BABINGTON & BABINGTON
[2015] FCCA 339
•6 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BABINGTON & BABINGTON | [2015] FCCA 339 |
| Catchwords: FAMILY LAW – Application for parenting orders – parents agree on orders save as to long term issues on education – dispute over school – determination of issue based on parental responsibility. |
| Legislation: Family Law Act1975 (Cth), ss.60B, 60CC, 61DA |
| Beard & McCarthy [2009] FamCA 73 Friscioni & Friscioni [2010] FamCAFC 108 |
| Applicant: | MR BABINGTON |
| Respondent: | MS BABINGTON |
| File Number: | DGC 3330 of 2013 |
| Judgment of: | Judge O’Sullivan |
| Hearing dates: | 29 & 30 January 2015 |
| Date of Last Submission: | 30 January 2015 |
| Delivered at: | Dandenong |
| Delivered on: | 6 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Stanley |
| Solicitors for the Applicant: | Waters Lawyers |
| Counsel for the Respondent: | Ms Juneja |
| Solicitors for the Respondent: | Mepstead Lawyers |
ORDERS
The mother have sole parental responsibility for all educational decisions concerning the child, MS BABINGTON born
(omitted) 2004 (“the child”) and otherwise the mother and father have equal shared parental responsibility for all other long term decisions effecting the child.
That for the purposes of all educational issues in relation to the child, before making any decision on educational issues for the child the mother shall consult the father by email advising him in advance of any decisions proposed by her in respect of the child and considering any response before making a decision.
That the child live with the mother.
That the child spend time and communicate with the father as follows:
(a)
each alternate Wednesday from the conclusion of school (or
3.30 pm if a non-school day) until the commencement of school the following Monday (or 9.00 am if a non-school day).
(b)half of all school holiday period as agreed between the parties and failing such agreement for the child to spend time with the father for the first half of the school term holidays commencing at the conclusion of school on the last day of school term to 5.00 pm 7 consecutive days later and the second half of the long summer school holidays commencing at 10.00 am on the day that falls at the midpoint of the said holidays to be commenced of school the first term.
(c)during the Christmas festival as follows:
(i)
in 2015 and each odd numbered year thereafter from
4.00 pm Christmas Day until 6.00 pm Boxing Day;
(ii)
in 2016 and each even numbered year thereafter from
4.00 pm Christmas Eve until 4.00 pm Christmas Day.
(d)on the child’s birthday ((omitted)) as follows:
(i)from between 4.00 pm and 6.00 pm if a school days.
(ii)from 10.00 am until 2.00 pm if a non-school day.
(e)on Father’s Day from 4.00 pm on the Saturday proceeding Father’s Day until the commencement of school the Monday following Father’s Day.
(f)such and other times as agreed between the parties.
That the child spend additional time with the mother as follows:
(a)during the Christmas festival:
(i)
in 2015 and each odd numbered year thereafter from
4.00 pm Christmas Eve until 4.00 pm Christmas Day;
(ii)in 2016 and each even year thereafter from 4.00 pm on Christmas Day until 4.00 pm Boxing Day.
(b)on the child’s birthday as follows:
(i)from 6.00 pm if a school day;
(ii)from 2.00 pm on a non-school day.
(c)on Mother’s Day from 4.00 pm on the Saturday preceding Mother’s Day to the commencement of school the following Monday.
(d)such further and other times as agreed between the parties.
That both parties be at liberty to communicate with the child via mobile telephone at reasonable times and both parties ensure that the child’s phone is able to take such calls.
That both parties enrol, attend and complete a post separation parenting course and provide a certificate of completion to the solicitor for the other party.
That in the event that changeover cannot take place at the child’s school, the parties collect and deliver the child at the (omitted) Shopping Centre.
That both parties be at liberty to attend school events and receive school notices ordinarily provided to or attended by parents.
That each party notify the other as soon as practicable of any illness, injury or condition sustained by the child which requires medical attention and provide to the other party details of such illness, injury, condition and treatment including details of the medical practitioner.
That both parties, their servants and agents be and are hereby restrained from denigrating the other party in the presence of hearing of the child or from permitting any other person from doing so.
That both parties do all such things necessary for the child to obtain a passport.
That in the event that either party intend to travel internationally with the child, that the party travelling provide to the other parent the following information not less than 4 weeks prior to the departure:
a)a detailed itinerary;
b)contact details for the child during the travel period.
That all extant applications be otherwise dismissed and the proceedings be removed from the Pending Cases List.
Pursuant to s 65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and these particulars are included in these orders.
AND THE COURT NOTES:
The parties will encourage and facilitate the child’s extra-curricular activities including by delivering and collecting the child from such activities.
IT IS NOTED that publication of this judgment under the pseudonym Babington & Babington is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT DANDENONG |
DGC 3330 of 2013
| MR BABINGTON |
Applicant
And
| MS BABINGTON |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
“Schooling is a decision for parents rather than a court. Parents have equal shared parental responsibility until otherwise ordered and that responsibility brings with it all of the decisions required of parents. The emphasis in Part VII of the Act is on parents working out these decisions in a consultative way because they know best their children’s needs and how to best promote their development.
A court should be reluctant to intervene unless the parents or either of them, lose sight of the focus of those developmental needs.A parent in that case, might be more concerned with their own needs, including a desire to continue the battle.”[1][1] Beard & McCarthy [2009] FamCA 73 at [87]
In these proceedings, the applicant, Mr Babington (‘the father’), filed an application for property and parenting orders under the Family Law Act1975 (Cth) (‘the Act’) on 21 November 2013. The respondent to that application, Ms Babington (‘the mother’), filed her response on 28 January 2014.
The father is 42 years of age, lives in (omitted) and works in his own (omitted) business. The mother is 47 years of age, lives in (omitted) and works for Centrelink. The parties married in 1991 and separated in 2013. There was a divorce order made on 10 September 2014. There are four children of the parties’ relationship: W, Y, Z and X. The youngest child, X, is the only child under 18. X was born (omitted) 2004 (‘the child’) and is the child the subject of the parties’ parenting applications.
