ANDREWS & EMERY (No.2)
[2017] FCCA 1852
•9 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANDREWS & EMERY (No.2) | [2017] FCCA 1852 |
| Catchwords: FAMILY LAW – Interim parenting matter involving the choice of pre-school for a young child – no evidence before the Court regarding how or why a certain level within the (omitted) system is best for the child in question – parties’ preference per se is no legal basis for changing current educational regime – parties’ preference is not a legally recognised or enforceable category of “right”. |
| Legislation: Family Law Act 1975 (Cth), s.60CA |
| Cases cited: AMS v AIF (1999) 199 CLR 160 AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Byrnes v Kendle (2011) 243 CLR 253 Re G: Children’s Schooling (2000) 155 FLR 459; (2000) 26 Fam LR 143 Gronow v Gronow (1979) 144 CLR 513 House v R (1936) 55 CLR 499 |
| Applicant: | MR ANDREWS |
| Respondent: | MS EMERY |
| File Number: | CAC 870 of 2015 |
| Judgment of: | Judge Neville |
| Hearing date: | Written submissions |
| Date of Last Submission: | 4 May 2016 |
| Delivered at: | Canberra |
| Oral Reasons delivered on: | 20 May 2016 |
| Written reasons delivered on: | 9 August 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Watts McCray Lawyers |
| Solicitors for the Respondent: | Farrar Gesini Dunn |
ORDERS
On the basis that the Mother pays all fees and expenses, the child X (born (omitted) 2013) shall continue only in the PTP program and shall not do or be enrolled in anything else, pending a final hearing.
The matter remains listed for pre-hearing Directions on 18 October 2016 at 2:00pm in Canberra.
IT IS NOTED that publication of this judgment under the pseudonym Andrews & Emery (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 870 of 2015
| MR ANDREWS |
Applicant
And
| MS EMERY |
Respondent
REASONS FOR JUDGMENT
Introduction
Once again, the completely over-taxed “public resources” of the Court are being stretched and utterly burdened further in relation to a matter that has already occupied a significant amount of the Court’s time.[1]
[1] The detailed and signal references to Court’s being “public resources” is set out by French CJ in AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [5] and [23] – [27].
To speak generally, most unfortunately, family law litigation, with its immense discretionary range in judicial determination, at both first instance and on appeal, seems especially adept in allowing if not inadvertently encouraging regular recourse to Courts to resolve contests between parties who, often for ignoble and/or other (regularly, quite petty) reasons, are simply unwilling to settle matters. It is a very rare case indeed that involves any matter of legal or other principle. More often than not, it is all about (or simply about) what this or that parent “wants”. “Personal want (or preference)” is not a regularly or usually recognised (let alone enforceable) category of legal right; it is more usually associated with street protests.
Indeed, family law litigation, precisely because of its basal discretionary nature and therefore (to speak colloquially) the regular approach of practitioners (and others) of “why not give this or that argument a “run” either at first instance or on appeal because one never knows if someone else might reach a different result”,[2] is the complete and very regular manifestation of what Gleeson CJ (in a different context) warned when he said (emphasis added):[3]
In the common law system of civil justice, the issues between the parties are determined by the trial process. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal. Most decisions of trial courts are never the subject of appeal. When there is an appeal, the appellate court does not simply re-try the case. Depending on the nature of the appeal provided by statute, courts of appeal act according to established principles by which their functions are constrained. Those principles reflect the primacy of the trial process and the practical limitations upon the capacity of a court which does not itself hear the evidence justly to disturb an outcome at first instance…
[2] Such an argument of course runs directly counter to the long-standing but often very flexibly applied instruction by the High Court laid out clearly in cases such as House v R (1936) 55 CLR 499, and Gronow v Gronow (1979) 144 CLR 513.
[3] Swain v Waverley Municipal Council (2004) 220 CLR 517 at [2].
