BOWDEN & BOWDEN

[2012] FamCA 130

FAMILY COURT OF AUSTRALIA

BOWDEN & BOWDEN [2012] FamCA 130

FAMILY LAW - CHILDREN – dispute as to which school the child is to be enrolled and attend

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Bowden

RESPONDENT: Mr Bowden

INDEPENDENT CHILDREN’S LAWYER: Cathleen Corridon Solicitor

FILE NUMBER: DUC 428 of 2010

DATE DELIVERED: 16 February 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: MacMillan J

HEARING DATE: 16 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dunlop

SOLICITOR FOR THE APPLICANT: Altavilla Vessali Barristers & Solicitors

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDRENS LAWYER: Ms Corridon and Ms Clark 

SOLICITOR FOR THE INDEPENDENT CHILDRENS LAWYER: Cathleen Corridon Solicitor

UNTIL FURTHER ORDER IT IS ORDERED THAT

1. As soon as practicable child L born … September 2006 be enrolled and attend at S School.

2. The father and mother do all acts and things and sign all necessary documents to give effect to L’s enrolment at S School.

3. Paragraph 2 (a) of the orders made on 4 August 2011 be varied to provide that the children L born … September 2006 and Y born … June 2008 live with the father each week from 4:00pm Wednesday until 4:00pm Saturday.

4. Paragraph 4 of the said orders be vaired to provide that the time the father spends with the child G born … February 2011 conclude each Wednesday, Thursday and Friday at 4:00pm.

5. The mother’s Application in a Case filed 9 February 2012 be otherwise dismissed.

6. All questions of costs be reserved.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DUC 428 of 2010

Ms Bowden

Applicant

And

Mr Bowden

Respondent

REASONS FOR JUDGMENT

1. I have listed before me today the mother’s Application in a Case filed on 9 February 2012 in which she seeks an order that the chid, L, be enrolled in S School.

2. L is 5 years of age and is the oldest of the three children of Mr and Ms Bowden. 

3. It is the mother’s case that L was due to commence school at S School on 7 February this year, a very important milestone for any young child.  Unfortunately, the father and the mother in this case have been unable to agree upon which school L should attend, and he has been provisionally enrolled at S School by the mother, and by the father at B School.

4. Neither school will accept L’s enrolment at this stage because of the dispute between his parents.  The mother’s application and affidavit were sworn 8 February 2012 and served upon the father at about 5.45pm on Wednesday 15 February 2012.  When the matter was called a little after 10.00am this morning, there was no appearance by the father, and I proceeded to hear the matter in his absence, hearing submissions from both Counsel for the mother and the Independent Children's Lawyer.

5. Having adjourned to consider the matter, I was advised that the father had sent an email to the Court to the effect that he could not attend, as he had the children in his care, but that he would be available by telephone.  The matter proceeded on that basis.

6. It is the mother’s case that prior to separation, she and the father had agreed that L would attend S School and that in 2007 they had had him baptised for that very purpose.

7. She deposes that on 17 March 2011, she attended an open day with L at S School.  They toured the school and met the school principal.  She also deposes that following that open day, she had a telephone conversation with the father, who was in New South Wales at the time, in relation to enrolling L at S School, and that the father agreed to that enrolment saying, “Book it in.  You know what is best in that department.”

8. The father denies that there was any agreement that L would attend S School.  All that he was aware of was that L had attended the open day at the school in March, as asserted by the mother.  However, he did acknowledge that L was expecting to commence school at S School this year.

9. In May 2011, or around that time, the mother says that she completed the enrolment forms for S School and she advised the father’s mother that she had done so, asking her to inform the father.  L’s enrolment at S School was confirmed by letter of 9 June 2011.

10. It is the mother’s case that approximately 8 to 10 children from L’s pre-school, including most of L’s friends, are attending S School this year.  Annexed to the mother’s affidavit, and marked VB3, is a copy of a letter from Ms C, L’s pre-school teacher, confirming that:

    [L] has made friendships and connections with many of the children at pre-school this year on the days he did attend, and there will be 8 to 10 children he knows going to [S School] in 2012.  There are no children I have listed to attend [B School] that I am aware of.