The father’s application came before the Court for the first time on
3 February 2014. Both parties were represented and there were interim orders made by consent. The proceedings returned to Court on
27 March 2014, after a conference pursuant to section 11F of the Act. The family consultant who conducted that conference gave evidence and was cross-examined.[2] There were then further interim orders made by consent. The parties attended a conciliation conference on 11 April 2014. The proceedings came back before the Court on 29 May 2014 and there were further interim orders made by consent.
[2] See transcript of s.11F report
On 2 September 2014, the matter returned to Court. The parties reached final consent orders in relation to property and those orders were made by the Court. The remaining dispute between the parties over parenting orders for the child was listed for trial on 29 January 2015. There were, inter alia, orders and directions made for trial including an order pursuant to section 62G(2) of the Act for the preparation of a family report.
When the matter returned to Court on 29 January 2015, the father was represented by Mr Stanley of Counsel. The mother was represented by Ms Juneja of Counsel. Counsel for the parties requested the matter be stood down. Later that day Counsel returned to Court and advised the parties had reached agreement on all matters save for which school the child should attend. The agreement of the parties, that the Court was advised of, was embodied in a minute of proposed final orders which was marked as exhibit A1 which stated:
“1.That the husband and wife have equal shared parental responsibility for the child, MS BABINGTON born (omitted) 2004 save as to issues as to X’s education.
2.That X live with the wife.
3.That X spend time and communicate with the husband as follows:
(a)each alternate Wednesday from the conclusion of school (or 3.30 pm if a non-school day) until the commencement of school the following Monday (or 9.00 am if a non-school day).
(b)half of all school holiday period as agreed between the parties and failing such agreement for the child to spend time with the father for the first half of the school term holidays commencing at the conclusion of school on the last day of school term to 5.00 pm 7 consecutive days later and the second half of the long summer school holidays commencing at 10.00 am on the day that falls at the midpoint of the said holidays to be commenced of school the first term.
(c) during the Christmas festival as follows:
(i) in 2015 and each odd numbered year thereafter from 4.00 pm Christmas Day until 6.00 pm Boxing Day;
(ii) in 2016 and each even numbered year thereafter from 4.00 pm Christmas Eve until 4.00 pm Christmas Day.
(d) on X’s birthday ((omitted)) as follows:
(i) from between 4.00 pm and 6.00 pm if a school days.
(i) from 10.00 am until 2.000 pm if a non-school day.
(e)on Father’s Day from 4.00 pm on the Saturday proceeding Father’s Day until the commencement of school the Monday following Father’s Day.
(f)such and other times as agreed between the parties.
4.That X spend additional time with the wife as follows:
(a) during the Christmas festival:
(i) in 2015 and each odd numbered year thereafter from 4.00 pm Christmas Eve until 4.00 pm Christmas Day;
(ii) in 2016 and each even year thereafter from 4.00 pm on Christmas Day until 4.00 pm Boxing Day.
(b) on X’s birthday as follows:
(i) from 6.00 pm if a school day;
(ii) from 2.00 pm on a non-school day.
(c)on Mother’s Day from 4.00 pm on the Saturday preceding Mother’s Day to the commencement of school the following Monday.
(d)such further and other times as agreed between the parties.
5.That both parties be at liberty to communicate with X via mobile telephone at reasonable times and both parties ensure that X’s phone is able to take such calls.
6.That both parties enrol, attend and complete a post separation parenting course and provide a certificate of completion to the solicitor for the other party.
7.That in the event that changeover cannot take place at X’s school, the parties collect and deliver X at the (omitted) Shopping Centre.
8.That both parties be at liberty to attend school events and receive school notices ordinarily provided to or attended by parents.
9.That each party notify the other as soon as practicable of any illness, injury or condition sustained by X which requires medical attention and provide to the other party details of such illness, injury, condition and treatment including details of the medical practitioner.
10.That both parties, their servants and agents be and are hereby restrained from denigrating the other party in the presence of hearing of X.
11.That both parties do all such things necessary for X to obtain a passport.
12.That in the event that either party intend to travel internationally with X, that the party travelling provide to the other parent the following information not less than 4 weeks prior to the departure:
(i)a detailed itinerary;
(ii)contact details for the child during the travel period.
13All parenting applications, save as they relate to where X attends school be dismissed.
14.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 and these particulars are included in these orders.
AND THE COURT NOTES:
A.The parties will encourage and facilitate X’s extra-curricular activities including by delivering and collecting X from such activities.”
The Court was advised the remaining issue, that is, the issue of which school the child should attend, could not be compromised and a decision was required. The parties indicated the material that they relied on for that purpose and agreed on the witnesses that would be required for cross-examination.
Counsel for the father advised the Court he relied on the following material:
·initiating application filed 21 November 2013;[3]
·affidavit sworn 20 November 2013 and filed 21 November 2013;[4]
·affidavit filed 17 March 2014;[5]
·further affidavit filed 7 January 2015;[6]
·affidavit of Ms N filed 7 January 2015;[7] and
·affidavit of Ms R filed 7 January 2015.[8]
[3] Exhibit A2
[4] Exhibit A2
[5] Exhibit A3
[6] Exhibit A4
[7] Exhibit A5
[8] Exhibit A6
Counsel for the mother advised the Court she relied on the following material:
·response filed 28 January 2014;[9]
·affidavit filed on 28 January 2014;[10]
·further affidavit filed 14 January 2015;[11] and
·affidavit of Ms K filed 14 January 2015.[12]
[9] Exhibit R1
[10] Exhibit R1
[11] Exhibit R2
[12] Exhibit R3
The parties, their witnesses and the report writer were called to give evidence and were cross-examined. At the end of the evidence Counsel for, each of the parties made submissions in light of the evidence and the Court reserved its decision.
Given the issue remaining before the Court (and that the parties presented a proposed agreement on equal shared parental responsibility) the following the comments of Cronin J seemed apt. In the decision of Garzelli & Lewis [2014] FamCA 55, His Honour said (albeit in the context of an interim parenting dispute) that:
“16. The irony is that each party is proposing to seek the court make orders that they have equal shared parental responsibility for the child. If that expression is not treated as just meaningless words, two observations may be contemplated. First, section 60B of the Act refers to one of the objects of Part VII to be that parents share the parental duties and responsibilities of the care and development of their child. Secondly, if an order for equal shared parental responsibility is made, section 65DAC of the Act provides that if the exercise of that parental responsibility involves making a decision about a major long term issue in relation to the child – and I interpolate here that such an issue would be where the child goes to school – the order is taken to require the decision to be made jointly by those persons and that means that they are required to consult in relation to the decision to be made and to make a genuine effort to come to a joint decision about the issue.
