Bardot and Benjamin

[2013] FCCA 1024

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARDOT & BENJAMIN [2013] FCCA 1024

Catchwords:
FAMILY LAW – Specific issues order – education – bullying at current school – travel considerations.

Legislation:  
Family Law Act 1975, ss.60B, 60CA, 60CC, 60CD, 62G, 65DAA & 117.

Goode & Goode (2006) 206 FLR 212
MRR v GR (2010) 240 CLR 461
Re R and R (2000) 155 FLR 29
Harrison and Woollard (1995) 126 FLR 159
In Marriage of Doyle (1992) 106 FLR 125
Re G (2000) 155 FLR 459

Applicant: MS BARDOT

Respondent: MR BENJAMIN

File Number: SYC 998 of 2007

Judgment of: Chief Judge Pascoe

Hearing date: 31 July 2013

Date of Last Submission: 31 July 2013

Delivered at: Sydney

Delivered on: 28 August 2013

REPRESENTATION

Counsel for the Applicant: Mr Trevor Tockar

Solicitors for the Applicant: Clinch Long Letherbarrow Lawyers

Counsel for the Respondent: Ms Suzanne Christie

Solicitors for the Respondent: Delaney Lawyers

THE COURT ORDERS THAT:

1. The child [X] (‘[X]’) born [in] 2001 attend [A] school as from Term 4 2013 and thereafter until she completes her secondary schooling.

2. Mr Benjamin (the ‘Father’) do all acts and execute all documents required to put Order (1) into effect.

3. Order 20.1 dated 26 November 2008 be varied as follows:

   “20.1 that the husband pay 67.23 percent and the wife pay 32.77 percent of private school fees and related school expenses and school uniforms referable to the attendance of the child [Y] at [S] Grammar School and the attendance of the child [X] at [W] until the end of Term 3 2013 and at [A] School from Term 4 2013 until completion of each of their secondary school.”

THE COURT NOTES THAT:

A.    The parties have agreed between themselves to arrange further counselling sessions between [X] and Mr L.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 998 of 2007

MS BARDOT

Applicant

And

MR BENJAMIN

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant Mother, Ms Bardot, originally appeared before Federal Magistrate Sexton (as she then was) in this matter seeking parenting orders to change [X]’s (‘[X]’) current school from [W] School to [A]. The Respondent Father, Mr Benjamin, opposes changing [X]’s current schooling arrangements. Final hearing in the matter was conducted before me on 31 July 2013.

2. [X]’s parents were married [in] 1998 and separated in January 2006. There were two children of this relationship, namely [Y], born [in] 1999, (‘the brother’) and [X], born [in] 2001.

3. The Father has since re-partnered, and lives with his new partner,

   
   

   Ms C, and her daughter from a previous relationship.

4. The Father lives in [omitted] and the Mother some three kilometres away in [omitted].

5. Both [Y] and [X] live primarily with the Mother and spend time with the Father on every Wednesday night and on the Friday, Saturday and Sunday of alternate weekends. The children also spend one half of each of the school holidays with their father. These arrangements are in accordance with the Final Orders made by Justice O’Ryan of the Family Court of Australia on 26 November 2008.

6. Currently, [X] attends [W] School located in [omitted], about 10 minutes drive from the Father’s home and five minutes from the Mother’s home.

7. It is common ground between the parties that when first considering which school [X] was to attend the parties made prospective applications to both [W] and [A]. Both [W] and [A] offered [X] a placement and the parties selected [W] as the preferred school. In 2007 [X] commenced Kindergarten at [W].

8. Between 2005 and 2008 both parties continued to defer a placement in [A] for [X]. However, in 2008 the Father alleges that he cancelled [X]’s placement due to commence in 2010 but the Mother, without his knowledge or consent, continued to renew the deferrals.

9. On 11 September 2012 [X] attended a trial day at [A] and was subsequently offered a placement commencing in Year 6 in 2013. The Father alleges the he was not made aware of any of post-2008 deferrals or the trial day attendance.

10. According to the Mother a Registrar at [A] has confirmed that the school has placed [X]’s acceptance on hold pending the Orders of this Court. In a letter received by the Mother on 23 July 2013 the school has agreed [X] commence there in Year 7 2014 but has also noted that accommodations could be made if she wished to commence in Year 6 2013 for the remainder of the year.