11. She went on to say, again quoting from that letter, that:

    [L] does find making these connections with peers difficult at first and would definitely benefit, in my professional opinion, from having familiar peers, or children he has already made friendships with at school with him.

12. The mother’s evidence is that she is willing to pay all the fees and costs associated with L’s attendance at S School.  On 19 November 2011, the mother says that L told her that the father had enrolled him at B School.  She then rang Ms P, the principal of B School, and advised her that she had not agreed that L should attend B School.

13. On 25 November 2011, the mother asserts that she was contacted by Ms P, who advised her that the father had tried to enrol L at B School, but that she had made that enrolment conditional upon her receiving a written consent of both the father and the mother or an order of this Court.

14. On 22 December 2011, the mother’s solicitors sent a letter to the father’s solicitors advising them that the mother did not accept the father’s proposal that L attend B School.

15. On 20 January 2012, the mother’s solicitors wrote to the father’s solicitors, as follows:

    We refer to the issue of [L’s] schooling, and note that [L] is due to commence school at [S School] on 7 February 2012.  Our client is willing to take the child to and from school each Thursday and Friday in the time the child spends with your client in the event that your client is unwilling to do so.

16. On 30 January 2012, not having received a reply to their earlier correspondence, the mother’s solicitors again wrote to the father’s solicitors, as follows:

    The issue of the child [L’s] schooling.  We confirm our instructions that [L] is currently enrolled at [S School] and due to commence school on 7 February 2012.  Further to previous correspondence, we note that clause (5) of the intervention order made 2 May 2011 includes your client from coming within 200 metres of a protected course of the school.  In the event that your client is agreeable to take [L] to and from school on the days during which [L] spends time with your client, the parties may seek an order by consent to dissent so as to avoid breaching the intervention order.  In the meantime, our client’s proposal to take the child from your client time to and from school still stands.

17. The mother’s solicitors did not receive any response to that correspondence, and hence the current stalemate.

18. It is the mother’s case that the father has reneged on his initial agreement to enrol the child in S School as a deliberate attempt to control, intimidate and hurt her, without any consideration of the effect of his actions upon L.

19. She deposes that in September 2011 she received a text message from the father saying:

    Forget any ideas that we floated when we lived together.  Anything you say from hud/wife time no longer applies as you are a liar liar pants on fire.

20. She further deposes that on 1 February 2012, the father said to her:

    My mission in life is to deny you everything and destroy your relationship with these children and take them back to New South Wales.

21. The father said that he was unable to attend to Court, as he had the care of the children, and in the time available after service of the documents, had not been either to arrange legal representation or child care for the children to enable him to attend the court.

22. He acknowledged that whilst he had only recently been served with the documents, he was well aware of the dispute in relation to the school that L should attend. 

23. Although he has taken steps to enrol L at B School, it is now his case that L should not attend school until 2013.

24. The mother’s response to the father’s submission that L should not attend school until 2013 is that all of his friends, as a result of that, would be a year ahead of him at school, and it was her case that this is not in his best interests.

25. The father denied that the mother had told him about the open day at S School in March and said that although the parties were still living together at the time, he was in New South Wales at that time which was consistent with the mother’s evidence.

26. He told me that he chose B School because of its proximity to his home, and the mother’s home, and that L already had friends at B School.

27. In response to the submission made on behalf of the mother that the children L knew at B School were all older than him, the father asked L the name of his friends from pre-school who would be attending B School. 

28. Whilst I was aware that the father had some of the children in his care, and I could hear the children’s voices in the background, I was not aware until the father asked L a question that he had L with him and that L may have been present throughout the hearing and heard all that was said, including the allegations the father made about the mother. Although the father told me that L had been outside, it would certainly be of concern if that were found not to be the case.

29. The Independent Children's Lawyer submitted that L should be enrolled and commence school as soon as practicable, and supported the mother’s case that he should be enrolled at S School.  She submitted that there was no evidence that L was not ready to commence school.  She also referred me to the letter from Ms C, L’s pre-school teacher, and in particular her opinion that L would benefit from having familiar peers with him at school.

30. Each of the parents in this case have parental responsibility for L.  Decisions about L’s schooling are a duty and responsibility of both parents, a responsibility that they have not been able to cooperatively fulfil in this case.