17. It would seem that not only have the parties stumbled at the very first hurdle and have no mechanism for sorting out the decision making dispute but they have seen the resorting to the court as their only solution.”
Prior to the commencement of the hearing Counsel for each of the parties advised the Court that their clients’ position on how the issue of schooling was to be resolved was on the basis that one of their respective clients should have, in relation to the issue of educational issues, sole parental responsibility for the child’s education. I now turn to the evidence given by the parties at the hearing on 30 January 2015.
The father gave evidence and was cross-examined. The father adopted the affidavits referred to earlier. In his affidavit, filed 4 January 2015, the father had deposed inter alia:
“49.Concerns re change of school: I am concerned at the effect of X changing schools to (omitted). I feel that what X’s views about changing schools are not her own. I accept she has said this to Ms F (and Ms. C) but this was as a result of Ms Babington’s influenced (sic) and intimidated by Ms Babington.
50.This view is particularly in view of the fact that she has told me on both the occasions that she was in my care that she did not want to go to (omitted). On (omitted) 2014 we were on our way to see my current girl-friend (Ms Y whom I met at the Family Court ((omitted) 2013). She has a daughter named A (aged 11 years) and she and X get on well together.
51. As we were driving, we were chatting, when out of the blue she said “Dad, I’m scared about going to (omitted) – I want to stay at (omitted)”. She said she had a dream about going there and she seemed serious and looked really worried.
52.I changed the topic and did not push this topic any further. The rest of day was fine and the topic was not mentioned again until the next time she was in my care. On or about Christmas Day, we were again driving to (omitted) and chatting about the New Year.
53.Because I wanted to see how the child felt about schools, especially after her voluntarily disclosing to me about her dream and how she felt, I asked her about (omitted). She said “Dad, I still want to stay at (omitted)”.
54. She was definitely serious but at the same time relieved because now that the topic had been raised by her, she could talk about it. I did not pursue the topic again nor did I ask her anything further especially as the child is an anxious and sensitive child. I really wanted us to enjoy our time together, even though I was sorely tempted to let her talk more about how she felt.
55. I do not feel that changing X’s school from (omitted) to (omitted) is in the best interests and does not seem to be what the child wants; the views she has expressed in the list before Ms F are not her own. The two schools are academically of very different standards, as is schown by the two school rankings from the (omitted) School Ranking and the ACARA School Rankings which both show the significant difference between the two schools performances.
56. There is now produced and shown to me marked (sic) B/2 and B/3 respectively the two comparisons between the schools.
57. I am very concerned at the recommendations made by Ms F in her report, for the reasons outlined above. I am also concerned that the views that are supposedly X’s are not really hers for the reasons outlined above. I am also concerned that the handwritten ‘list’ that X has supposedly compiled is not her feelings at all for the reasons outlined.
58. Finally, I really feel that I did not (sic) a fair opportunity to be able to express myself but instead had to answer questions based on what Ms Babington had told Ms F. I do feel that Ms F has been impartial particularly(sic) where she has mentioned her own views about pre-selected topics such (sic) abortion, same sex relationships and assumptions about my feelings towards the break-up of the relationships.”
In answer to questions in cross-examination, the father acknowledged the two eldest children had not attended (omitted) College (that the child attends) and that one of the parties older children had been requested to leave that school.
The father acknowledged the mother had been concerned about the school being suitable for the child since 2013 and the child had since seen a therapist as a result of those issues. The father acknowledged that the child had said to the Court experts she wanted to change schools. The father acknowledged he did not and would not communicate with the mother about educational issues for the child. The father admitted, in cross-examination, he had spoken with the child about what was in the family report after it was released.
The father’s evidence made clear he did not appreciate there could be anything wrong with this.
The father’s evidence in cross-examination made plain he had placed great weight on what he said were the child’s concerns about changing schools that he said had been conveyed to him (and others) by the child since the release of the report. However, the father did seem to acknowledge the child could say different things to different people if she did not want to disappoint them and that the child was aware he did not want her to change schools.
The father’s evidence made clear he had made no enquiries about other schools for the child, including the school raised by the mother.
The father’s evidence also made clear that his mother regularly picked up the child from school and cared for her until he came home from work. However the father’s evidence made clear that he was actively involved in assisting the child with her homework. Finally, the father estimated the additional travel time, in the event the child did change school to that preferred by the mother, would be around an extra
20 minutes for him. The father gave evidence that he had not decided where he would be living once his current home was sold.
Ms Babington is the wife of the parties’ eldest son, W. Ms Babington is also the daughter of the (omitted) of the (omitted), which is closely affiliated with the (omitted) College that the child currently attends and the school the father prefers. Ms Babington gave evidence and was cross-examined. Ms Babington adopted her affidavit, referred to earlier. In that affidavit Ms Babington had deposed inter alia:
“11. My relationship with X: I have known X since and prior to this family breakdown X and I would have time together very frequently including shopping, movies (sic) nights, cooking lessons, craft days, school drop off and pick-ups, etc.
12. Now however our relationship has been changed by the very limited access to see her, since we (myself and the rest of her family), do not have any contact with X when she is with Ms Babington. This has limited and sadly affected our relationship.
13. I fear that any further reduction in the time X spends with her father will limit this even more as Ms Babington has now cut herself off from all our family (and this means X is also affected by her decision) including X's Grandma, her aunt, cousins, church friends, school friends and myself. This also extends now to my son B (X’s nephew), whom she only see (sic) when she is spending time with her father.
14. Change of school: X has told me she wants to become a (omitted) when she grows up, and knowing how well she is doing in school and the care the teachers take to educate her I could not see a better local school for her to attend.
15. The results that X is currently achieving show the commitment that the school has to each of its students. I also studied at (omitted) College from Grade 6 to Grade 9 and then to the main campus at (omitted) (for my VCE which was not available at (omitted)). I know the teachers are all dedicated to prepare the children to succeed, that they care about their students and not just their career.
