BATES & CHURCHILL
[2012] FMCAfam 1495
•20 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BATES & CHURCHILL | [2012] FMCAfam 1495 |
| FAMILY LAW – Parenting – dispute about whether a child of 5 ½ should be home schooled or should attend a state primary school – communication between the parents poor – benefit to the child of both parents having an opportunity to be involved in her education – order made that the child attend a state primary school. |
| Family Law Act 1975, s.60CC |
| Mazorski & Albright (2007) 37 Fam LR 518 Spencer & Spencer [2010] FMCAfam 640 Xiu & Hodges [2011] FamCA 419 |
| Applicant: | MR BATES |
| Respondent: | MS CHURCHILL |
| File Number: | NCC 1539 of 2012 |
| Judgment of: | Terry FM |
| Hearing date: | 20 December 2012 |
| Date of Last Submission: | 20 December 2012 |
| Delivered at: | Newcastle |
| Delivered on: | 20 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Weightman |
| Solicitors for the Applicant: | Tranter Lawyers |
| Counsel for the Respondent: | Mr Williamson |
| Solicitors for the Respondent: | Uther Webster & Evans |
ORDERS
By Consent, Orders, Notations and Declarations be made in terms of the document titled “A” dated 20 December 2012 filed herein and attached hereto.
Pursuant to Section 65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “B” attached hereto and these particulars are included in these Orders.
The parties shall do all acts and things necessary to enrol the child [X] born [in] 2007 in [W] Public School.
This matter is adjourned to 9.30am on 8 March 2013 for further consideration NOTING THAT the court hopes that the parties will engage in private mediation between now and the next adjourned date in an effort to resolve their dispute.
IT IS NOTED that publication of this judgment under the pseudonym Bates & Churchill is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1539 of 2012
| MR BATES |
Applicant
And
| MS CHURCHILL |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment were delivered orally. They have been corrected from the transcript, grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
I am required to decide a specific issue namely how [X], 5 ½, should be schooled next year.
[X] is currently enrolled at a Montessori school on the Central Coast. She attends two and a half days a week and she is in what is referred to as the 3 to 6 program. The school does not offer a primary school program and [X] can only remain at that school until the middle of next year.
The mother proposes that [X] complete the 3 to 6 program at the Montessori school and that she then home school her.
The mother said that depending on [X]’s progress she might home school her throughout her primary school years and even into her secondary school years.
The father proposes that from the beginning of 2013 [X] commence attending [W] Public School, a state primary school. He says that if [X] is going to attend this school it will be better for her to commence at the beginning of 2013 rather than in the middle of the year.
The Evidence
The parties’ evidence about this issue was contained in the affidavits they each filed on 7 December 2012. In addition each party gave some evidence in the witness box and they were each cross-examined.
Counsel for each party filed a case outline document and I have read those documents.
Background
The father is 36 and the mother 29. They met in Australia in 2002 and according to the mother lived together for a period of time in 2003.
The father is English and in 2003 he returned to the United Kingdom. However he came back to Australia in 2004 and the parties resumed cohabitation. [X], the parties only child, was born in [omitted] 2007.
In mid-2009 the family went to the United Kingdom but the parents separated not long after.
The separation was marked by high conflict and I am not going to go today into the different versions of events the parties give about what happened at that time. Suffice it to say that in August 2009 the mother returned to Australia with [X] and the father remained in the United Kingdom.
After the mother returned to Australia the father had regular Skype and video communication (as he described it) with [X], but he did not see her again face to face for almost three years.
In January 2012 the father returned to Australia with the intention of remaining here. He tried to make arrangements to see [X] but it was not until June 2012 that he was able to spend time with her, and this more or less coincided with the father deciding that negotiation was getting him nowhere and that his only option was to make an application to the court. After the father filed his application he was able to spend time with [X] on a couple of occasions for about 1 to 1 ½ hours with the mother and her family present.
On 22 August 2012 the father’s application came before me and I made orders which provided for [X] to spend 4 hours per week with the father unsupervised. I also ordered that the mother file and serve a response and affidavit in support.
On 17 September 2012 I conducting a defended interim hearing and I made orders that [X] live with the mother and that the parties have equal shared parental responsibility. I ordered that [X] spend time with the father on two Saturdays from 9.00am to 5.00pm and thereafter each weekend from 5.00 pm on Friday until 5.00pm on Saturday. I also made orders concerning [X] attending the father’s wedding and about time over the Christmas period.