11. It should also be noted that if [X] is to be allowed to change schools, [W] requires a term’s notice of the intention to change.

Issues in Dispute

1. Simply put, the main issues in dispute between the parties are whether or not [X] is experiencing bullying at her present school and whether or not such bullying (if it is occurring) is systematic, and impacting on [X]’s physical and/or psychological welfare.

2. If the above questions are answered in the positive then the issue for the Court becomes whether or not such bullying means it is in [X]’s best interests to change school.

3. Another perhaps less central issue is whether [X] is likely to experience similar bullying at [A] due to her inherent vulnerabilities and if so, how these vulnerabilities can be mitigated. A further issue is whether distance to school will become a problem.

Submissions and Evidence

1. In considering this matter, I have had regard to each of the documents referred to in the course of the proceedings and to the submissions expertly put by counsel. Before outlining the relevant submissions, I note that in this case there are two parents who obviously love their children very much and are actively involved in their lives. The issue for the Court to decide arises simply because of a failure by the parties to agree on the best way to deal with problems experienced by [X] at her current school.

2. Both parties filed extensive affidavits with the Court (in excess of a hundred pages each). It should be noted that although I have considered all the matters raised in this affidavit material, I do not intend to recanvas every submission made. Affidavits of this length almost inevitably contain extraneous material.

3. It was submitted by the Mother that [X] has experienced and continues to experience ‘very real difficulties’ at her current school, [W]. The Mother submitted that at [W], [X] has been subjected to ongoing bullying particularly in the form of exclusion and that this bullying is having a substantial negative effect on [X]’s wellbeing. Given this bullying, the Mother submitted that it was in [X]’s best interests to be allowed to change schools and to attend [A]. The Mother was at pains to stress to the Court that the philosophy, culture, amenities, opportunities and comprehensive bullying strategies employed by [A] make it desirable for [X] to move to that school. It was further suggested by the Mother that moving [X] to [A] would allow her to start with a ‘clean slate’.

4. In making these submissions the Mother adduced evidence that [X] has commented on occasion that ‘the girls in [her] year are so horrible. They are so mean to me and a lot of them are mean to each other.’[1] The Mother also gave evidence that [X] often is reluctant to go to school and when she comes home she ‘sobs uncontrollably’.

   [1] Affidavit of Ms B sworn 15 October 2012, [2].

5. It was the Mother’s evidence that although these issues had been raised with [W] and multiple conferences had been held with the junior school headmaster, school counsellor and class-room teach, the problems did not abate. I note with some disappointment that [W] does not seem to have dealt with the perpetrators of bullying and it is the victim who is leaving the school. No doubt this contributes to [X]’s stress and would not help overcome any vulnerabilities.

6. The Mother also gave evidence about [A]’s ‘No Bullying Policy’ and the assurances she had been given by the school’s Head Mistress. [A]’s Bullying Policy was annexed to the Mother’s Affidavit.

7. In response the Father submitted that the bullying claims made by the Mother had been exaggerated for her own purposes. It was the Father’s submission that while [X] had been the subject of bullying in the second half of 2012 the problem had been resolved by [W]. The Father further submitted that [X] is a sensitive girl with ‘pre-existing vulnerabilities’ that would ‘manifest’ themselves at any school she attended. Accordingly, the Father submitted that it was in [X]’s best interests to remain at her current school and continue to work on her vulnerabilities with the school counsellor. The Father submitted that it may also be desirable for [X] to see a child psychologist. It is the Father’s position that moving [X] at this stage only risks undoing the progress she has made at [W] in terms of resilience and coping strategies.

8. The Father also made additional submissions in respect of [A]’s distance from both the Applicant and Respondent’s homes. The Father submitted that the travel time required for [X] to attend [A] would have a substantial impact on her which the Mother had failed to provide adequate attention to.

9. In support of his position that Father gave evidence that [X]’s most recent school reports suggest that she is ‘actively and enthusiastically participating in class activities and discussions and is enjoying her lessons.’[2] The Court’s attention was also drawn, in the Father’s evidence, to the comments of [X]’s school teacher who stated:

   [X] is an enthusiastic student who enjoys participating in group work and oral presentations.[3]

   [2] Affidavit of Mr Benjamin sworn 26 July 2013, [25].