A particular consequence of the utter unpredictability of result in family law litigation – either at first instance or otherwise – is the complete inability of practitioners to be able to advise clients with any semblance of certainty what even the so-called “range” of a result might be. In such circumstances, it is therefore perfectly natural and understandable that practitioners will regularly run an argument, or an appeal, to see if (in fishing terms) they might “jag” a better result for their client.
And in the current matter, it may be that Gleeson CJ’s comment regarding the exhaustion of resources of the parties is happening here with the Father now self-represented while the Mother, who has a significant medical issue, either has the financial resources or her highly experienced lawyers are acting pursuant to some [properly] private arrangement.
In any event, the following chronology is relevant to the reasons that follow:
(a)11th September 2015: following the delivery of oral reasons, pursuant to s.69W of the Family Law Act1975 (“the Act”), the Court ordered that there be a parentage test for the child Y, born (omitted) 2015 (the parentage test ultimately confirmed Mr Andrews to be Y's Father);
(b)20th October 2015: the Court made Orders, by consent, among other things, in relation to the child X’s name;
(c)30th October 2015: by consent, the Court made orders in relation to the preparation of a family report and the terms of reference for same;
(d)10th February 2016: further consent Orders were made in relation to the family consultant;
(e)20th May 2016: pursuant to oral reasons delivered (on which more later) Orders were made for X to remain enrolled in a specific (omitted) program (“PTP Program”) (rather than the (omitted) “Cycle 1 Early Learning Program”) and for the child not to be enrolled in anything else pending a final hearing;
(f)19th April 2017: following a final hearing in November 2016, final Orders were pronounced (and reasons delivered), which Orders restrained both parents from relocating with the children outside the ACT region (the Mother having sought to relocate to Perth);
(g)16th May 2017: Mother filed an appeal in relation to three discrete issues (parental responsibility, “school”, X’s name).
For current purposes I need also to note the following matters.
As recorded in the chronology, on 11th September 2015, following the delivery of oral reasons, I made Orders for the parents to undergo a parentage test. In her affidavit material, the Mother had affirmed that she disputed Mr Andrews’s paternity of Y. Yet she resisted the very straight-forward resolution of this seminal issue of agreeing to a paternity test for Mr Andrews. Respectfully, as the reasons delivered lamented, why or how the Mother could resist a parentage test in circumstances where she herself was the one who raised the question of parentage was astonishing. No less astonishing was that her lawyers ran such opposition. Various “costs Orders” could or should have been contemplated at that time. In the result, it was confirmed that Mr Andrews is Y's Father.
There was no appeal from the Court’s determination of the issues then before the Court. Nor were formal reasons requested/required on this occasion.
The next imbroglio that engaged the Court was the contest in relation to a “schooling matter” that concerned X. Following the provision of written submissions, oral reasons were provided, and Orders made, on 20th May. There was no appeal from the Orders then made; nor were written reasons requested.
However, following the Mother’s appeal being lodged in May 2017 in relation to certain discrete final Orders, a Registrar “requested” that the reasons delivered on 20th May 2016 be provided in writing. So, with only hundreds of matters requiring attention (just in family law, but with a large number in general federal law matters also), the Registrar directed, via the Mother’s solicitors, that written reasons for a judgment delivered 15 months or so ago be provided. I leave to one side the curious situation of a Registrar effectively directing a Judge to provide written reasons in relation to a decision made some 15 months or so earlier when neither party ever sought written reasons.
And people wonder, doubtless despairingly, why the family law system is so lugubriously tardy if not totally broken. Lawyers will still get their costs whenever anything gets heard; parties still wait interminably; trials and appeals bank up prodigiously. The system, like Kafka’s tortuous “Machine”, grinds on remorselessly, relentlessly, with little or no filter on trials or appeals. Fortunately, from my own experience with general federal law matters and appeals, such is not the case in appeals to the Federal Court of Australia. One might ask, not unreasonably I suggest, why that is so; however such analysis of trial and appeal backlogs is not appropriate here.