16. Further this is the only school X has attended in her life and therefore I believe a change of school would have a negative impact on her, not only socially but physically as she is very sensitive child and the current environment in the school she attends is more nurturing as opposed to a public school where I feel she would be overwhelmed by this experience.
17. The change of school would not only have the shock of new friends, teachers and environment but also the added confrontation of issues like teen pregnancy, drugs and violence which are not present in her current school, but are common in so many public schools.
18. Also X has been placed in a higher grade where she excels despite only being 10 years of age. I believe that if she were to be transferred to a public school she would have to repeat 2 years of her education.”
Ms Babington’s evidence in cross-examination was that she had attended the child’s current school but it was 10 years ago.
Ms Babington’s evidence in cross-examination about what she said the child’s views on changing schools was, in my view, clearly partisan, and should be treated accordingly and given little weight.
Ms N was also called to give evidence on behalf of the father. Ms N adopted her affidavit referred to earlier and was cross-examined. In her affidavit, Ms N had deposed, amongst others that:
“12. X is a bit like Mr Babington – quiet and reserved and more likely to avoid confrontation by trying to please everyone rather than upsetting anyone by speaking out. I have seen how fond she is of Mr Babington and how happy she is to see her brothers and extended family when in his care.
13. As previously mentioned, X attends the same school as my children. It is a private school with very high standards. X had been there since Prep and I believe that it was Ms Babington that actually chose this school for X. I know this because Ms Babington was working at the (omitted) at the time.
14. The school’s Principal (Mr. M) is of (nationality omitted) origin and has been Principal for about the last 12 years or so. While he has firm views about discipline I would not describe them as offensive or extreme. I would not describe him as a harsh man. I have no problems with the school and my children are happy and thriving at this school.
15. The Principal is popular with the children and the parents. His wife also works full-time at the school as (position omitted). Ms Babington used to get on well with him and it is only in the last year or so that she has not got on with him.
16. I am aware that Ms Babington wants X to change school to (omitted) Secondary and I have friends whose children attend there. It is a state run school and its academic goals or performance is a lot lower than (omitted).”
Ms N’s evidence left the clear impression she had an entrenched and partisan view of the dispute between the parties. Ms N’s evidence was given in what appeared, even allowing for the difficulties in giving evidence, a defensive if not belligerent tone and was of no assistance in determining the matter before the Court.
The mother gave evidence and was cross-examined. The mother adopted her affidavits referred to earlier. In her most recent affidavit, the mother had deposed inter alia:
“27. That in relation to paragraph 32, I deny manipulating or coercing X to prepare a list for the Family Report writer. I did however state to X that the appointment with the Family Report writer was an opportunity for her to talk about anything in her life that she would like to change or had concerns about. I did not at any time see the list before she met with Ms F.
28. In relation to paragraph 33, the timetable presented by Ms N in the affidavit affirmed on 2nd January, 2015 is a copy of the grade 6 timetable which X is adheres (sic) to at school. It states there is no break listed for Fridays and only one break on each of the remaining days. There does not appear to be a lunch time or recess on X’s timetable. This is supported by X’s comments to Ms A in her report of 31st January, 2014 at paragraph 1 where X states that “there was no recess and that the school was entirely academically driven to reflect this. In the family report, X is quoted at paragraph 17 of 26 noting “I try to play, there’s very little playtime. Most schools (normal schools) have one hour of play a day, a half hour recess and half hour at lunch. At (omitted) College we get 20 minutes at the most. All the rest is spent in the class working….”
29. Further to the matters outlined in the above paragraph, I am concerned that the discipline at X’s current school is oppressive. X informed me in about July 2014, she was sent outside to complete homework as punishment. This was in the middle of winter. I complained to the school and X was distressed and was advised that “with hindsight’. The teacher should have asked the children to sit in another classroom instead. Now produced and shown to me and marked with the letters “B2” is the email dated 31st July, 2014.
30. That I reiterate my concern at the volume of homework X is required to complete during the week and on holidays. It appears to me in reading X’s school diary back in 2013, that she is feeling under pressure. I note the Applicant’s numerous comments in the diary explaining as to why X is not completing tasks and I also note his comment on 12th September, 2013 where the teacher, Ms A, apologises for any hurt she may have caused X yesterday. She writes “I am quite happy to allow X more time and her homework so that she does not feel “too much pressure”. Nevertheless, my observation is that the pressure on X has not been reduced and she remains stressed in relation to homework. Now produced and shown to me and marked with the letters “B3” is a true copy of the said school diary.
31. That my concerns regarding X’s current education were intensified when I found a note last Friday, 9th January, 2015 in X’s room from her school book while cleaning her room. The note appears to me to reflect indoctrination and includes the following “laws that do not reflect the word of God should be removed”. “Abortion should be Removed (sic).” Fight back against the gates of hell”. (sic) “Global warming hasn’t occurred in 18 years”. Now produced and shown to me and marked with the letters “B4” is the note found by me on 9th January, 2015.
32. That further to the above, I refer to the questionnaire completed by X at school as part of her (omitted) studies, entitled “Have you been deceived?” It asks children moral and ethical questions that, in my view are inappropriate for a 10 year old child to consider such as “It is right to abort a foetus?” true or false.” Homosexuality is not mentioned very much in the bible “true or false”. X told me that she felt bad when she got the answer to the questionnaire wrong and couldn’t understand why. Now produced and show (sic) to me and marked with the letters “B5” is the questionnaire “Have you been deceived?”
33. That in relation to paragraph 34, I state that X has made her views very clear regarding her feelings about this school.
34. That in relation to paragraphs 35 and 36, I state that X does socialise on occasion with children from other cultures.
35. That in relation to paragraph 37, I agree that X had a number of friends from different cultural backgrounds at her 10th birthday party.
36.In relation to paragraph 38, I state that X has told me a number of times that she does not like the principal at her school.
37. In relation to paragraph 39, I state that in my opinion, the Family Report writer, Ms F was professional and asked a broad range of questions that I understood were needed for her to understand my background and that of the Applicant. She did not, at any stage, share her personal opinion with me and although I was nervous in the early stages of the appointment, she was patient and gave me the opportunity to speak freely.