On that same day, because the parties were in dispute about it, I listed for hearing today the discrete issue of how [X] should be schooled in the future.
I am told by both parties that since the September 2012 orders were made time has occurred in accordance with the orders and that the mother has agreed to [X] spending some additional time with the father on four occasions.
[X]
The information given to me about [X] suggests that she is an absolute delight. She is generally healthy; she has had a kidney problem in the past but aside from that she is healthy. If the reports in the material are anything to go by she is a bright little girl and I am sure that both parents love her deeply.
The mother said that [X] had had some adjustment difficulties since she commenced spending time with the father, but her evidence about that was not terribly specific. The father does not accept that this is the case and the mother has agreed to extra time on four occasions which makes me wonder whether any problems [X] may be having are terribly serious.
The schooling options
No evidence was given at the hearing about the comparative merits of home schooling on the one hand and education at a state school on the other. The mother attached some literature about home education to her affidavit but as her counsel conceded during submissions it is not literature in which any consideration is given to the advantages and disadvantages of the two kinds of education.
I accept unreservedly that both parents want [X] to have a good education and I do not consider that either of them would deliberately make a bad choice for her.
Although I cannot make a finding about the comparative benefits of the two forms of education there are obvious differences between them.
If [X] is educated at a state school she will be taught by trained school teachers. She will be educated with a group of other children of a similar age so she will have regular interaction with her peers, and with peers she likes and peers she does not like which is no bad means of learning what it is like to live in the world.
There will be somebody the parents can talk to about her progress and that person will be a third party who is objective, who is not emotionally involved with [X] and who can give the parents information about her progress and any problems she might be experiencing.
Home schooling on the other hand will be provided by the mother who is not a trained teacher. I accept that the mother is passionate about home schooling and has done a lot of research into it and that she believes that she is more than capable of delivering a good education to [X] but nevertheless home schooling, unless the parent happens to be a trained school teacher who is having some time off to have a family, is delivered by a non-trained teacher.
One of the advantages to a child of being home-schooled is that they are taught one on one. They are taught by someone who is sensitive to their particular needs and they are not at risk of having their needs lost sight of because they are part of a group, which can happen in the public education system.
The mother said that she intended to home school [X] using the New South Wales public school curriculum and if she does that then [X] should learn the same things as her peers even if she does not attend a state primary school.
There are differences in the two forms of education and I cannot make a finding about whether one is better than the other or whether one is more likely than the other to deliver a better outcome for [X]. This, I might add, differentiates the case before me from the case of Spencer & Spencer to which I was referred, because in that case there were expert witnesses, educators, who gave evidence about the different types of schooling.[1]
[1] Spencer & Spencer [2010]FMCAfam640
[X]’s best interests
Any orders I make about [X] must be orders which are determined by treating her best interests as the paramount consideration and S.60CC(2) and (3) of the Family Law Act sets out the matters to which I must have regard in order to determine her best interests. This case was commenced after 7 June 2012 so the version of S.60CC(2) and (3) which came into force on that day applies.
The primary considerations in s.60CC(2) are:
i)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
ii)the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
I am required by s.60CC (2A) to give greatest weight to s.60CC (2) (ii) but happily there was no suggestion in the material the parties filed in respect of the discrete issue that [X] was likely to be suffer physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence in the care of either parent.
The only relevant primary consideration is the benefit to the child of having a meaningful relationship with both of the child’s parents. That is very important because the objects and principles of the Family Law Act make it clear that children are entitled to have a relationship with both of their parents and entitled to have both of their parents involved in their life to the maximum extent possible consistent with their best interests. One parent cannot replace the other, and subject to children being kept safe the best outcomes for children occur if they have both parents involved in their lives.
Children have a meaningful relationship with a parent if they are loved and supported by that parent in good times and in bad, because children are not always a delight to know, they can be troublesome and they can get sick. If children are offered nurture and guidance by a parent, in other words if the children have the opportunity to develop a relationship with a parent which is significant, valuable and important to the children, then they have will have a meaningful relationship with that parent.[2]
[2] Mazorski & Albright (2007) 37FamLR 518
[X] has a meaningful relationship with her mother, her mother has been there for her for years, and she is developing a meaningful relationship with her father.
The father wishes to be fully involved in [X]’s life including in her education and if he is able to have an involvement in her education it will assist in him developing a meaningful relationship with [X].
I must also have regard to the additional considerations in S.60CC (3) and the first of these is any views of the child and the weight to be given to those views.