In any event, what follows are the reasons for the Orders made on 20th May 2016, as revised.
Minute of Orders Sought by Applicant Mother
The Mother filed an Application in a Case on 8th March 2016. She sought the following Orders:
1. That forthwith the father and mother do all acts necessary to X, 24 August 2013 (“X”) transfer from the (omitted) Program (PTP) to (omitted) Cycle 1 Early Learning Program, commencing 21 July 2016.
2. That from 21 July 2016, the existing care and handover arrangements for X be amended such that:
a. each Wednesday, the mother shall deliver X to school at 8.30am,
b. the father will collect X from school at 12 noon,
c. the father shall delivery X to school on Thursday at 8.30am and
d. each Monday that X is with his father, the father deliver him to school at 8.30am.
Minute of Orders Sought by Respondent Father
The Father filed Response material on 24th March 2016. He sought the following Orders:
1. That the Application in a Case filed on 8 March 2016 be dismissed.
2. That the mother be and is hereby restrained from enrolling the children, X, born (omitted) 2013 and Y, born (omitted) 2015, in any child care or program, pre-school, early learning centre or school without the prior express written consent of the father, with such consent not to be unreasonably withheld, or Order of the Court.
3. That unless otherwise expressly agreed in writing by both parties to the contrary, the children X, born (omitted) 2013 and Y born (omitted) 2015, shall attend pre-school and public schools for their primary and secondary education.
4. That the mother pay the father’s costs of and incidental to these proceedings.
Submissions on behalf of Applicant Mother
The Applicant Mother filed written submissions on 20th April 2016. Those submissions were as follows:
1) The mother is seeking that the child, X, born (omitted) 2013 (“X”) be allowed to continue in the (omitted) School System and transfer from the PTP Introductory Program to Cycle 1. The father is opposed to that and is seeking that X be removed from that system and placed into an “ordinary” pre-school.
2) All the evidence suggests that X has been progressing well under the (omitted) School (for example Annexure A to the mother’s Affidavit filed 8 March 2016). The mother has been practicing the (omitted) School with X for the last two years. The recommendation from his teachers at the (omitted) School is that he is ready to transition from the PTP Program into Cycle 1 (see Annexure “A” and “B” to mother’s Affidavit filed 8 March 2016). Whilst the school fees are substantial the mother has been and proposes to continue to pay those fees.
3) It is submitted that there is no proper reason put forward by the father why X should discontinue with that schooling system. It is the mother’s intention (see paragraph 16 of her Affidavit filed 6 April 2016) that whilst X continues to develop well within the (omitted) School that he continue to be educated in that way. The mother seeks that the X be allowed to continue whilst she considers it to be for his benefit.
4) Alternatively, it is submitted that at least in the interim X, remain in the (omitted) system, and that the issue about whether X should or should not continue in the (omitted) School and/or if the mother should have sole parental responsibility for the children’s education be determined as part of the final hearing on 2 and 3 November 2016. A change now may hinder X from re-entering the (omitted) School, which from a practical perspective may prevent the issue being considered at a final hearing.
5) It is submitted that on the father’s evidence, the father was not opposed to X commencing at the (omitted) School commenting “That it sounded ok’, although he did have some reservations, (see paragraph 6(3) of the father’s Affidavit) and the father was informed of X’s acceptance into the PTP at the school on 3 January 2016 and he, “did not have a problem with X attending” (Paragraph 6(6) of father’s Affidavit). It is apparent that the father is now objecting to the school but his reasons are limited and are primarily based on that he will lose 3.5 hours of time with X pursuant to the existing Interim Orders which provide for two 24 hour periods each week. The father’s reasoning is probably best illustrated by his email to the mother (Attachment E to the father’s Affidavit) where he states, “For this reason I would be seeking extra time if we were to move forward with this”.
6) It seems that the father has also sought to raise arguments on:
a) The Mother did not tell him of the change.
