Bellaire and Mandic (No. 2)

[2015] FamCA 1126

FAMILY COURT OF AUSTRALIA

BELLAIRE & MANDIC (NO. 2) [2015] FamCA 1126

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Where the applicant mother seeks a discharge of an order restraining her from enrolling the child at a foreign language-speaking school – Where the family report before the Court recommends that the child not be enrolled at that school – Where an updated family report is to be prepared for the final hearing in March 2016 – Where the Court finds it appropriate to list the mother’s application to be heard together with the substantive proceedings at the final hearing.

Family Law Act 1975 (Cth)

APPLICANT: Ms Bellaire

RESPONDENT: Mr Mandic

INDEPENDENT CHILDREN’S LAWYER: Ms Weate

FILE NUMBER: SYC 4409 of 2012

DATE DELIVERED: 20 November 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 20 November 2015

REPRESENTATION

FOR THE APPLICANT: Ms Bellaire in person

FOR THE RESPONDENT: Mr Mandic in person

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWER:

Jennifer Weate & Associates

Orders

1. The mother’s Application in a Case filed on 6 November 2015 is listed for hearing at 10.00 am on 29 March 2016.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bellaire & Mandic (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4409 of 2012

Ms Bellaire

Applicant

And

Mr Mandic

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter, by Application in a Case filed 6 November 2015, the mother has sought orders to discharge Order 11 made by Loughnan J on 8 September 2014 and any prior order relating to the mother being restrained from enrolling the parties’ son, the child, at the Foreign Language School (FLS) of Sydney. In place of the discharged order, the mother sought an alternative order specifically permitting her to enrol the child at the school.  The mother’s application has been listed before the Court today for mention and for further programming.

2. By way of affidavit filed 6 November 2015, the mother has, in paragraphs 7 through to 11, given the following grounds for her application to be heard as a matter of urgency:

   7. the child has been offered a place at the FLS to commence on 18 August 2015.

   8. On 21 August 2015, I met with the Director of Primary at the [FLS], [Mr C].  He confirmed that the child’s place could remain open but if he did not take it up soon, he would have to undergo a further 3 day assessment to determine whether he still met the required level to enrol at the [FLS].

   9. On 19 October 2015, I sent an email to [the father] expressing my concerns regarding the child’s progress at [D School] (“[DS]”), giving my reasons for the child to attend the [FLS] and requesting [Mr Mandic’s] permission to enrol him there. He responded within minutes.

   10. I am increasingly concerned that the child is falling behind at [DS] and that he is not thriving there.

   11. I’m concerned that if this matter is not dealt with before the Final Hearing on 29 March 2016, the child will have fallen too far behind to be accepted into the [FLS] even if his placement is held open.

3. The mother’s affidavit annexed the email she sent to the father and his response opposing the proposal.

4. Currently, the Court has before it a report from a family consultant, Ms E, dated 25 November 2013.  In her report, Ms E expresses concern about the child being enrolled in the Foreign Language School. At paragraph 52 of her report, Ms E says:

   Her [the mother’s] decision to make [Country F], the child’s first language could be seen as merely “eccentric”. However, her decision to do so has significant ramifications for [the child].  [Ms Bellaire] does not seem to realise this.  [Ms Bellaire] is not [Country F] and although she has lived in [Country F] for significant periods of time as an adult she does not appear to have any significant ties to [Country F].  It is clear that [Ms Bellaire] has incorporated speaking Country F into her identity.  Her decision to speak with the child in Country F seems to be based on her need to view herself as Country F speaking.  She does not seem to have given any consideration as to whether this was an appropriate decision to make and she evidently made this decision without consulting the child’s father.  the child is living in an English speaking country, his father does not speak [Country F] and the community in which he lives does not speak [Country F].  The only person in the child’s life who speaks [Country F] is his mother.  It is usually positive for children to be bilingual and there is evidence that acquiring a second language as young children makes it easier for an individual to acquire a second language later in life.  However, the almost exclusive use of [Country F] in communication between [the child] and his mother has the potential to, and may even have created a “bubble” around their relationship which excludes the outside world, including her father.  This is not a healthy situation for [the child].

5. At paragraph 55, Ms E states:

   It is understandable that [Mr Mandic] should have difficulty with [Ms Bellaire] speaking [Country F] almost exclusively with the child, as her decision was made without consulting him and he feels excluded from communication that [the child] has with his mother when he might be present.  [Ms Bellaire] had complained about the lack of communication between her and [Mr Mandic] at changeovers but it seems that she speaks to the child in [Country F] on these occasions and [Mr Mandic] is unaware of what [the child] and his mother might be saying.  There might be less tension at changeovers if [Ms Bellaire] were to speak English on these occasions.

6. Ms E further says at paragraph 56:

   The difficulty that [Ms Bellaire’s] decision to make [Country F] [the child’s] first language seems to have generated would be compounded if the child were to attend the [Foreign Language School] of Sydney and it is therefore not possible to recommend that he attend this school as his mother now appears to be proposing…

7. In the proceedings today, I referred to the fact that the Court had received the family report from Ms E which is against the mother’s case to be permitted to enrol the child in Foreign Language School of Sydney.  The mother quite rightly points out that Ms E’s report is now more than two years old. Accordingly, the views of the family consultant in an updated report, which is being arranged for the final hearing of this matter, are going to be very important. The updated report will assist the Court in fulfilling its obligations under the Family Law Act 1975 (Cth) (“the Act”) to make a decision that is in the best interests of the child as required by section 60CA of the Act.

8. The appointments for the parties to see the family consultant are to take place in February 2016 and it is anticipated that the family consultant’s updated report would be available towards the end of February 2016. 

9. The Independent Children’s Lawyer (“the ICL”) argued that the Court should be in receipt of that updated report before determining a matter as important as the school that the child is to attend.  The ICL also noted that the Court is a public resource and the parties and the Court need to have regard to the most efficient and effective use of those resources.

10. The ICL’s submission has merit. I will list the mother’s application for the orders she has sought, as contained in her Application in a Case filed 6 November 2015, to be heard when this matter is listed for final hearing commencing on 29 March 2016.  I do so for the reasons referred to above, but by way of summary:

    a)the current family report is against the child enrolling or being enrolled in the Foreign Language School of Sydney; 

    b)the report is two years old; 

    c)the mother challenges the family report and, as is her right, wishes to do so at the trial; 

    d)the Court is in the process of obtaining an updated family report, the interviews for that report will take place in early February and the report will be made available to the parties and the Court in late February; and

    e)There would be but a small window of opportunity for this application to be heard before the final hearing listed on 29 March 2016. 

11. In those circumstances, the most efficient and effective way of determining an issue as important as the school that the child attends should be dealt with in the context of the Court’s consideration of the totality of the evidence, including the evidence of the family consultant who, in that final hearing, will be subject to cross-examination. On that basis, the Court has determined to list the Application in a Case filed by the mother on 6 November 2015 for hearing at 10.00 am on 29 March 2016.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 20 November 2015.

Associate: 

Date:  17.12.2015