31. When making a decision as to which school L should attend, it is L’s best interests that are the paramount consideration. A determination of L’s best interests requires a consideration of the primary and additional considerations in section 66CC, subsections (2) and (3) of the Family Law Act 1975.  An analysis of those statutory considerations of what is in L’s best interests must be consistent with the objectives and principles underlying those objectives outlined in section 60B(1) and (2) of the Act.

32. In Goode &Goode (2006) FLC 93-286 at paragraph 68, the Full Court said as follows in relation to the hearing of interim proceedings:

    The procedure for making interim parental orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future. 

33. Although Goode & Goode was dealing with the living arrangements for the children the subject of those proceedings, the same principles apply to any parenting case that is being dealt with on an interim basis.

34. There has been no opportunity to test the evidence, and I am not in a position to make findings where there are disputes as to the facts.  However, I am able to look at what would appear to be a less contentious issue.

35. It is common ground that L was aware that he would be starting school at S School this year, and already he has missed out on what for most children is a very special day.  He is also in a situation where his friends have started school without him.

36. Whilst the father disputed that the mother had told him about that open day, or that she was attending the open day with L, he did not dispute that she had taken the steps she said she took in relation to enrolling L at school, whereas, on the other hand, the father conceded that he did not take steps to enrol L at school until about November 2011, when he made arrangements for L to attend B School.

37. Although untested, the evidence of L’s pre-school teacher, which would suggest that he would benefit from being at a school at which he has a number of friends, gives me some confidence that it is in his best interests to attend S School.

38. Whilst similarly untested, I have been referred to the evidence of Dr D, who is a forensic psychiatrist.  He prepared a report on the instructions of the Independent Children's Lawyer.  At page 7 of that report, he said as follows:

    I anticipate that [Mr Bowden’s] resentment to [Ms Bowden] may compromise his capacity to engage in meaningful and fruitful dialogue in the interests of the children.

39. There was also a report prepared in relation to the mother by Dr D, in which he reflected that the mother said she wanted an amicable relationship but that that was likely to be difficult due to Mr Bowden’s attitude.

40. The family report writer, Ms H, also, in summarising this matter, noted that:

    The couple continue to have difficulty communicating and cooperating in respect of the children.  The parents are also likely to continue to have polarised views regarding what is best for the children.

41. This gives me some insight into the dynamics of what may have led to this application and the situation the parties now find themselves in. 

42. It was the father’s case that he is now attending the post-separation parenting courses recommended by Dr D, and that it is the mother and not him that is unable to enter into a reasonable dialogue for the benefit of the children.

43. It remains to be seen whether it is the attitude of the father or of the mother that is the cause of them being unable to make a decision in relation to L’s education.  While I am not presently in a position to make any findings of fact about the circumstances that led to the making of this application, it certainly raises questions, subject to the ultimate findings of fact, as to the capacity of the father and mother to provide for L’s emotional and intellectual needs, and their attitudes to the responsibilities of parenthood demonstrated by the dispute in this case.

44. On the basis of an assessment of the evidence I have before me, and the submissions made by and on behalf of the parties and the Independent Children's Lawyer, focussing on the best interests of L, on the balance of probabilities I am satisfied that it is in L’s best interests that he be enrolled and attend at S School.

45. My decision is not in any way based upon any assessment of the relative merits of the two schools, noting that the father’s case today was that L should not attend school until next year, but is based upon the evidence before me and what is in L’s best interests.

46. The mother has also made an oral application, in which she seeks to vary the start and finish times of the time the father spends with the children, to allow her to collect L from school and travel home in time to permit the father to spend time with L.

47. The father has agreed that, in the event that I make orders that L attend school, he will accede to the mother’s application to vary the order that he will collect from the mother’s home at 4 pm on Thursday rather than 3.30 pm, and that he will return the children to her home at 4 pm on Saturday, rather than 3.30 pm.

48. I propose to make an order in those terms.

49. I propose to make an order until further order that the child be enrolled as soon as practicable and attend S School and if there is any further requirements I will make an order that the parties do whatever they are required to do to give effect to that order.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McMillan delivered on 16 February 2012.

Associate: 

Date:  19 March 2012