   [3] Ibid.

10. Further to this position the Father gave evidence that [X] has attended numerous sleepovers and social occasions with [W] girls and that she has two close friends at the school.

11. In response to the Mother’s submission on [A]’s bullying policy the Father adduced evidence of [W]’s ‘Harassment Policy’ and gave evidence that [W] has actively and successfully dealt with the allegations of [X] being bullied.[4] The Father also tendered evidence, which was marked Exhibit R1, that [W] had held a parent educational evening on the topic of ‘Building Resilience in Children’, hosted by the Director of the Sydney Child Psychology Centre.

    [4] Ibid, [48]-[49] and [55]-[56].

12. The Father’s also adduced evidence that the Mother’s application for [X] to attend [A] was made before the allegations of bullying arose. He claimed that [X] had been ‘coached’ by the Mother.

13. A Family Report in this matter was compiled by Mr L and released by Judge Altobelli on 22 July 2013. Mr L was not required for cross-examination by either party and so his report entered into evidence unchallenged.

14. According to Mr L, [X] expressed the view that she is ‘really sensitive’. This is a view with which Mr L concurred. Mr L also noted that [X] ‘consistently and unambiguously expressed’ the view that she wished to change schools and leave [W].

15. [X] expressed to Mr L that she almost daily had anticipatory feelings of anxiety when the school bell sounded for recess. She also explained that there is always present a fear upon entering the school playground of ‘what is going to happen today?’ According to Mr L’s report [X] describes the playground at [W] as a ‘war-zone’ involving shifting alliances that add to her feelings of anxiety and uncertainty.

16. It was Mr L’s opinion that [X] has experience bullying at [W] in the form of exclusion. According to Mr L up until this point [X] has been shielded from the negative effects of bullying by family support. However, Mr L observed that if this bullying was to continue unabated, [X] is at risk of developing ‘a clinical mood disorder’ such as depression or anxiety. I take Mr L’s remarks very seriously.

17. Mr L pointed out that it was his experience that ‘more often than not, children who are bullied at school are more likely to have, to varying degrees, pre-existing vulnerabilities.’ Despite this, Mr L expressed the opinion that if [A] could be demonstrated to have a more organised and sensitive response to bullying, it would be in [X]’s best interests to change schools. 

18. Mr L also noted that [X], in the context of therapy, was beginning to acquire some skills and techniques for coping with school bullying which would serve her in any school environment.

Relevant Law

1. The legal principles which govern parenting proceedings are set out in Part VII of the Family Law Act 1975 (Cth) (‘the Act’). Section 60CA of the Act requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration.

2. Section 60B(1) enumerates the objects of Part VII as ensuring the best interest of children are met by:

   a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the children; and

   b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

3. In exercising my discretion as to what order is in [X]’s best interests, I must have regard to the factors outlined in s.60CC of the Act, as amended.

4. In considering the objects of Part VII of the Act it is necessary to also have regard to the principles underlying those objectives and the legislative pathways outlined in various Full Court decisions including Goode & Goode (2006) 206 FLR 212 and the High Court decision in MRR v GR (2010) 240 CLR 461.

The presumption of equal shared parental responsibility

1. The issues in this case are restricted to the narrow topic of whether it is in the best interests of [X] to change from her current school of [W].

2. There is no evidence to suggest that [X] would not continue to benefit from a meaningful relationship with both parents on either party’s proposed orders. Nor are there any issues concerning the need to protect [X] from family violence arising from the present application.

Section 60CC

1. The relevant s.60CC(3) factors are as follows.

Expressed Views of the Children

1. The Court must take into account any view expressed by the child no matter how young or immature the child may be. Section 60CD(2) of the Family Law Act provides that the Court may inform itself of the views expressed by a child having regard to anything contained in a report given to the Court by a family consultant pursuant to s.62G(2).