It is submitted that the mother informed the father of the enrolment and of the transition from PTP to Cycle 1 as soon as it was confirmed by the school. It was not until 15 February 2016 that the mother learnt that Cycle 1 occurred each morning, Monday to Friday (see Annexure C to the mother’s Affidavit filed 8 March 2016). The mother informed the father of this information on 18 February 2016 (Attachment D to the father’s Affidavit).
b) A criticism of the system of the school.
Details of the school’s methodology can be seen from Annexure B to the mother’s Affidavit filed 8 March 2016.
The father has not provided any evidence except his own personal views, which is contrary to his own evidence where he was accepting of the (omitted) School for at least the PTP Program and suggests that X could change from his current school to the (omitted) school in (omitted). It is submitted that his suggestion for that is because the (omitted) school hours are more limited and that will not impact upon his actual physical time with X. Accordingly, it is submitted that the father cannot maintain that he has an objection to the actual principles and processes of the school.
c) That X is not toilet trained and the school is not able to cater for that.
The mother’s evidence is that X is partially toilet trained and expects to be fully trained prior to July 2017 (see paragraph 7 of the mother’s Affidavit filed 6 April 2016). In any event, the school has indicated that there is some flexibility with delaying the commencement for a couple of weeks to allow that to happen.
d) X is not three years old.
The father’s proposition seems to be based upon “expert advice” he received from what the mother says is a friend of the father. It is submitted that that person has not provided any evidence or report and it is only the father’s reporting of what he asserts he was told. Apart from the assertions having no evidenciary [sic] value it also fails to address the differences between what might be regarded as ordinary school and the (omitted) School and the father has not provided any evidence of what the ordinary school system entails. He has provided no evidence of what school he proposes, what the times are or what impact they may have on X’s time with either parent.
In any event, X will turn three in (omitted) 2016 and it is submitted by the father asserting that X is not ready (because he is only going to be 2 years and 11 months old) is not a proper reason.
7) Cycle 1 involves 5 mornings per week and whilst the father is seeking to prevent that so he doesn’t lose “his time” of 3.5 hours of time with X, it provides the father with an opportunity to participate in X’s schooling and development.
8) The mother in her Application had not sought any Orders in relation to Y. The father is seeking Orders about Y. The mother’s evidence is that she does not propose to enrol Y into the (omitted) School System pending the final hearing and it is submitted that the issue about Y’s (and X’s) long-term schooling, be determined at a that time. Until then, X should be allowed to continue within his current schooling system.
9) In the event that X is to advance to Cycle 1, the mother’s application also seeks to vary the handover arrangements to provide for the handovers to occur at school, on the basis that will be the least disruptive to X and easier for both the father and mother.
Submissions on behalf of Respondent Father
The Respondent Father filed written submissions on 4th May 2016. Those submissions were as follows:
1) In August 2015, without the father’s knowledge or prior consent, the mother placed X, born (omitted) 2013 (“X”), on the waiting list of the (omitted) School, (omitted). At that time there were proceedings before this Court in relation to parenting issues for X, commenced on 12 June 2015, and parentage testing for Y, born (omitted) 2015 (“Y”). At no time during lengthy negotiations did the mother divulge that she had acted unilaterally and placed X on such waiting list. It beggars belief that the mother would withhold that information in such circumstances, dismissive of the presumption at law of the parties having equal shared parental responsibility for the child.
2) Sadly, this was not the first time the mother had made unilateral decisions in relation to the two children. Your Honour will recall that in February 2015, after the father had X in his full time care for 43 consecutive days and nights, the mother unilaterally reduced the father's time with X to just daily care 2 days per week. Your Honour will also recall that the mother refused to acknowledge the father as the father of Y, even objecting to the father's application for parentage testing orders, and unilaterally naming the child.
3) On 3 January 2016 the mother advised the father (Annexure A of father’s affidavit filed 24 March 2016) that she was taking X to the (omitted) Program (“PTP”) for 2 hours each Thursday morning. The father requested to attend a session (Annexure B of father’s affidavit filed 24 March 2016). The mother verbally denied the father’s request. A later request directly to the School was successful. The mother did not advise the father of any intent or expectation that X’s attendance at the PTP meant that he was “in the system” for commencement in Cycle 1 and onwards for his entire primary school education.
