless of which school [K] attends.
   5. Exercised his discretion wrongly in that he omitted the impact that the order made would have on me financially. The result is an order which clearly places a far greater financial burden on me, than the order sought would have placed on the respondent.
   6. Erred in law by not treating the best interests of the child as the paramount consideration.
   7. Erred in law by including evidence of travel associated costs not introduced by the respondent.

PRINCIPLES WHICH GOVERN APPEALS AGAINST PARENTING ORDERS

1. Before considering the mother’s complaints regarding his Honour’s decision, it is important to emphasise that that decision is what is known in law as a discretionary decision or discretionary judgment. That essentially means that a different Judge might have reached a different, or indeed entirely opposite, decision from that reached by the Judge who made the order which is the subject of the appeal, without either Judge being wrong.
2. An appeal against such a discretionary judgment can only succeed if it can be established that the Judge or Magistrate at first instance made an error of law (or legal principle), or made an error of fact that had a significant impact on the ultimate decision, or took into account an irrelevant matter, or failed to take into account a relevant matter, or gave too much or too little weight to a relevant matter; or if it can be established that the decision is so unreasonable or unjust, that it can be inferred by the appeal court that the discretion has not been properly exercised. (See the decision of the High Court in House v The King [1936] HCA 40; (1936) 55 CLR 499).
3. It is also important to emphasise that his Honour had to decide this case on the basis of the material which the parties put before him at the time, which was a time before the child started school. In the absence of either party seeking leave to adduce further evidence (which neither party sought to do, and which leave is, in any event, not easily obtained), I have to determine whether his Honour erred (in the way asserted by the grounds of appeal) on the basis of the material which was before him (and which I have earlier summarised). But if I was to re-determine the matter, I must do so on the basis of presently existing circumstances.

DISCUSSION OF GROUNDS OF APPEAL

(1) Agreement noted in the orders of 20 November 2006

1. In opposing the appeal and seeking to uphold the Federal Magistrates’ order, the father relied on the agreement embodied in Order 7 of the orders of 20 November 2006, being that the child’s primary school “should be central to both parties’ residences”.
2. For her part the mother submitted that that agreement did not have the status of an order, but was only a notation. That, of course, is true, and indeed it was recognised as a notation by his Honour in paragraphs 3 and 4 of his reasons for judgment.
3. But whether the agreement was embodied in an order or in a notation to an order, it was an agreement between the parties, and it was on “the fact” of this agreement that his Honour said in paragraph 11 of his reasons that he placed great weight.
4. I understood the mother also to endeavour to argue before me that that the agreement should not be given weight, not only because it was only contained in a notation to an order, but also because her residence had subsequently changed from [R], where she apparently lived at the time the consent orders of 20 November 2006 were entered into, to [C], which is further away from the father’s residence at [P] than is [R]. She also sought to rely on the deterioration in her relationship with the father since November 2006.
5. However, it would appear that she did not rely on these matters before the Federal Magistrate, and in any event, it was presumably her choice to move to a suburb further away from where the father lived. Furthermore I have difficulty in seeing why the state of the parties’ relationship should have relevance to the weight to be given to the earlier agreement.
6. Accordingly, I am satisfied that his Honour was entitled to put the weight which he did on the parties’ earlier agreement. But, I must, of course, also be satisfied that his Honour did not otherwise err in the exercise of his discretion.

(2) The father’s alleged use of carers for the child’s school transport

1. A further matter on which the mother sought to rely in support of her appeal, is the matter to which Ground 4 of her grounds of appeal would seem to be directed, being her claim that it is the child carers (who the father employs to assist him when the child is in his care) rather than the father himself, who usually take the child to school and pick her up after school (when she is in the father’s care). The child carers live in [M], which is a suburb next to, or at least in close proximity to, [G]. Thus, it is apparently the mother’s case that the father’s costs of travel, on which his Honour also placed considerable weight in reaching his decision, was effectively an irrelevant matter.
2. The issue of the child being taken to, and collected from, school by carers rather than the father was not an issue that the mother can be seen as specifically having raised before his Honour, either in her affidavits or in her submissions to him. Thus, it cannot be said that his Honour erred in not having had regard to that matter in reaching his decision.
3. Nevertheless, given the following passage in the transcript, it would seem that the mother may have been trying to raise this matter before his Honour (Transcript 10/12/07, pp 1 – 2):

[THE MOTHER]: With regard to schooling, I guess we’re ready to proceed and hear what your decision is. But in response to some of the issues raised in the respondent’s affidavit, I need more time to collect supporting affidavits towards the care arrangements. There are affidavits forthcoming from teachers and childcare workers.