2. When considering the wishes of a child the Full Court of the Family Court in Re R and R (2000) 155 FLR 29 at 37-41 cited with approval the comments of Fogarty and Kay JJ in Harrison and Woollard (1995) 126 FLR 159. In that case their Honours stated that (at 169):

   The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children. There can be little doubt that there has been a perceptible change in the approach to the wishes and feelings of children not merely in custody cases in this Court but across the wider spectrum of society generally.

3. In considering what weight should be given to the child’s wishes, the Court must take into account, inter alia, the strength and duration of their wishes, their basis, and the maturity of the child (see In Marriage of Doyle (1992) 106 FLR 125 at 173).

4. It is significant that Mr L noted that [X] has held the view that she wished to change schools ‘over a prolonged period’.[5] The Family Report writer also observed that in his opinion [X] is a ‘comparatively intelligent and articulate child’. It was conceded however that due to [X]’s age, she would be unlikely to be able to properly evaluate the respective merits of different school programs and polices.

   [5] Family Report in the matter of Benjamin & Bardot released by the Court 22 July 2013 at [26].

5. As mentioned above [X] unequivocally made the point that she did not wish to remain at [W] to Mr L. She also expressed the view that the playground felt like a ‘war-zone’ which made her anxious and often meant she was reluctant to attend school.

6. It should also be noted, that Mr L records [X] as having some positive experiences at her current school. These positive experiences relate to engagement with organised group activities such as swimming and hockey. Both Mr L and the Father also point out that [X] is doing very well academically.

7. According to the Mother’s evidence, [X] has also stated to her that ‘I hate [W] so much I can’t take it anymore. I hate everybody and I hate my teacher.’[6] These comments were made in Term 3 of 2012, when the bullying appeared to be at its highest point. It would appear that [X] now has a good relationship with her Year 6 teacher whom she cited as her favourite aspect of school in a recent report. However, in the same report [X] expressed the view that the playground was her least favourite part of school indicating that she was still experiencing some problems.

   [6] Affidavit of Ms Bardot sworn 26 July 2013, [17].

8. The Father submitted that these views expressed by [X] should be discounted when considering her best interests. According to the Father, [X] used terms like ‘war-zone’, when describing school to

   
   

   Mr L, at the coaching of the Mother. It was the Father’s evidence that terms such as the above ‘are not in [[X]’s] normal vocabulary.’[7] The Father also believes that [X] has ‘developed an unrealistic view of [A] and an expectation that by moving, all her social problems will disappear.’[8] Again this view, according to the Father, is the result of coaching by the Mother.

   [7] Affidavit of Mr Benjamin sworn 26 July 2013, [80].

   [8] Ibid, [90].

9. Helpfully, Mr L in his report picked up on these themes and offered his observations on the matter. Mr L noted that although he detected the Mother’s influence in some of [X]’s responses, it was Mr L’s view that [X] was able to articulate and consider her own views in an objective fashion. Mr L also noted:

   Additionally, the Family Consultant did not gain an impression that [X]’s views with regard to a potential change of school are substantially underpinned by a need to gain or maintained [sic] her mother’s attention. It is suggested therefore that it would be inappropriate to discount [X]’s views because of her age and developmental stage.[9]

   [9] Family Report in the matter of Benjamin & Bardot released by the Court 22 July 2013 at [26].

10. I accept Mr L’s unchallenged evidence in this respect and agree it would be inappropriate, given the above mentioned authorities to discount [X]’s views. I therefore have given weight to [X]’s expressed desire to change schools from [W].

The nature of the children’s relationship with each parent and other persons, including grandparents or other relatives

1. It was apparent that the child had a good relationship with both parents.

Likely effect of any changes, including separation from either parent or any other person

1. The parties raised the potential effects of changing [X]’s schooling arrangements. The Father argued that to date [X] has maintained high academic standards and is making therapeutic progress. He also pointed to [X]’s ‘pre-existing vulnerability’ and susceptibility to being easily hurt. According to the Father’s submission such vulnerabilities may result in similar problems manifesting in a new school and the move therefore would only risk jeopardising [X]’s progress thus far and her strong academic performances at [W].

2. The Father also pointed out that [X] does have a friendship group at [W], attends many social events and is close to Ms B her Year 6 teacher. It was the Father’s position that there is a possibility such positive experiences may not be replicated at [A].

3. It was the Father’s case that [X]’s best interests would be served by remaining at [W] and having therapy sessions to help build self-confidence.