There was no suggestion that [X] had a view about which school she should attend or about whether she should be home schooled, and even if she did, she does not have the maturity to make that choice for herself.
That is another thing which differentiates this case from the case of Spencer[3] because in that case the children were older children with views, not that their views prevailed I might add.
[3] Spencer & Spencer (supra)
I must have regard to the nature of the relationship of the child with each of her parents.
The mother has always been [X]’s primary carer. She was her only carer in a physical sense between 2009 and 2012 and I accept that [X] and the mother have a close bond. The father however has a developing bond with [X].
The mother said that [X] had suffered some adjustment difficulties since commencing spending time with her father but she has offered extra time so I rather suspect that there is nothing to be terribly concerned about.
The next additional consideration is one of the new ones. It is the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child.
During submissions the mother’s counsel alluded to the fact that the father remained in the UK for three years after separation and did not physically spend time with [X], and certainly to that extent he did not take the opportunity to spend time with the child.
The father did not abdicate from the child’s life however. While in the UK the he had regular Skype communication, video communication as he described it, with her. There was nothing to suggest that at some point he decided that he did not want to have a relationship with [X] or take part in making decisions about her but had now suddenly decided to step back in and flex a bit of muscle over the schooling issue.
I must have regard to the likely effect of any change in [X]’s circumstances.
The father’s counsel pointed out that [X] was currently attending school two and a half days a week. She is attending a place outside the home which has a structured environment with a classroom and a playground and she is being taught by an unrelated adult. The father’s counsel submitted that [X] attending a state primary school with a similar setup would not result in her experiencing any great change.
There was nothing in the evidence to suggest that [X] had found the regime at her current school difficult to endure or that she was a child with particular problems who did not fit in with other children and who resisted going to school. From that perspective what the father is proposing does not represent much of a change for [X], except that she will not be attending a Montessori school in the future and they do have a particular philosophy, she will be attending a state school with a state curriculum, although, I might add, the mother said that she intended teach [X] using the state curriculum if she was home-schooled.
Home-schooling would represent a significant change for [X]. She would cease going out of the home each week to go to school and would be at home all day every day of the school week with her mother.
The mother intends to take [X] to some cultural events but it would become a situation where the school week was very much a mother-and-daughter world: no peers, or very few peers; mother and daughter together. In Spencer & Spencer Jarrett FM observed that in those circumstances a parent becomes
everything to [the child] – a parent, a disciplinarian, a teacher, and somebody with whom [she] is spending fun times as well. There [would be] essentially no break.[4]
[4] Spencer & Spencer (supra) @65
I cannot predict what the effect of that change would be. I cannot say that it would necessarily be bad, but it would be a significant change, and I cannot predict the effect of it.
If [X] is home-schooled the father’s capacity to be involved in her education will be almost non-existent. There will be no assemblies, no sports days, no parent-teacher nights. There will be no reader sent home that the father can read with her and then initial the box. He will not be able to pick her up and drop her off from school and have her friends see that this was her Dad.
The mother said that she would make an effort to keep the father involved with what was happening with [X]’s education but the parents have a poor relationship. It is marked by distrust and suspicion and poor communication, and that was very apparent as cross-examination of the mother progressed. I am not picking on the mother in saying that; I accept that there have been some very regrettable exchanges initiated by the father as well, but the reality is that the relationship is poor.
If [X] is home-schooled the opportunity for the father to be involved in her education will be pretty well non-existent, whereas if she attends a mainstream school that opportunity will be there.
The father gave evidence in his affidavit about the efforts he had already made to find out about [X]’s schooling and about his visits to see the headmaster of her current school, so there is every reason to suppose that involvement in [X]’s education is something that the father wants and intends to pursue in the future.
The next s.60CC (3) consideration is the practical difficulty and expense of a child spending time with and communicating with a parent but that is not relevant in relation to this discrete issue.
I must have regard to the capacity of each of the child’s parents and any other person to provide for the child, including her emotional and intellectual needs.
It is very clear, as much from what the parents are not saying as much as what they do say, that their daughter is a delight, and a lot of the credit for that has to go to the mother.
The mother was the only person there for [X] day-in and day-out for three years, and the fact that [X] has grown up to be the child that she is, a child the father obviously loves and is proud to call his daughter, a child who is having no problems at school, and who, by implication because nobody said otherwise, has good relationships with her friends, the fact that [X] has grown up to be that child is largely down to the mother.
It would be good in the future if the father was able to express some appreciation of that to the mother, because the mother deserves a huge pat on the back for that, and in that regard she has shown herself to be a very capable parent.