FEDERAL MAGISTRATE: I’ve really got to make a decision on this. I’ve adjourned already because you kept telling me things from the Bar table which weren’t in affidavit form. I don’t think it’s appropriate for me to adjourn it whilst you get ---

[THE MOTHER]: Yes, I mean, I understand the school thing. I guess we can proceed with that. But with the care arrangement, there are – my husband’s done an affidavit, which hasn’t – like, I’ve tried to lodge it this morning but couldn’t. It corroborates what I’m saying about [the father].

1. I understood the father’s position on this matter to be that his child-care arrangements were not, so to speak, “set in concrete”, and that his Honour could not therefore be said to have been wrong in focusing in his judgment on the father’s costs of transporting the child to and from school (even if they are not always incurred).
2. Given that I have some concerns about this matter, I will return to it in due course.

(3) The father’s costs of school travel and the parties’ financial circumstances

1. As part of her challenge to his Honour’s decision, and in particular to the weight which he had placed in reaching that decision, on the costs which the father would incur if he had to drive to and from the school at [C] each school day, the mother asserted in Grounds 3 and 7 of the grounds of appeal, that the father had not raised such costs as an issue in the case.
2. However, as I explained to the mother during the hearing of the appeal, the father had raised the issue of the costs of travel from [P] to [C] sufficiently, in my opinion, in paragraph 9 of his affidavit (filed 7 December 2007) to permit his Honour to regard that matter as a relevant matter, and one on which he should place weight (see earlier at paragraph 14 of these reasons).
3. I mention at this point that to the extent that Ground 7 might be read as asserting that his Honour was not entitled to consider material form the Australian Taxation Office and the Australian Bureau of Statistics as indicative of motor vehicle travel costs in circumstances where it had not been relied on by either party, I understood the mother ultimately not to challenge his Honour’s reliance on this material.
4. Rather the mother’s more significant, and it must be said, valid complaint regarding his Honour’s assessment of the father’s travel costs, is that in paragraph 7 of his reasons, his Honour proceeded on the basis that the father would be travelling for 40 weeks a year, whereas in fact because the child spends equal time with each parent, the father only has to undertake that travel 20 weeks per year. This error was then carried through into paragraph 10 of his Honour’s reasons, where he referred to fuel costs of $784 per year with an additional figure for wear and tear of a little over $100. These asserted errors are the subject of the mother’s first ground of appeal.
5. I agree with the mother that these were errors on his Honour’s part, and that his calculations should have proceeded on the basis that the father has only to travel 20 weeks per year, and thus his costs should have been calculated at $450 per year rather than $900.
6. It would appear from paragraph 10 of his reasons, that his Honour then used this erroneous figure of $900 per year to establish that after four years the savings in school fees of $3,500 (attributable to the two years when B would still be at the [C] school and identified earlier in paragraph 6 of his reasons) would in effect, be cancelled out. This would clearly not be the case if the travel costs to the father were only $450 per year. Indeed on the basis of this lower figure, the father’s total travel costs for the seven years, which K would be at primary school, would only be $3,150.
7. Given the extent to which this factual error concerning the number of weeks which the father would have to travel to and from the school can be seen to have affected his Honour’s later reasoning, it has to be concluded that his Honour’s discretion has miscarried. Thus, the appeal must be allowed on the basis of Ground 1.
8. The mother also complains in Ground 5 that his Honour did not take into account the financial impact on the mother of his order that the child should attend the [C] school. Particularly in paragraph 14 of her Pre-Argument Statement (on which she was permitted to rely as her summary of argument for the purposes of the appeal) the mother endeavoured to demonstrate the costs for her of having to travel to [G].
9. It may well be that his Honour did not concern himself with the mother’s travel costs because he was only concerning himself with the additional costs to the father of travelling to a place (being [C]), which was beyond the approximate mid-point (being [G]) between the parties’ residences. There would have been no need on this approach to consider the mother’s travel costs.
10. Nevertheless, given the extra costs in school fees which would be incurred by both parties at the [G] school (at least in the first two years), it might have been desirable for his Honour to examine more closely, or perhaps provide greater elaboration of his reasoning in relation to, the parties’ respective financial positions. But out of fairness to his Honour, it must be emphasised that he clearly had limited time to determine the matter, and he also had limited material before him regarding the parties’ financial positions.