1. The Mother did not directly respond to the risk of [X] experiencing similar problems at [A] but rather stressed the many good qualities of the school. The Mother noted an interview she had with [A]’s Junior School Headmistress, Ms R who commented:

   We have a support network of five comprising staff, teachers and students for bullying. At the beginning of each week if a child is being bullied, one of the support network sits with the child and maps out her week so she does not feel lost or alone.

   We have the ‘I Can Do It’ program directed at empowering girls and developing social skills, empathy and compassion. In this program, girls are empowered to stand up for themselves and for those they do not see as being treated appropriately.[10]

   [10] Affidavit of Ms Bardot sworn 26 July 2013, [38].

2. The Mother also noted comments made by [W]’s former Head of the Junior School to the effect that:

   There have been problems with the transition and the addition of another class. [X]’s is the first year 5 to have three classes and there have been problems.[11]

   [11] Ibid, [49].

3. To some extent these problems have been dealt with by [W] moving [X] to another class away from those girls with whom she was experiencing problems. However, the playground still represents an area of significant anxiety for [X] and the girls who bullied her are still at the school. There does not seem to be any evidence that the behaviours of these girls are being adequately dealt with either by the school or their parents. As I stated previously, it seems unfortunate that’s the victim should be the one who has to leave the school and not the perpetrators. In this regard the Mother points out that [A] represents a chance for [X] to start forming friendships again free from the experiences at [W].

4. I accept the Father’s evidence that it is in [X]’s best interests to continue working on her issues with a child psychologist. Clearly, developing resilience and coping strategies is in [X]’s best interests. However, I am not of the opinion that such a course diminishes the benefits of [X] also changing school. Rather, the two may be complementary, providing [X] with a fresh start and a supportive environment in which to continue developing her resilience strategies.

5. To some extent it is impossible to foresee what consequences a move from [W] to [A] will have on [X]’s academic performance. However, there is no evidence before me that such a move would have a negative impact on her studies. As the Mother submitted, [A] has a record of maintaining high academic standards. If the change of schools were to help alleviate some of [X]’s environmental distress then I cannot foresee any negative consequences in terms of academic performance.

Practical difficulty and expense

1. The Father raised several concerns about the distance between [A], his and the Mother’s homes. According to the Father, if the Court were to determine that [X] should change schools, the distance to [A] presents considerable practical difficulties. The father made the following observations in respect of distance:

   a)The commuting times between the Mother’s house and [A] are significantly longer than [W].

   b)With the longer commuting times mean it may not be possible for [X] to attend morning and afternoon extracurricular activities.

   c)[X] has in the past been reluctant to catch public transport and has unrealistic views on commuting.

2. It was the Father’s evidence that [X] will spend 150 minutes a day commuting to and from [A].[12]

   [12] Affidavit of Mr Benjamin sworn 26 July 2013, [95].

3. In response the Mother suggested that the travel time would be closer to 76 minutes a day. The Mother gave evidence that she had been advised by [A]’s Junior School Headmistress that:

   Many girls who attend Junior School travel from [locations omitted].[13]

   [13] Affidavit of Ms Bardot sworn 26 July 2013, [68].

4. The Mother also gave evidence that in Term 1 2013 [A] commenced the operation of a private bus service [omitted]. The Mother was also prepared to pick [X] up from school in her car where necessary or arrange for a family member to do so.  

5. Apart from recommending possible transport options, the Mother also gave evidence that after the birth of [Y] and [X] the parties had considered the [omitted] School. and [A] as viable options. The locations of each of these schools, according to the Mother, was not considered an important factor during the period of marriage.[14]

   [14]Ibid, [66].

6. According to the Full Court in Re G (2000) 155 FLR 459, at 484:

   Where a decision must be made by a Court in circumstances where parents are unable to agree as between two schools which are prima facie very satisfactory, we see advantages to the children attending a school which is closer to the children’s residence.

7. The Full Court’s reasoning for this position was that it is in ‘the child’s best interests that the resident parent should not be subject to more irksome and unnecessary additional restraints than such commitments already entail’ (at 484). Interestingly, in the present case it is actually the resident parent making an application for [X] to attend the less convenient school.