4) In a letter from the (omitted) School to the mother, dated 8 February 2016 (Annexure B mother’s affidavit filed 8 March 2016) the (omitted) School offered X a place in their Cycle 1 program. The letter requested that the mother advise the school, no later than 18 February 2016 if she was accepting the offer. On 18 February 2016, the mother advised the father by email (Annexure D father’s affidavit filed 24 March 2016) of the offer of a place for X. It is not known if the mother had already accepted the offer. The father was shocked and angered to receive this information. He had not been consulted and had never consented to X commencing his primary education at the (omitted) School.
5) The School’s offer of a place and their deeming X as ready to progress from the PTP to the Cycle 1 program was made after X had attended only one, 2 hour session in the PTP. The father expresses his doubts as to the credibility of the School’s assessment.
6) The mother is now seeking the Court’s approval to commence X in the (omitted) School's Cycle 1 program of 5 mornings per week, commencing on 21 July 2016. X will be 2 years and 11 months on the commencement date.
7) On 18 March 2016 the father emailed the mother (Annexure F, father’s affidavit filed 24th March 2016) offering to discuss a compromise option; being the (omitted) program at the (omitted) Primary School. Children commence at an older age for 2 mornings a week, for 3 years. The children then move into the mainstream Year 1 at the (omitted) Primary School. The mother did not respond.
8) Since the Interim Orders of 20 October 2015, the father and the children have enjoyed the stability of specified times together and the opportunity to foster loving bonds with each other and with the father’s extended family. This is viewed as especially important during the children’s formative years.
9) X is with his father on 2 days and 2 overnights (Saturday or Sunday and Wednesday) per week. Time with Y partially overlaps that of X. If X commences in the Cycle 1 program of 5 mornings per week, X and his father will lose their Wednesday mornings together. This is significant because X is active in the mornings and sleeps for around 2 hours in the afternoon. The father would also be expected to take X to school by 8:30am after his overnight stays. Currently the drop off time is 9am and at about half the distance away.
10) It is submitted that it would not be in X’s best interests to commence schooling at such a young age, especially as he already has to cope with splitting his time between his parents and their homes. Also, he is not well progressed in his toilet training and the Cycle 1 program requires the children to be fully toilet trained. Accordingly the father seeks that X not attend the Cycle 1 program and instead commence at a mainstream pre-school when he is 4 and a half years old, in line with Department of Education requirements. Both parents are available to care full time for X and Y and so there is no urgency to place the children in early schooling.
11) The father rejects that the mother is in any way qualified to decide whether the (omitted) method is appropriate for X. In the Submissions filed on her behalf, the mother states (at para 2) that she “has been practising the (omitted) system with X for the last 2 years”. The father has not seen or heard any evidence to back this claim. She certainly had not raised it with the father. The mother also asserts (at para 3) that X be allowed to continue in the (omitted) system “whilst she considers it to be of benefit.” She also seeks (at para 4) to be granted “sole parental responsibility for the children’s education” at the Final Hearing in November 2016. There is currently no application before the Court by the mother for her to have sole parental responsibility for the children's education.
12) The father asserts that there is absolutely no justification for allowing the mother to have sole parental responsibility for the children’s education. The father considers the children’s education to be extremely important. He has demonstrated a very strong commitment to co-parenting the children and is resolved that they receive as good an education as possible. He proposes that they attend a mainstream Government pre-school and primary school at a location agreed to by both parents. Their secondary education would be determined after assessing their skills, needs and interests.
13) The father does not consent to X or Y attending any sessions at the (omitted) School, if it is intended or there is any expectation that by doing so, the children will progress through additional Cycles at the School. If that is the mother’s intention then X should immediately be taken out of the School.
