Adelstain & Byron
[2021] FamCA 4
•18 January 2021
FAMILY COURT OF AUSTRALIA
Adelstain & Byron [2021] FamCA 4
File number(s): SYC 1582 of 2018 Judgment of: HARPER J Date of judgment: 18 January 2021 Catchwords: FAMILY LAW – PARENTING – Schooling – Where the parties have been involved in dispute since separation – Where the child is to attend kindergarten in January 2021 – Where the parties cannot agree on the school the child will attend – Where there is no discernible differences in the schools proposed by the parties – Where the father will pay school fees for the school proposed by him – Where the mother has no capacity to pay the fees of her proposed school – Turns on own facts .
FAMILY LAW – PARENTING – Injunctions – Where mother seeks relocation to B Region on a final basis - Where the mother has previously unilaterally relocated – Where recovery order made, and the mother returned to NSW – where mother has complied with Court orders since unilateral relocation – Where the father seeks injunctions restraining mother from travel outside NSW – Where maternal grandparents live in B Region – Injunctions refused – Turns on own facts.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65D, 65DAB Cases cited: Banks & Banks (2015) FLC 93-637
Bilz & Breugelman [2013] FamCA 578
In the Marriage of Paisio (1979) FLC 90-659
Jollie & Dysart [2014] FamCAFC 149
Marvel & Marvel (2010) 43 Fam LR 348
Re G (Children’s Schooling) (2000) FLC 93-025
SS & AH [2010] FamCAFC 13
Tibb & Sheean (2018) 58 FamLR 351
Number of paragraphs: 38 Date of hearing: 14 January 2020 Place: Sydney Solicitor for the Applicant: Mr Boyce Respondent: Ms Byron Solicitor for the Independent Children's Lawyer: Mr Lennon ORDERS
SYC 1582 of 2018 BETWEEN: MR ADELSTEIN
ApplicantAND: MS BYRON
RespondentINDEPENDANT CHILDREN'S LAWYER
Other
ORDER MADE BY:
HARPER J
DATE OF ORDER:
18 JANUARY 2021
THE COURT ORDERS THAT:
1.The parties forthwith do all things and sign all necessary documents to enrol or complete the enrolment of X, born … 2015 (“the child”), to attend D School (“the school”) and to facilitate the child’s ongoing attendance at the school commencing kindergarten on and from term one of the 2021 school year, with the father to pay all costs and expenses of and associated with such enrolment.
2.Pending further order or agreement of the parties, the child attend the school.
3.At all times, the parties shall take all necessary steps to comply with any state and federal government orders and directions made by reason of the COVID-19 pandemic, including travel restrictions.
4.Proposed Order 9 of the Application in a Case filed 15 September 2020 by the Applicant Father be dismissed.
5.The Application in a Case filed 18 December 2020 by the Applicant Father be otherwise dismissed.
6.Proposed Orders 1 and 2 of the Response to an Application in a Case filed 12 January 2021 by the Respondent Mother be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Adelstein & Byron has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
INTRODUCTION
These are parenting proceedings between Mr Adelstein ("the father") and Ms Byron ("the mother") concerning the child, X born in 2015 (“the child”).
The father commenced the proceedings by filing an Initiating Application on 14 March 2018 seeking parenting and property orders. The proceedings have come before the Court a number of times, and on 16 May 2018 consent orders were entered into which set out the current parenting arrangements.
Under the current parenting arrangements the child lives primarily with the mother. There was no dispute that she has been and is the primary carer. The child spends time with the father on a two-week cycle as follows: in week one from after day-care or 5.00 pm on Wednesday to before day-care or 9.00 am on Friday, and in week two from after day-care or 5.00 pm on Friday to before day-care or 9.00 am on Monday in week one. Consequently the child spends five nights per fortnight with the father.
The father has filed an Application in a Case on 15 September 2020 and a further Application in a Case on 18 December 2020. The mother filed a Response to the Application in a Case of 18 December 2020 on 12 January 2021, although the Response appears, somewhat confusingly, be included to include the Court’s Application in a Case form. As the mother nonetheless electronically filed the document as a Response, I will consider it such.