8. A further distinguishing factor is the fact that the position in Re G is premised on the notion that both schools ‘are prima facie very satisfactory.’ There is, of course, in the present case clear evidence that [W] may not be a satisfactory school for [X] to attend and a strongly expressed desire on her part, to change.

9. It was Mr L’s opinion that if it was found that it is in [X]’s best interests to change schools, then this would outweigh considerations of practicality. Indeed, the Father under cross-examination by Mr Tockar agreed that the best interests of [X]’s overall emotional wellbeing takes priority over considerations of distance.

10. In any case I do not think that distance is a serious issue or impracticality in the present case. As the Junior School Headmistress pointed out, children often travel distances of more than an hour each day to attend school in Sydney. It is also relevant here that the resident parent, and parent most likely to bear the burden of the additional distance, is in support of the move. For these reasons I do not place any significant weight on the considerations of practicability or expense.

Attitude to the child and the responsibility of parenthood demonstrated by each parent

1. During the hearing the Mother accused the Father of not being child focused. Rather, the Mother asserted that the Father’s attitude of ‘anywhere but [A]’, clearly expressed by the Father during cross-examination, is motivated by his anger towards the Mother.

2. For the Father’s part, he submitted that the Mother’s desire for [X] to move to [A] was premised on the Mother’s intention to eventually move to [omitted] and her desire to have her daughter attend her old school. The Father also submitted that the Mother, to these ends, encourages secrecy in [X] and has fostered a dependence upon the Mother by [X]. The Father gave evidence that [X] text messages the Mother seeking permission before telling the Father certain things relating to her schooling.

3. The Father also argued that the Mother cannot be serious in her allegations of school bullying towards [X] as she declined the [W]’s offer for school counselling in 2013. In further support of this claim the Father tendered a [W] ‘Building Resilience’ parent course invitation, which became Exhibit R1, which the Mother did not attend.

4. The Father also emphasised the Mother’s failure to inform him of [X]’s trial day at [A].

5. While the Mother freely admits that her behaviour in hiding certain information from the Father was regrettable, this is not a concern that is central to the issue at hand. The issue is clearly and simply, whether it is in [X]’s best interests to be allowed to change schools.

6. I do not wholly accept the Mother’s submission that the Father:

   has been so indignant about the process adopted by the mother in dealing with [A] that he has lost sight of the true issues and approached the matter as a contest between the mother and himself, rather than an exercise in determining what is in the best interests of [X].[15]

   [15] Applicant’s Summary of Argument filed in Court on 31 July 2013, [13].

7. However, I also do not accept the Father’s assertion that [X]’s main desire for changing is a desire to please the Mother or coaching by the Mother. It is quite clear from Mr L’s unchallenged report that [X] is expressing her own views.

8. Further, I note that the Father did not offer any detailed research or assessment of any alternative school – in fact he did nothing other than suggest names of local schools without comment or analysis. He had not offered any adverse comments in relation to [A] as an institution and admitted in cross-examination that he has made no attempt to visit the school or made any determined inquiries.

9. I accept the Mother’s evidence that she has researched [A] comprehensively and that she believes [X] will be better off there. The fact that the Mother herself attended [A] is not a reason why her daughter should not attend and it seems to me perfectly normal for a mother to have a desire (which may be outweighed by other factors) for her daughter to attend her old school.

Whether it is preferable to make orders that will least likely lead to the institution of future proceedings

1. In her proposed Orders, the Mother suggested that she be responsible for any fees at [A] beyond the fees at [W]. I did not make such a provision in the Orders, and I note that the Father did not seek such an order. The difference in school fees is not great and I believe it is better for [X] and the parties to reduce the prospects of conflict about what the difference in fees might be between [A] and [W].

Any other fact or circumstance relevant to the Court’s consideration

1. There remains the issue of whether or not [A] maintains a better approach to bullying than does [W]. Mr L expressed the view that it would be in [X]’s best interests to change schools to [A] if it could be demonstrated that [A] had a more ‘organised and sensitive response to bullying’. However, Mr L did not feel qualified to comment on whether or not this was the case in fact. Given this finding it was only natural that both parties devoted much of their attention to the issue of whether [A] or [W] had the more comprehensive approach to bullying.