38. In relation to paragraphs 40 to 48 I am unable to comment on the Applicant’s commentation (sic) with Ms F.
39. In relation to paragraph 49, I disagree and state that X has had the opportunity to speak freely with 3 independent professional consultants and she has been clear and consistent in matters regarding her schooling and living arrangements.
40.In relation to paragraph 50 to 54 I am unable to comment on conversations that took place between the Applicant and X when I was not present. However, I find it highly unlikely that X would say that she did not want to attend (omitted) Secondary College. She has consistently requested that she change schools for the abovementioned reason.
41. In relation to paragraph 55, I state that X attended orientation day at (omitted) Secondary College on the 9th of December, 2014 in the event that this Honourable Court decides that it is in her best interests to change schools and she was excited to meet new children and take part in science experiments and sporting activities. She was not anxious or sensitive. I reiterate that X has constantly expressed her desire to change schools over the past 18 months to friends, family and to the Court appointed representatives.
42. In relation to paragraph 56, I agree that (omitted) College has a higher Naplan score than (school omitted), less students and more homework, to the detriment of sport, music, technology and art. X is a bright student and will achieve high grades whichever school she attends. It is my opinion that at (omitted) Secondary College will be able to balance school and life and X will receive the support she needs from other students and teachers who are part of the SEAL accelerated learning programme.
43.In relation to paragraph 58, it is my view that the Applicant has contempt for myself and court Orders. The interim Orders state that the Applicant is to collect X at the end of school every alternate Wednesday and drop X off to me or school on the following Monday at the commencement of school. Despite the Orders, the Applicant continues to query Orders and ignore changeover times for pick up and ignored requests concerning X’s health. Now produced and shown to me and marked with the letters “B6” is a copy of the SMS from December 2012 to December 2014. The Applicant refuses to facilitate phone contact with X despite my requests for him to do so by SMS.
44. That a result of the Applicant being unable to secure finance to purchase my interest in the property known as Property M as per the Orders of this Honourable Court of 2nd September, 2014, that the property has been placed on the market for sale and at this point in time. I am unaware if the Applicant has plans as to where he proposes to reside. I am settled in a well appointed residence in close proximity to the (omitted) Secondary College bus pick up point which is 2 doors away from my residence. X has her own room and is very settled.”
The mother’s evidence in cross-examination bore out her concerns about the suitability of the child’s current school by reference to, amongst other things, annexures B3, B4 and B5 to her most recent affidavit tendered as exhibit R2. Vigorous cross-examination of the mother not only failed to shake the genuineness of her concerns for the child at the current school but only served to underscore the basis for those.
In answer to questions in cross-examination, the mother’s evidence bore out the basis for her claims about the concerns she had with the child’s current school since 2013 and that these had not been addressed satisfactorily by the school as she saw it.
In evidence in cross-examination, the mother pointed to the material in particular in annexure B5 of her affidavit[13] as inappropriate. This was:
[13] Exhibit R2
“HAVE YOU BEEN DECEIVED…
MARK EACH STATEMENT TRUE OR FALSE.
1. Children should be taught what their rights are.
2.Its only right to abort a foetus if it is certain the child would be severely handicapped.
3. We must all work to abolish war and achieve world peace.
4.The real solution to our economic problems is a system which eliminates poverty on one hand and excessive profits on the other.
5.The best form of government is a democracy with freedom of religion.
6.Since we are created equal husbands and wives should have equal rights.
7.Mothers should be able to find fulfilling careers outside the home.
8.Pornography, drugs and sexual perversion are evil. However we must allow them to exist because we cannot legislate morality.
9. The death penalty is not a deterrent to crime.
10.Criminals are really the victims of the injustices of our society.
11.Homosexuality is not mentioned very much in the bible, and some people are born with homosexual tendencies.
12.It is not right to have bible reading in public schools because of the need for separation of church and state.
13.Moral conditions in our country are bad, but they have been just as bad during previous times in our history.
14.Laws should be made to prohibit false cults from teaching error.
15.It is the job of government to give a good education to all children.
16. A strong nation is built on strong local communities.
17.A child’s personality cannot be changed after the age of seven.
18.Primitive tribes in our world are just now emerging from the “stone age”.
19.A newspaper should report all the facts it gets, because the public has a right to know.
20.News reporting, like history writing can and should be done with an objective mind.
21. Alcoholism is a disease.
22.Television is harmful because of all the violence it shows to children.
23.The history of mankind is simply a continual repetition of itself.
24.There is not very much we can do about wickedness, because God predicted that wickedness would increase during the end times.
If you have marked any statements “TRUE” YOU HAVE BEEN DECIEVED!
[The more rights that are given to children, the more authority is taken from parents and given to governments to protect those rights. Soon parents become inferior servants to the “protective agencies” of a ruling elite.]
[Teach children what their rights are and you will promote a rebellion. Teach children what their responsibilities are, and you will promote a revival.]
ANSWERS TO THE TEST ON DECEPTION:
CHILDREN SHOULD BE TAUGHT WHAT THEIR PERSONAL RIGHTS ARE.
ANSWER: FALSE. The emphasis in educating a child should not be on personal rights but on God-given responsibilities.
Every child is born with a sin nature, and “Foolishness is bound in the heart of a child…” If you add to this a focus on personal rights, the result will be a reinforcing of wilfulness. An emphasis on personal rights is wrong at any age.
If you only teach people what their rights are, you will promote a rebellion; but if you teach them what their responsibilities are, you will promote a revival.
The present push to give children more rights is a destructive and deceptive strategy to transfer authority from parents to government. The more rights a child has, the more authority the government must have in order to protect those rights.
More and more, parents are becoming servants to the “protective agencies” of government. This is God’s judgment on Christian parents for not being alert soon enough to what is happening in the godless education of their sons and daughters. However, alert Christians who know how to use God’s weapons can turn the tide in our generation.”
The mother submitted annexure B5,[14] represented material that was not age appropriate nor did it raise appropriate ethical or moral dilemmas for children the child’s age as a further basis for her concerns about the school’s suitability. Whilst acknowledging the child’s achievements, the mother’s evidence in cross-examination simply served to reinforce her evidence she was confident the child, whilst being young for her peer group at whatever school she was to attend would continue to achieve academic success.