In combination those respective Applications, both parents seek a range of parenting and procedural orders. However, only two issues, arising from the respective Applications in a Case and Response, were listed for interim hearing on 14 January 2021. Firstly, at which school the child should commence kindergarten and, secondly, whether any injunctive relief should be granted restraining the mother from enrolling the child in any school without agreement of the father and constraining travel by the mother outside New South Wales.
I note here that as part of her claim for final relief the mother seeks an order that she be permitted to relocate with the child to the B Region in Queensland. There was no dispute at the interim hearing that this question could not be determined on an interim basis and would await final hearing. Consequently, for the purposes of the interim hearing, apart from injunctive relief, the only schooling question was which school should be chosen for the child in the Sydney area as an interim measure.
In light of the narrow issues for determination, it is only necessary to set out background factual matters in the course of discussion.
RELEVANT LAW
An order regarding a child's schooling is a parenting order. Part VII of the Family Law Act 1975 (Cth) ("the Act") regulates parenting orders. Section 65D(1) provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of s 61DA and s 65DAB of the Act.
At an interim hearing, the Court's determination is based only on affidavits read, documents tendered and submissions of the parties; findings made at an interim hearing should be "couched with great circumspection": SS & AH [2010] FamCAFC 13 at [88]; Marvel & Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101 at [122].
The best interests of a child are the paramount consideration for the Court when making orders in a parenting matter (s 60CA of the Act) and are to be determined by an examination of the considerations as set out in s 60CC of the Act, weighed and applied within the ambit of the objects and their underlying principles as set out in s 60B of the Act.
Although consideration of each statutory factor in s 60CC is mandatory, express discussion is not: Banks & Banks (“Banks & Banks”) (2015) FLC 93-637; [2015] FamCAFC 36 at [48]; Tibb & Sheean ("Tibb & Sheean") (2018) 58 FamLR 351; (2018) 337 FLR 149; [2018] FamCAFC 142 at [84]. The proposals of the parties, the issues that are joined, their evidence, and the manner in which they have run their case will largely determine what requires discussion: Tibb & Sheean at [87]; Banks & Banks at [48]-[50]. While I have considered the factors in s 60CC, the narrow issues for determination and the evidence and arguments of the parties confine the necessity for discussion.
SCHOOLING
In relation to schooling, the leading authority is the Full Court of the Family Court of Australia's decision in Re G (Children’s Schooling) (2000) FLC 93-025; (2000) 26 Fam LR 143; (2000) 155 FLR 459; [2000] FamCA 462. This decision has been followed many times. In Bilz & Breugelman [2013] FamCA 578 at [81]-[83] Austin J explained the relevant principles as follows:
[81] Schooling disputes are not resolved by application of a "blanket presumption" or preference for the views held by the residential parent (Re G at [29], [45], [65]). The [C]ourt is required to apply the objects and principles of Part VII of the Act and to consider the statutory criteria in forming conclusions about the child's best interests (Re G at [66]-[68]).
[82] That is probably self-evident, but other more generalised observations were made by [the Full Court]. In particular, the process of evaluation should not entail an assessment of the relative merits of the schools preferred by the parties, at least in circumstances where the competing schools are prima facie satisfactory (Re G at [91]-[92]). Ordinarily, it will be in the child's best interests to attend a school close to his or her residence, and further, it is proper to consider evidence as to any greater effect of the decision upon the resident rather than non-resident parent (Re G at [92]-[93]), but that does not mean the convenience of the non-resident parent is ignored (Eden-Proust at [56]-[63]). While the views of the child are relevant to the inquiry, as s 60CC(3)(a) of the Act now stipulates, those views are usually not determinative. That is because, unless a child is actively unhappy in a particular school environment, it is not at all unusual for the child to express a desire to remain at his or her existing school (see Re G at [96]).