The mother wishes to provide for [X]’s intellectual needs in the future by home schooling her. I accept that the mother is passionate about home schooling and that she loves her daughter and would not deliberately put her at any risk of harm, but I cannot be certain about whether the mother does in fact have the capacity to adequately educate [X] at home.
The mother is not a trained teacher and she is quite emotionally involved with her daughter. Sometimes that emotional involvement can mean that a parent does not make the best decisions about their child. They do not have the input from an objective third party who might give them some guidance about what needs to be done.
The mother might make an absolutely superb job of educating [X] but I just cannot be sure if that would be the case.
This is a difficult issue of course, to slightly digress, because sometimes children can have bad outcomes at public schools even when they are professionally taught. However there is no guarantee that home-schooling would be beneficial to [X].
I am a little bit concerned about the mother’s capacity to provide for [X]’s emotional needs. I am concerned about how slow the mother was to agree to the father spending time with [X] after he returned to Australia. It might be that it was difficult to the mother to adjust to the father returning to Australia; it might be that now that he is back and is seeing his daughter regularly things will settle down and the mother will accept his presence. It is a bit like, I suppose, somebody going away to war for years and then coming back, or retiring and then having to fit into the household.
It might be that things will settle down and all will be well in the future. I hope that is the case.
As for the father’s capacity, he stayed in the United Kingdom for three years after separation and although he kept in communication with his daughter it could be argued that he let his daughter down a bit by not being there during that period to help with her day to day care, so I have some concerns about his capacity to provide for [X]’s emotional needs as well.
In terms of the father being able to care for [X] on a day-to-day basis there was nothing in the evidence to suggest that he was not properly looking after her when she visited him. I also accept that he has the capacity to provide for her intellectual needs in terms of ensuring that she gets an education.
I must have regard to [X]’s maturity, sex, lifestyle, and background.
[X] is 5 ½. Children of that age normally start primary school at the beginning of the next school year at the latest. There is no compelling reason, absent the mother’s desire for her to complete the last six months of the Montessori program, why [X]’s commencement of primary school education should be delayed until the middle of next year.
Another aspect of this consideration is that [X] has no special needs or unusual characteristics which suggest that one form of schooling might be better for her than another and again that differentiates this case from Spencer[5] where one of the children at least had special needs.
[5] Spencer & Spencer (supra)
I must have regard to the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents.
At present each parent is demonstrating a very good attitude to the child and the responsibilities of parenthood. I do not consider that either parent is being unreasonably stubborn about the education issue. Sometimes parents sit here before me and say that they want particular outcomes and I am left with a suspicion that one or both of them is thinking about themselves and not their child. In this particular case I do not have that feeling. I consider that both parents genuinely believe that the option they are putting forward for [X] is the best option.
My one concern is that it is clear on the evidence that the mother struggles to embrace the concept of involving the father in decision making.
The mother took [X] to a psychologist in December 2012 without consulting the father and without involving him, and it could be argued that this was a breach of the order for equal shared parental responsibility which I made in September 2012.
The mother has had it in her mind for some years to home-school [X], but she made no attempt to discuss this with the father until the court proceedings commenced.
Those actions by the mother do not demonstrate a good attitude to the child or the responsibilities of parenthood, because a responsibility of parenthood when there is a perfectly acceptable parent on the other side is to consult with that parent when decisions are required about the child, and it is particularly important to do that when there is an order for equal shared parental responsibility as there has been in this case since 19 September 2012.
I must have regard to any family violence or family violence orders and nothing was raised in the proceedings today about either of those issues.
I must have regard to any other relevant matter and there are several of those. Some of them overlap a bit with some of the things I have already said but I will raise them.
One is that the parties’ ability to communicate is poor. There is a lot of mistrust, there is some hostility and there have been some unpleasant emails exchanged.
The father’s counsel in paragraph 32 of his case outline submitted as follows:
There is little doubt that if [X] is homeschooled the level of friction between the parties -
the father’s counsel said ‘would increase.’ I might put it at perhaps ‘could increase.’
No doubt Mr Bates may raise justifiable concerns regarding homeschooling and Ms Churchill may well consider these concerns an attack on her. The fragile relationship between the parties could very well disintegrate and this would have a negative impact on [X], who is only 5 years of age.
There is force in this submission. I am very concerned that if the mother has total control of [X]’s schooling it will result in a situation where the father simply cannot be involved in the schooling at all and that there will be an increase in conflict.