[14] Exhibit R2
The mother’s evidence was notable for the clear impression it left that not only was she proactive in raising issues on her daughter’s behalf but she was very involved in her school and extra-curricular activities, and particularly attuned to her daughter’s emotional, intellectual and psychological needs.
As has been referred to earlier in these reasons, a family report was ordered on 2 September 2014 and released to the parties on
11 December 2014.
The family report writer was called to give evidence and was cross-examined. Neither party suggested the report writer was not appropriately qualified or unable to offer an independent expert opinion on the remaining issue before the Court.
In the report, dated 11 December 2014, the parties’ material, the various interim orders, background to the proceedings, what was called current arrangements and the application and proposals of the parties were all considered.[15]
[15] See 1 – 34.
The report then considered the issues in dispute and relevantly for present purposes observed:
“38. Ms Babington expressed concern that Mr Babington does not communicate with her about X’s welfare and they are not able to reach joint decisions about such issues as secondary school. Ms Babington said inter alia that ‘He won’t communicate, he won’t tell me why X has gone to the doctor and got medication…she’s got a spasm in her neck and he won’t talk with me’.
39. In the interview for his report, Mr Babington did confirm that he is unwilling to communicate with Ms Babington ‘because it all gets turned around’. When I asked him to respond to Ms Babington’s concerns about X’s current school. Mr Babington said “I won’t communicate…because it will be turned around… I just want to get on with my life, but this is how she likes it. Payback drama!’
40. During the appointment for this report, Mr Babington presented as anxious and defensive at times, questioning the purpose of such enquiries as family history. While he apologised for his non-attendance at the first scheduled appointment, Mr Babington reiterated that ‘I just want to get this over and get on with my life’.
41. As noted in the Memorandum dated 27th March 2014, Mr Babington presented as less child focussed than Ms Babington, and seemed intent on presenting his views about X’s development that were actually at odds with the child’s own statements during her individual interview. For example, while X said that homework is ‘a lot’ and expressed ‘feeling scared’ if she was unable to complete the requirements, Mr Babington said a number of times, ‘she does it easily and has no trouble with it’.
42. In relation to friends at friends at school, X said inter alia that ‘I only have one friend… there is only two of us who are white out of a whole class of thirty-six.. I try to play with other people, but I can never fit in with them’. Mr Babington on the other hand, asserted that X ‘has lots of friends and she is very popular’.
43. During the observation for this report, Mr Babington was warm, engaging and focussed on X, who interacted enthusiastically with him and presents as having a strong and positive bond.
44. During the report appointment, Ms Babington presented as calm, rational and coherent. She was thoughtful about X’s needs and spoke in detail about her development. Ms Babington interacted warmly and competently with X, who was equally engaged and responsive. X also interacted positively with Ms K, who remained in the waiting area during the appointment.
45. X’s age, her development, her relationship with Mr and Ms Babington and significant others, as well as her wishes, are significant in this matter. X presents as an articulate but reserved young girl, who nevertheless spoke forthrightly about her wishes in the individual interview for this report.
…
48. X produced a handwritten list that she said was about the school issue. Reading aloud, X said inter alia that ‘I want to change schools. There’s too much homework… I have one night to complete what my friends in other schools have in one week … I only have one friend … here’s very little playtime … we get twenty minutes and all the rest of the time is spent in class working …our Principal thinks that we should not have fun … he is also a racist … he thinks that white people are lazy and all they do all day is surf. This is very offensive to the white people in the school, including me’.”
The report then went on to set out observations of the parties and the child,[16] before turning to evaluate the issues presented by the parties.[17] The report then turned to the remaining issue before the Court and observed:
“107. Given X’s clearly stated wishes and her age, it would be appropriate to consider a change of school with some seriousness.
108. X’s concerns about the differences in educational practices between (omitted) College and mainstream schools, while not to be evaluated here for their potential impact on learning and the overall experience of school for children, are nevertheless emotionally distressing for the child. It is of some concern that X conveys a sense of anxiety about meeting what seem to be unrealistic study expectations, distress about social isolation and distress that some of the school routines are punitive. X has stated these concerns in at least two professional contexts during 2014 – for the 11F report and for this report.
109. It is likely that X would adapt relatively well to a change of school, given her reported sociability and her overall capacity and noted for his report. With the unequivocal support of both parents, X would manage such a transition relatively well. She would need to know however, that Mr Babington particularly, is supportive of such a change.
110. (omitted) Secondary College’s offering of accelerated learning would provide X with the intellectual stimulation and academic extension that she clearly requires. The school environment would also expose X to diverse social opportunities as well as extracurricular activities.
111. On the basis of the factors noted above, X’s attendance at (omitted) Secondary College in 2015, is recommended.”
[16] At paragraphs 52 – 84.
[17] At paragraphs 85 – 106.
At paragraph 115, the report under the heading “Recommendations” provided the following recommendation:
“115.X attends (omitted) Secondary College in 2015.”
In the evidence before the Court, the report writer confirmed this remained her recommendation on the remaining issue before the Court.
In her evidence in cross-examination, the report writer made clear she was satisfied the child’s views (as presented to her) were considered.
The report writer’s evidence was notwithstanding that she acknowledged the child could tell different people different things, the child’s views should be given significant weight as those views were recorded by her.The report writer made clear in her evidence in cross-examination that she believed the child could continue to be securely involved with both families, her parents, with her faith and her current friendship groups and there were no real or practicable reasons why, if the child’s school was changed, this would not continue.
Importantly, the report writer’s cogent evidence was that she had considered all the issues associated with the possible change of school. The report writer’s evidence was in light of all those issues, that had “exercised [her] mind”, given the mother’s demonstrated competence, the child’s views, her demonstrated understanding, the earlier professional involvement and the child’s emotional distress, there should be a change of school.
In the decision of Hall & Hall (1979) FLC 90-713 at 78,713, the Full Court of the Family Court made certain observations of a general nature about the role of a family report and the evidence given by a witness such as the report writer, in this case.
I also bear in mind what the Full Court said in Friscioni & Friscioni [2010] FamCAFC 108 about the role of family reports, such as that prepared by the report writer in this case.
As indicated earlier, at the close of the evidence, each of the parties had an opportunity to make submissions. In final submissions before the Court, Counsel for the father submitted that the parties’ agreement[18] was a good outcome and the position of both parties on the remaining issue was “genuinely held”.