[83] There is conflict in the authorities about whether any prior agreement between the parties concerning the child's schooling is influential (see Re G at [92]; Eden-Proust at [48]). There also seems a difference of opinion about the need to refer specifically to each of the factors enumerated in s 60CC or whether it is permissible to simply analyse the evidence discursively with those factors in mind (see Re G at [67]-[90]; Eden-Proust at [69]).
As will become apparent, religious questions are closely related to the issue of the child's schooling in this matter, at least for the father. I note here that the Courts have long adopted a neutral position with respect to issues of religion, whereby one religion cannot be preferred to another, nor should a "religious" upbringing be preferred to a "non-religious" upbringing, or vice versa: In the Marriage of Paisio (1979) FLC 90-659; (1978) 26 ALR 132; (1978) 5 Fam LR 281.
The father comes from a religious background, and it is clear that he takes his faith and cultural heritage very seriously. For him these are important elements in his suggestion of a suitable school for the child. The father attended D School at Suburb C (“D School”) himself. He believes it is an excellent school and has always wished for his child to attend D School. D School is a school founded in the religious tradition of the family.
Although the father is currently unemployed, he is undertaking further study and according to his financial statement filed 13 January 2021 presently holds in a bank account approximately $292,000 which is the balance of an inheritance he received from his father. He gave evidence that the annual tuition fee at D School starts at around $21,000 for kindergarten, increasing to around $36,229 for year 12. He contended that he is in a position to pay the D School fees himself.
His mother, Ms P (“the paternal grandmother”), provided an affidavit in support of his case in which she gave evidence that she is prepared herself to assist the father to pay the school fees for D School from her own savings if necessary. The paternal grandmother did not provide a financial statement but asserted in her affidavit that "[i]t is well within my means to pay the costs and expenses associated with X's future attendance at D School and I will ensure that my estate documents are updated so that this issue is taken account of in the event of my passing".
The father and the paternal grandmother live in the same apartment block at F Street, Suburb G.
As an alternative, the father sought an order that the child attend H School. There was no dispute that the father's current residence falls within the H School catchment area.
The mother does not appear to place importance on religion and culture, at least not to the same extent as the father. She does not treat religious instruction as an important element in the choice of school. Indeed, her evidence and submissions suggested that she considered an institution with a more secular approach to education would be in the best interests of the child.
Nonetheless, the mother in her Response to an Application in a Case sought an order for the child to attend J School. J School is also founded in the religious tradition, is located in Suburb G, and, according to the mother, offers a more secular education than that offered by D School.
The mother currently lives at K Street, Suburb L.
As an alternative to J School, the mother argues that the child should attend M School. Her residence at Suburb L falls into the M School catchment area.
It became clear during the course of submissions that both parties and the Independent Children’s Lawyer (“ICL”) agreed that D School and J School were good schools. The mother gave evidence that the parents had jointly completed an application enrolment only for J School. However, exhibited to the affidavit of the father sworn 12 January 2021 were copies of applications for admissions to both schools, and the application for admission to D School appears to have been signed by the mother on 29 June 2020, although the copy provided lacks any signature from the father.
Be that as it may, it is clear both parties have a first preference for the child to attend a private school. Although they both acknowledge the possibility of the child attending a state school, in each case this is a fall-back position.
D School and J School are located 8 km from each other. The father gave evidence that D School is within walking distance of his residence. The mother gave evidence that J School is a three minute drive or a 10 minute walk from the father's residence and 34 minute drive from her residence. In argument, the mother eschewed any suggestion that travel time between her residence and J School would be detrimental to the child. The mother agreed in argument that she also has no concern about travel time between D School and her residence, which is roughly equivalent to the travel time between her residence and J School.
The father was clear that he was prepared to pay the school fees for D School but for no other private school, including J School. In her argument, the mother put in issue the father's capacity to pay the school fees for D School. However, I am satisfied that the evidence provided by the father in his financial statement, supported by the evidence of the paternal grandmother, is sufficient to find at an interim hearing that the father has the capacity to meet the D School fees for several years at least. It cannot be known whether that capacity will change during the course of the child's schooling until year 12, but it is unnecessary to form a view about such a question at an interim hearing dealing with the commencement of the child at kindergarten.