14) In paragraph 18 of the mother's affidavit, filed 8 March 2015, the mother referred to her desire to take the children to “visit a friend in July 2016 for 3 weeks.” The father responded to that reference in paragraph 6(18) of his affidavit, filed 24 March 2016. On 21 March 2016 the father caused a letter on this issue to be forwarded to the mother's representative (copy of which is Annexure “A” to the mother's affidavit, filed 6 April 2016). No response was ever received to such letter, and it appears the mother is not now pressing for such trip.
Consideration and disposition
In a long-running case that concerned a trust of quite small proportions, which ultimately ended in the High Court, at the commencement of their joint judgment in Byrnes v Kendle, Heydon & Crennan JJ described the matter before them as “lamentable and ill-starred litigation.”[4]
[4] Byrnes v Kendle (2011) 243 CLR 253 at [90].
The same description is but one of many that should apply to the current, on-going dispute that borders, respectfully, on an episode of the theatre of the absurd. I say this for this reason: it defies common sense, let alone logic, how a Court can decide, on an interim basis and with precious little evidence before it, when a particular child should, or is ready to, progress to a certain level or kind of school. This is especially the case where, as here, there are two “school issues”: the first is the exquisitely delicate issue of a transfer of X from the (omitted) Program (PTP) to (omitted) Cycle 1 Early Learning Program (I hope the poor child does not have to say these names regularly).[5] The second is the more straight-forward contest arising out of the Father not wishing the children to attend (omitted) schools at all but rather simply to attend the local primary school – whenever they arrive at their respective school ages.
[5] Formally, although it is not part of these reasons, I note that during the trial, the Father gave evidence (which was not contradicted) that the (omitted) school system in Canberra only provides education up until the end of primary school. See Transcript (2nd November 2016) p.54.
In many ways, I am somewhat sorry for these very young children. On the one hand, the parents are clearly very capable and loving of the children, and more generally, they seem to co-parent reasonably well. On the other hand, in certain, discrete areas, there are issues that seem more philosophically founded and which provide the bases for opposition between the parents, such as education.
One judgment has already been delivered in the matter – on 11th September 2015. On that occasion I expressed my deep concern about the nature and level of conflict. At that stage, X, who is sometimes called X, was aged 2; while his even younger sister, Y, was a tender 3 months. Clearly, all parts of the lament and concerns expressed on that occasion have counted for nought. It seems imperative that the parties continue to fight and spend money on their lawyers rather than channel their energies into positive parenting for their young children who are caught in the cross-fire of the occasionally puerile contests between the sometimes belligerent parents who have philosophical differences in relation to educational matters.
Unfortunately however, such is the harrowing pettiness and puerility of the contests these parties engage in from time to time, the more perverse and trivial are the issues to be determined. Education is important. Sometimes however education too early, or too intense which prevents little children being little children, can border on the oppressive. It seems to me that the pressure exerted by parents on children at such a young age can, ultimately, be quite counter-productive and may even be unsuitable for the particular child in question. Doubtless, like the cartoon character Bristow, the child (X) will be required to commence “brain surgery for beginners” quite soon.
I make no comment on the usual lack of compliance with the Rules of Court in relation to certain, relevant details in the affidavits filed by the parties, albeit that such complaint is regularly made.
It remains only to comment on or refer to such judicial precedent as there is.
In the Full Court decision of Re G: Children’s Schooling, there was discussion of various matters. The Full Court (Nicholson CJ, Kay & Brown JJ) said, firstly in relation to appeals in relation to such matters, by reference to Kirby J’s well known comments about appeals in family law matters that there should not be an “overly critical, or pernickety, analysis” of the review of a first instance decision (at [25]):[6]
In approaching the appeal, we are mindful of the circumscribed role of this Court when hearing an appeal from a discretionary judgment.
[6] Re G: Children’s Schooling (2000) 155 FLR 459; (2000) 26 Fam LR 143. The comments of Kirby J are from AMS v AIF (1999) 199 CLR 160 at [150].