[18] Exhibit A1.
Counsel for the father submitted that the Court should be satisfied the father’s evidence was that he acknowledged the mother’s different view on the issue. It was submitted the Court should be satisfied the father’s view was based on holding dear the value of hard work and academic achievement.
It was submitted where the father produced documents showing NAPLAN results were superior for the child’s current school (where she had been since prep and was an ‘A’ grade student) why take the risk of changing school.
Counsel for the father acknowledged the evidence of each of the parents about the child’s views on changing school was contradictory and what the recommendations of the report writer was and remained, even in the face of cross-examination, that there should be a new start at a different school. Counsel for the father submitted that nonetheless the question could be reduced to the ‘known’ versus the ‘unknown’. Ultimately, it was submitted it was in the child’s best interest to remain at the current school.
Counsel for the mother, in final submissions, submitted the evidence on the child’s views, along with that given to both the section 11F family consultant and the report writer by the child was consistent. It was submitted it was in the child’s best interests there should be a change of school. It was submitted the father had ‘manipulated’ the child’s views he pointed to. It was submitted the concerns the father pointed to either could not be sustained on the evidence or those concerns would be the case regardless of the school the child attended.
It was also submitted that, in contrast to the father, the mother, who the report writer accepted had not interfered with the child’s clear views, had been proactive, had investigated both schools, had raised her concerns with the current school and communicated those to the father. Given this and the clear unshaken recommendations of the report writer, it was submitted the mother should have sole parental responsibility for the child’s education and it was in the child’s best interests she should have the opportunity to change schools.
In reply, Counsel for the father submitted given the matters referred to earlier, the mother’s preference for a change of school should not be preferred on the basis of a 10 year old complaining about homework and the teachers at her current school.
The leading authority on issues of schooling for children is the Full Court decision in Re G: Children’s Schooling (2000) FLC 93-025
(‘Re G: Children’s Schooling’). However, the orders the Court is asked to make are to make parenting orders and as such, this child’s best interest is the paramount consideration. The Court should also address the mandatory considerations set out in the Act, insofar as they would be relevant to such a discrete issue.
In terms of the applicable legal principles for that purpose, Eyton & Eyton & Ors (2013) FamCA 657 indicates that:
“31.Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
32.When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
33.When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
34.The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
35.However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.
36.In the event an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).
37.If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
38.The principles outlined above have been authoritatively examined in Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.”
In submissions, Counsel for the father referred to a number of decisions of the Family Court of Australia that address the issue of schooling. Counsel cited the Full Court decision referred to in Re G: Children’s Schooling (Supra), Counsel also referred the Court to Eden & Eden-Proust [2011] FamCAFC 138 and Bilz & Breugetran [2013] FamCA 578.
In that latter case, Austin J said, in relation to the issue of schooling:
“72. The issue about the child’s education has been a source of consternation for too long.
73.When the father commenced the proceedings in November 2012, he specifically sought interim orders binding the parties in relation to the school at which the child should be enrolled to attend from the commencement of the 2013 academic year.
74.On the first return date of the father’s Application, in December 2012, the Court listed the parties’ dispute “regarding the schooling issue” for discrete hearing in May 2013. When the proceedings were subsequently transferred to this Court on 25 January 2013, the interim hearing date before the Federal Magistrates Court was incidentally lost.
75.Notwithstanding her awareness of the unresolved dispute about the issue, two days before commencement of the 2013 academic year, the mother unilaterally decided to enrol the child at the school chosen by her. She at least notified the father of her belated decision and the father was able to be present on the child’s first day at school.
76. The mother wants the child to remain at her current (omitted) school, situated in reasonable proximity to her home. The mother alternately proposed in cross examination that it was feasible for the child to attend (omitted) School, which is close to her home. In final submissions, the mother alternatively proposed the (omitted) School, the virtues of which she had previously explained to the father in correspondence.
77. The father, however, wants the child withdrawn from her current school to attend a public school, but only after she completes the current academic year. The Family Consultant understood the father’s proposal to be that the child should repeat kindergarten in 2014, but that was not his formal proposal to the Court. Although he admitted he thought the child was perhaps too young to begin school this year, his formal proposal was always that the child should commence kindergarten in 2013, albeit at a public school.
78.The father proposed that the child attend (omitted) School (not to be confused with (omitted) School) at W, because that school is equidistant between the parties’ homes; a criteria considered important by the father. The father lives in an inner city suburb of (omitted) and the mother lives in the (omitted) region.
79.The Independent Children’s Lawyer abstained from proposing any order about which school the child should attend and simply proposed an order for the child to attend scripture classes if the parties were ordered to enrol the child at a public school. Somewhat unhelpfully, the Independent Children’s Lawyer confessed the countervailing features were evenly balanced and was unable to offer any recommendation or argument to resolve the dispute.
80.Despite an inability to advocate any particular position, the Independent Children’s Lawyer did advert to relevant authority on the topic from which principles may be distilled (see Re G (Children’s Schooling) [2000] FamCA 462; (2000) FLC 93-025; Eden & Eden-Proust [2011] FamCAFC 138).
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 Court 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]).”
His Honour went on to consider the evidence in the case before him on the issue and noted, at [107], it broadly addressed the statutory considerations in section 60CC(3)(d), (f), (g), (i), (l) and (m) of the Act, before noting no other consideration were submitted to be germane to the resolution of that issue.
In this case, in addition to the assistance from the authorities that I have just referred to, all of which have been considered, the Court has had the advantage of the expert evidence of the report writer. As has already been noted, all parties cross-examined the report writer, there were no qualifications to her report, nothing in these reasons thus far would make me believe that the information on which the report writer was working was wrong or that her conclusions were invalid. Accordingly the Court is entitled to place great weight on those recommendations.
Like in the case referred to at the beginning of these reasons,[19] there is, it would appear, a clash of ideologies between the parents, which appeared to have permeated the dispute on the remaining issue before the Court. The father says he is a practising member of the (omitted) Church, which runs the school called the (omitted) College.
[19] Beard & McCarthy [2009] FamCA 73
The mother was a member of that church and had agreed to the child attending the school. The mother no longer supports this and points to the concerns about the matters referred to earlier. The wife referred to, in particular, annexures B3, as well as B4 and B5[20] to her affidavit filed 14 January 2015.