The mother was clear that she presently lacks the capacity to pay J School's school fees, although she raised the possibility that she may be eligible for a form of fee relief upon application to J School. There was, however, no basis to form any view on the evidence as to whether such application was likely to be successful. The father was quite clear that he would not pay school fees for J School.
Accordingly, in summary, the position put to the Court is as follows. Both parties want the child to attend a private school in preference to a state school. They agree on private education, but not the specific private school. Two private schools are put forward of roughly equal value, and, broadly speaking, equally proximate to the residences of the father and the primary carer, the mother. There is no basis to choose one proposed private school over the other by reason of quality, distance or convenience. However the fees of only one, D School, will be met. In those circumstances, I am persuaded that it is appropriate to make interim orders for the child to commence her schooling by enrolment at kindergarten at D School College.
In accordance with the authorities referred to above at [13], I take a neutral position on the religious aspects of the schooling debate, and do not rest my decision on any finding or submission that D School has a more religious curriculum, or that J School and state schools have a more secular focus in the education they offer.
I note here that it was the proposal of the ICL that the child attend M School. In submissions, the ICL confirmed that this proposal was based primarily upon the proximity of M School to the residence of the mother as primary carer and absence of school fees.
However, in my view, where neither party supported M School as their first position, and where both supported a private school as their first position, the factors set out in [28] are sufficient at an interim stage to persuade me that the proposal of the ICL should not be accepted.
INJUNCTION
The father also sought two injunctions; one preventing the mother from attempting to enrol the child in any school to commence kindergarten in term one of January 2021 without his prior written consent or order of the Court, and the other restraining the mother from taking the child or causing her to be taken outside New South Wales without the father's prior written consent or order of the Court.
I am not inclined to impose such injunctive relief upon the mother.
No sufficient basis has been put forward for the proposed order of the father restraining the mother from enrolling the child in a school. Such an order would be unnecessarily prescriptive in my view, especially in light of the fact that the mother has willingly engaged in an orderly debate before me to determine the appropriate school for the child. The father made a number of submissions the thrust of which was that the Court could not be satisfied the mother would abide by orders of the Court in light of her earlier conduct. I am not persuaded by those submissions. Whilst it is unlikely the mother will be pleased with the orders I propose to make for the child to attend D School, I am not satisfied that this would constitute any motivation for her to unilaterally attempt to enrol the child in a different school in the Sydney area in defiance of the Court orders. An order that the child attend D School, pending further order, will bind both parties and is sufficient.
I am not inclined to make any orders restraining the mother from travelling to the B Region. The father accepted in submissions that it is well established by the authorities that a parent has freedom of movement. It is true that in October 2019 the mother unilaterally sought to relocate herself and the child to the B Region in Queensland. The mother returned after a recovery order issued. While that particular incident does not reflect credit on the mother, it has not been repeated, and an order, made by Senior Registrar Campbell on 23 October 2019, currently restrains the mother from relocating the child 30 km from Suburb G, without the father’s written consent or order of the Court.
The maternal grandparents live in B Region. They are part of the child's extended family. The mother wanted to travel with the child during the Christmas holiday period between December 2020 and January 2021, but abandoned those plans when the father expressed objection. She was, however, quite candid in telling the Court that she wished to travel to the B Region prior to commencement of semester one, 2021 in order for the child to spend a weekend with her maternal grandparents. I am not persuaded there is any sufficient reason to prevent this happening, subject of course to government travel restrictions.
The father also made reference to travel restrictions arising from the COVID-19 pandemic. It is impossible for the Court to form any view about the course, trajectory or revolution of the COVID-19 pandemic within the Commonwealth of Australia; it is plain that the situation ebbs and flows. In those circumstances, it is appropriate that an order be made for both parties to be constrained to only travel in accordance with government travel restrictions that may be in force from time to time.
Accordingly I make the orders set forth at the commencement of these reasons.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 18 January 2021
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