THE FUTURE COURSE OF THIS MATTER

1. Having determined that the appeal must succeed on the basis of Ground 1, the question becomes whether I should order a re-hearing by the Federal Magistrates Court of the interim applications which were before his Honour on 10 December 2007, or whether I should re-determine those applications myself (that is, re-exercise the discretion originally vested in his Honour).
2. In considering these options, it has to be remembered that there is to be a “final hearing” on 29 July this year (2008) of the mother’s application to change the current shared care arrangement for the child to an arrangement whereby the child would live for the greater part of the time with the mother. But whether the court will ultimately permit a re-opening of the issue of the child’s living arrangements is at present unknown (as Brewster FM himself indicated in paragraph 14 of his reasons for judgment of 10 December 2007). Also unknown, of course, is the outcome of any such re-opening (if a re-opening is permitted).
3. Because of that impending final hearing, there would seem to be no purpose at this stage in having another interim hearing of the applications concerning the child’s primary school. This is because the court re-hearing the interim applications would not know what the living arrangements for the child will be in six months’ time, and so would be most unlikely to change her school (to [C]) at this time because of the risk that in the July hearing her current school ([G]) may be determined to be the appropriate school.
4. In her submissions to me, the Independent Child’s Lawyer (who had not been appointed at the time of the hearing before Brewster FM on 10 December 2007) expressed great concern regarding the impact on the child of any unnecessary changes in her school and also of any additional litigation between her parents. I consider that there is great force in these concerns expressed by the Independent Child’s Lawyer.
5. In considering the option of a further interim hearing by the Federal Magistrates Court, I also take into account that it is an extremely busy court, and there would be a real question as to how soon it could re-hear the interim applications.
6. For all these reasons, I consider that I should not order that the interim applications concerning schooling be remitted to the Federal Magistrates Court for re-hearing. Rather I should re-determine the interim applications myself.
7. In my re-determination of the interim applications (which must be done on the basis of the existing situation), the matter to which I must give overwhelming weight, is the fact of the final hearing on 29 July this year of the applications concerning the parenting arrangements for the child.
8. As a result of that final hearing, the child may continue to live for equal periods of time with both parents, or alternatively she may live principally with her mother. If she was to live principally with her mother, it is possible that the father might agree to her attending the [C] school, or regardless of the father’s attitude, the court might decide that [C] was the appropriate school.
9. On the other hand, the outcome of the July final hearing could be that the child continues to live for equal periods of time with both parents, and in those circumstances the court may decide that, notwithstanding the mother’s arguments favour of the [C] school, the child should nevertheless attend the [G] school because of its approximate half-way position between both parents’ homes.
10. Given this uncertain background concerning the child’s living and schooling arrangements after 29 July this year, it would, in my opinion, be extremely unsettling for the child, and thus not in her best interests, if I was at this time to change her school from [G] to [C], in circumstances where at the hearing on 29 July this year, the court might decide that she should return to the [G] school. Therefore I am not prepared to change the school which the child is currently attending.
11. I am, however, concerned that it is not entirely clear on the face of Order 1 of Brewster FM’s order of 10 December 2007, that that order (being that the child should attend the [G] school) is in fact only an interim order. I am also concerned that should the mother not be permitted to re-open the issue of the residence arrangements for the child at the hearing on 29 July 2008, that the issue of schooling (which as a result of this appeal remains a live issue) may be overlooked (particularly given that the parents are both self-represented).
12. I therefore propose to amend his Honour’s order of 10 December 2007 to make it clear that it is an interim order only. I will also make a further order to ensure that there is no misunderstanding but that the cross applications for final orders in relation to the primary school arrangements for the child are to be heard on 29 July 2008.
13. At the final hearing of the cross applications in relation to schooling, the court will be able to reconsider the financial implications for each parent of their respective proposals (being the basis on which this appeal has succeeded).
14. The court will also then be able to consider the question of whether the father’s child-care arrangements have any relevance (financial or otherwise) to the issue of the primary school which the child is to attend. It will be recalled that it was a matter of some concern to me that the mother might not have been able to manage to pursue this issue before his Honour. At the final hearing she will be able to do so (if she so wishes).

COSTS OF THE APPEAL

1. Given the success of the appeal, I propose to grant the mother a certificate under the Federal Proceedings (Costs) Act 1981 in respect of costs which, although self represented, she may have incurred in relation to the appeal. I will also grant the appropriate certificate to the Independent Child’s Lawyer.
2. The father informed me that he had incurred no legal costs in connection with the appeal, and thus a certificate would be of no assistance to him.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:
Date: 28 February 2008