[20] Exhibit R2
The mother’s concerns about the religious instruction and other teaching at the child’s current school were probed in detail in cross-examination. Whilst it is tempting to assume her objection to the child being instructed about the matters referred to in the exhibits was due to the end of the parties’ relationship and her decision to leave the church, I am satisfied the mother’s concerns were more sophisticated and more child focussed than that.
When the father was asked questions about documents such as annexure B5 provided to a 10 or 11 year old at the school, referred to earlier, he did not seem to think there was anything of concern that he otherwise could not explain. The evidence in this case is that the child has a close and loving relationship with both of her parents and enjoys good relationships with all members of her extended family. There is no evidence to suggest this will not continue.
Both parties claim support for their respective positions on schooling by reference to what they claimed were the child’s views. The father and his witnesses made various claims about the child’s views on possibly changing schooling and his Counsel pursued the obvious point in cross-examination of the mother and the report writer that the child’s stated views could change so as not to disappoint her audience at that time.
The Act requires the Court to consider any views expressed by the child concerned and any factors, which may affect the weight to be given to those views, such as the child’s maturity or level of understanding. The Act speaks of views rather than wishes. The latter is a more concrete concept, the former is addressed to perceptions and feelings.[21] In the context of matters under Part VII of the Act, the Court’s responsibility is to give proper and realistic weight to the views of the child in this case.
[21] See Explanatory Referendum to the Family Law Amendment (Shared Responsibility) Bill 2006 at paragraph 56.
The report writer’s evidence on this consideration has been set out earlier. The evidence of the independent expert (which I prefer over that of the partisan witnesses) was both considered and consistent.
I accept that those views, as stated to the report writer, unfiltered by the weight of awareness of the child at the time of any parental expectation in that audience should be given some real weight but that it is but one of the relevant considerations.
The parties have agreed it is not in the child’s best interests or reasonably practicable for the child to spend equal time with her parents. I agree. There is no respect or communication. I am not satisfied that either parent would support the other parent and their views in their respective households. Accordingly, the child would face and suffer considerable difficulties adjusting to each different household on an equal time basis. Instead, the parties agreed the child will live with the mother and spend what easily would be substantial and significant time with the father.
On the evidence, whichever parents’ choice of school is preferred, there is nothing to suggest it will impact adversely on the child and her relationship with either of her parents or significant others. There is, however, evidence of concerns in relation to the child’s needs, both intellectual, psychological, emotional and physical. In a decision cited as Reiner & Reiner [2009] FamCA 926, His Honour Cronin J had this to say in relation to emotional needs:
“245.Emotional needs are just as important in a child’s development as physical needs. The term “emotional needs” is vague and undefined. By it, the legislature’s intended to convey the importance of parents providing comfort when a child is hurt, frightened or distressed. It includes providing security against children being exposed to inappropriate adult conduct, language and concepts before they are mature enough to understand. It includes being responsive to bullying at school so that the child enjoys that environment and, amongst other things, ensuring television programs are age appropriate.”
In this case, in making the decision for the child, the Court has borne in mind that, on the evidence, there is no communication between the parents on the issue of education and no, it would appear, respect for the views of the other by either party. Issues to do with the child’s education, so that her best interests can be promoted, usually require the involvement of both parties. On the evidence, that is not going to happen for reasons due to, amongst other things, the attitudes of the parties themselves. That is sad for all involved. However something must be done that is more likely to promote the child’s best interests.
The father has been meeting the cost of the fees at the child’s school but was unable to provide details during the course of his evidence about, for example, basic things like the child’s teacher’s names when pressed. The mother, in contrast, has been actively involved in and has been consistently raising concerns on behalf of the child in an effort to alleviate the manifest distress, which I’m satisfied she says she has observed. The mother’s evidence, supported by that of the family report writer, lead to the conclusion that she is better placed to provide for the child’s emotional needs.
The father’s evidence about the assistance and guidance he provides the child in dealing with the challenges she has in coping with homework was impressive and has not been ignored. The father did have the support of his mother, the child’s paternal grandmother when he was not home and/or could not collect the child. However in terms of emotional needs for the child, I find that the mother is likely to take her responsibilities more seriously than that of the father. It is that last point which distinguishes the mother from the father.
There is nothing to suggest any practical difficulty, were the mother’s preference on schooling to be more likely to promote the child’s best interests. As is clear from the evidence of the report writer, whose evidence I accept, a combination of factors which, along with the above, are referrable to section 60CC(2)(a), (b) section 60CC(3)(a), (b), (d), (e), (f) and (i), all point to it being more likely to promote the child’s best interests to allow a change of school.
In terms of parental responsibility, section 61DA of the Act provides:
“(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
In this case, there is an irreconcilable difficulty or difference in relation to the issue of education of the child between the parties. There is, on the evidence, no communication between the parents on this issue and indeed, the evidence is the parents will not discuss it with each other.
On the evidence, it is apparent there will be an ongoing dispute and the child will be caught in the middle. As noted above section 61DA(4) provides:
“(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
The Full Court of the Family Court in Doherty & Doherty [2014] FamCAFC 20 concluded, at [42] that a “parenting order”, as defined in section 64B, can be made whereby:
“Parental responsibility for some long term issues may be shared while others may not and additionally, that parental responsibility for some issues might be shared equally while others are not shared equally or not shared at all.”
Given the above discussion, in my view, in light of my consideration of the relevant statutory provisions set out earlier in these reasons, I am satisfied the presumption is rebutted and it is not in the child’s best interests for the parents to have equal shared parental responsibility on the issue of education.
It is more likely to promote the child’s best interests for the mother to have sole parental responsibility for determining educational issues. The mother must, however, afford the father the opportunity to express his views beforehand and if, after that, they cannot agree, she will make the final decision regarding the child’s education.
Otherwise, the parties will have equal shared parental responsibility.[22]
[22] see Reiner & Reiner [2009] FamCA 926 where Cronin J made similar orders in relation to education.
I will, for those reasons, make orders in terms of exhibit A1, as amended by these reasons and as amended by the agreement of the parties this day. All extant applications will be otherwise dismissed.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge O’Sullivan
Associate:
Date: 19 February 2015
0
11
2