2. The Father, in his affidavit sworn 26 July 2013, annexed copies of both the [W] and [A] school Anti-Bullying Policies under the heading ‘L’. The Mother also annexed [A]’s Anti-Bullying Policy to her affidavit also sworn 26 July 2013 under the heading ‘J’.

3. From this annexed material it was possible to discern that both schools include comprehensive definitions of bullying and incorporate anti-bullying material in their respective student planners. On its face [W]’s approach appears to be more aspirational and stated in broad policy terms. [A], on the other hand, has a more specific policy which designates specific roles to those charged with investigating and resolving bullying complaints. [A] also has a clear and well articulated anti-cyber bullying policy which [W] appears not to have in place.

4. Perhaps the most persuasive difference was [A]’s stated aim of promoting a ‘culture characterised by caring relationships and enhanced self-esteem’. While [W]’s policy included the aim of developing a ‘culture of inclusiveness and care’, it would seem that [A]’s focus on enhancing self-esteem is on the face of it better tailored to [X]’s needs.

5. It was also of concern that [W] seemed to have only a draft policy and that this has been the case for some time. Given the importance of bullying and the well documented damage caused by bullying this did not give me confidence that the school as a whole saw this as a major issue. I am surprised that the Government Body at [W] does not seem to record a proper anti-bullying policy as a priority at least to the extent that non-action is such an indicator. By contrast, [A] at least had comprehensive policies in place.

6. I must however qualify my findings in relation to the respective anti-bullying policies by pointing out that there was little evidence other than the actual policies themselves. The Mother gave some evidence that she had been given assurances by [A]’s Head Mistress and the Father gave evidence of [W]’s implementation of its policy in regard to the prior bullying [X] had complained of. I have previously commented on the fact that it is disappointing to say the least that the victim of bullying is the one who feels compelled to leave the school. Given the paucity of evidence I do not base my decision on the findings under this factor. Rather, it is just one more consideration to be weighed along side the other s.60CC considerations when determining what is in [X]’s best interests.

Parental Responsibility

1. With respect to other facts and circumstances I turn to and incorporate sections 61DA and 65DAA.

2. As indicated above, the application in this case was restricted to the narrow issue of [X]’s schooling arrangements. Neither party wished to change [X]’s living arrangements. Furthermore, no evidence was given to displace the presumption that it is in [X]’s best interests for her parents to continue to have equal shared parental responsibility. I therefore do not propose to alter the living and time arrangements made in the Orders of 26 November 2008. Such arrangements have proven reasonably practicable between the parties and I do not believe the decision I have reached as to [X]’s schooling will significantly change, if at all, these arrangements.

Costs

1. In their respective initiating application and response both parties sought an order of the Court that the other party pay their costs in this application.

2. Neither party pursued this application at the hearing. Nor were any submissions made as to why the Court should deviate from the usual position that each party bear his or her own costs (s.117(1)). I do not intend to make any decision in respect of costs. Rather, I leave it open for the parties, within the usual 28 day period, to make further submissions in respect of costs if they see fit.

Conclusion

1. Ms Christie in her final submission suggested that if the Applicant was to be successful there needed to be evidence that the severity of bullying suffered by [X] warranted a change.

2. There is no doubt that [X] has been bullied, that she has expressed a strong desire to change schools and according to Mr L there are potentially serious psychological consequences for [X] if nothing is done.

3. The weight of the evidence shows clearly that it is in [X]’s best interests to be given the opportunity to change schools.

4. The Father for his part did not offer to the Court any viable alternative to [A]. Nor did he make any submissions as to why [A] would not be an appropriate school for [X] to attend. Instead he restricted his submissions to the possible adverse effects of [X] leaving her current school. In my view these considerations are outweighed by the distress of the child and the possible long term adverse consequences for her health.

5. It is important that [X] make the change in a positive way, hopefully with the support of both her parents and with on-going counselling assistance from Mr L. She can made the change in Term 4 of this year as was recommended by the Junior School Headmistress of [A], particularly as it seems [X] desire is for the change to take place sooner rather than later.

6. The Mother’s application is successful.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Chief Judge Pascoe

Associate: 

Date:  28 August 2013