Next, commencing at [65] and following, the Full Court noted that there was no presumption in favour of the preference or choice of the primary residential parent (the Mother in the current case). The Court is also to take into account any wishes/views of the children, and otherwise to have due regard to the statutory considerations relevant or applicable to the factual scenario presented to the Court.
Curiously, in the Mother’s written submissions (par.3) she contended that X be permitted to remain at the (omitted) pre-school at least until or while “the Mother considers it to be for his benefit.” It was not explained by what criteria the Mother would conduct such an assessment. It suggests (I do not and cannot put it any higher) that there is at least some flexibility in the Mother’s thinking about the utility or otherwise of her proposal that the child, still at such a tender age, should attend such a school.
Accepting that the Court is faced here, as it usually is in interim hearings, with much “he said – she said” assertions, I simply note that the Father contends that the Mother did not consult him about enrolment of X in the (omitted) system.
Finally, by way of general observation, in my view:
(a)comparing schools or other educational institutions is odious and essentially counter-productive, especially in circumstances, such as the present, where there are very young children involved. Their very young ages makes it even more problematic about the utility or appropriateness to evaluate what is best for the child or children in question. Their personalities and talents at such young ages remain still to be fully developed. Educational assessment, unless done by relevant expert(s), must necessarily be more educated guesswork supplemented by personal preference of one or other parent;
(b)to make an assessment of one school (or school system) over another necessarily is to engage in a process of choice by a parent. More often than not, absent some very specific reason for a particular school that offers a program that is particularly directed to the needs of a particular child, invariably involves a simple contest between the preferences of one parent against the preferences of the other parent. Strictly speaking, it is not a “legal issue”; it is more a philosophical choice between preferences. Given the educational systems available in this country, absent the kinds of considerations to which I have already referred, it cannot be said with utter authority that one school is better than another. Invariably it becomes a question essentially of degree only;
(c)perhaps more relevantly, to choose a highly specialised school or system, such as (omitted), requires (in my view) a more formal and detailed level of evidence that is not [currently] before the Court and why (other than the Mother’s personal preference) it best suits the child or children here. Further, by effectively ceding to the Mother absolute authority or responsibility to decide what is educationally best for the child/children, could be seen as effectively rewarding her intransigence for not negotiating with the Father about schools for the children. Again I stress that, absent relevant evidence (which is not before the Court about why (omitted) is best for X), the Court cannot make any properly informed decision about how or why such a school (or school system) would best suit him, and similarly why or how it would be better for him than a government-run school that is geographically more convenient to both parents;
(d)in short, there is a dearth of relevant evidence before the Court regarding the particular school and school system proposed by the Mother. In such circumstances, it remains very much a case of “he said – she said”, which leaves the Court with very few options other than to leave the child X in his current pre-school but with no other enrolment or change until there is a final hearing. The parents are clearly capable adults and should consider alternatives other than litigation to “work through” their relatively few parenting issues. Moreover, the Court, particularly in the absence of independent or other relevant evidence (as opposed to mere or simple “preference”), should be very slow and very careful, in effect, not to reward what might otherwise be a form of obstinacy by one parent rather than to insist that two adults, the parents of the children in question, resolve their philosophical differences in relation to major long-term issues in relation to the children by other means. The Court (and others) will wait with more than passing interest to see what (if any) evidence is provided at the final hearing in relation to matters of schooling, and other things.
Doing the best that the Court can in the current climate of discord and sometimes less than co-operative parenting, which obviously may not augur well for some longer-term parenting issues (in which case the lawyers better get ready, as should the parents and their bank accounts), and noting that there is the certainty of a full trial later in the year, in my view, it is in the best interests of the child (X), pursuant to s.60CA of the Act, that the following order is made:
a)On the basis that the Mother pays all fees and expenses, X shall continue only in the PTP program and shall not do or be enrolled in anything else, pending a final hearing.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 9 August 2017
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