The mother’s counsel submitted that I should have regard to the fact that the mother had complied 100 per cent plus with the orders for time which were made in September 2012 and that this should give me some confidence about the mother’s attitude and what might happen in the future.
However as I pointed out to the mother’s counsel during submissions I cannot craft a set of orders detailing the mother’s responsibilities to keep the father informed about [X]’s education if she is home schooled, and I also note the father had to fight to get the spend-time-with orders, so I am not convinced that the mother’s 100 per cent compliance with the spend time with orders necessarily means that I can depend on her to keep the father fully informed in relation to issues of the child’s schooling in the future.
The mother’s counsel also submitted that I should place particular weight on the mother’s belief that homeschooling was best for [X] because the mother knows her daughter and loves her daughter. However in a case like this where there is considerable conflict between the parties I always have to consider the risk that one party is not being entirely objective. There is a risk in this case that the mother’s own passionate view that homeschooling is best might be colouring her views about what might be best for her daughter, so I cannot place great weight on the mother’s belief that homeschooling would be best for [X].
I further note that this is not a case where the parties agreed on homeschooling at an early stage and where the father is now reneging on the agreement.
The final relevant matter is that the parties have agreed that if a public school is to be chosen then it should be [W] Public School. It is five minutes from the mother’s home so the mother will have no difficulty getting [X] back and forth to school if that is required.
Conclusion
I was referred to two cases by counsel. One was Spencer & Spencer[6] and the other was Xiu & Hodges.[7] I have had a look at those cases. They are both interesting but they confirm my view that every case of this nature turns on its own facts.
[6] Spencer & Spencer (supra)
[7] Xiu & Hodges [2011] FamCA 419
Both of those cases ended in a decision that the children in question should attend a public school rather than be homeschooled, save that in Xiu & Hodges the mother wanted the child to be homeschooled five days a week and the father wanted the child to go to mainstream school four days a week and be homeschooled one day a week and the father prevailed in that.
In Spencer the children had a history of homeschooling, but the order made by Jarrett FM was that they attend a mainstream school. He had the advantage of expert evidence not only from a family consultant in relation to the children but from experts in relation to education.
I have to decide this case based on the facts before me, and the cases to which I was referred, while interesting, do not hugely help me to decide this case.
I want to start by saying that there is absolutely no doubt in my mind that the mother and father love their daughter very much and that neither of them have a hidden agenda in putting forward their proposals about how she should be educated. There is no flavour in this matter of one parent trying to prevail over the other for selfish reasons, and I accept they both genuinely believe that what they are proposing is best for their daughter.
I cannot make findings about whether one form of schooling is better than the other. They are different, but I have no expert evidence from anyone about the forms of education. I have no family report.
Either form of schooling can have negative as well as positive outcomes. Children sometimes have their individual needs lost sight of in the public school system. Home educated children can be indulged because there is no objection assessment of their situation. Each form of education has its benefits and its detriments and I cannot decide the case on the basis that one form of education is better than the other.
I will have to take another approach to resolve the dispute and the approach which I consider leads me to a solution is this.
The father has now returned from the United Kingdom after being out of [X]’s life physically for some years and he is very keen to be in her life and to build a strong relationship with her. That will be aided if he is able to become involved in her education as well as other parts of her life.
The parents regrettably have a very poor relationship at present. They do not have much capacity to communicate meaningfully at all. There is some hostility and mistrust between them. Unless something changes I consider that there is very little likelihood that the father will be kept in the loop about [X]’s education if she is homeschooled.
There will be no one objective that the father can go to in order to talk about how his daughter is doing. All the information he gets will be filtered through the mother. This will not improve the parties’ relationship and it will not assist the father to develop a meaningful relationship with his daughter.
[X] has attended school 2 ½ days a week since 2011. She is used to attending school with other children. She has no special needs and I have no reason to be concerned that she might be unsuited for mainstream schooling.
I understand that if I make an order that [X] attend [W] Public School I will be dashing the mother’s hopes but I consider that this is the order which would be in [X]’s best interests and this is the order I intend to make.
If this order is to be made there is no benefit in delaying [X]’s attendance until the middle of next year. She is 5 ½ and children of her age would normally be at primary school, and there is no benefit in delaying that until she turns six in the middle of 2013.
I intend to otherwise bring the matter back on 8 March 2013 at 9.30 an and I hope that the parties will engage in private mediation between now and the next adjourned date in an effort to resolve their dispute about parenting arrangements.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Terry FM
Associate:
Date: 25 February 2013
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