Bradley & Cooper

[2009] FamCA 91

FAMILY COURT OF AUSTRALIA

BRADLEY & COOPER [2009] FamCA 91

Family Law Act 1975 (Cth)

FAMILY LAW  -  CHILDREN  -  interim application to enrol child at school annexe for intelligent but underachieving children  -  father opposed  -  application granted

FATHER : Mr Bradley

MOTHER : Ms Cooper

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 2151 of 1999

DATE DELIVERED: 4 February 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 4 February, 2009

REPRESENTATION

SOLICITOR FOR THE FATHER:

Mr. Saunders

M. Davine & Co

SOLICITOR FOR THE MOTHER:

Mr. Brooks

Gray Friend & Long

INDEPENDENT CHILDREN'S LAWYER:

Ms C.J. Jenkins

Victoria Legal Aid

Orders

1. That the mother forthwith do all things reasonably necessary to enrol the child K at B Centre and until further order :

   (a)K attend B Centre;  and

   (b)the father be and is hereby restrained from removing K from B Centre during a school day or from any other place at which K is engaged in activities at the direction or request of staff at B Centre. 

2. That until further order any changeover pursuant to existing orders which was to take place at K’s school, take place at B Centre. 

3. That the mother serve a sealed copy of this order on the principal of B Centre.

4. That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

5. That the reasons for judgment this day be transcribed and copies made available to the parties.

6. That a transcript of the hearing this day be transcribed and copies made available to the parties.

7. That the preparation of these orders be expedited forthwith.

8. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of solicitors appearing as counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  DGF 2151 of 1999

MR BRADLEY

Father

And

MS COOPER

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter has been listed as a matter of urgency as the mother seeks the court’s leave to enrol K in the B Centre, an annexe of the D School which caters for intelligent children who are underperforming. 

2. K is nearly 13 years old and is the younger of the parties’ two children.  His behavioural problems have been raised throughout these proceedings both in judgments delivered to date and in the recent family report.  It is clear from the father’s trial affidavit that by the middle of 2008 he knew of a proposal to transfer K to B Centre and did not agree with it.  His evidence was of making his objection known and he has certainly made that objection clear in this hearing.  In the course of his submissions, the solicitor for the father has told of his (that is, the solicitor’s) objection to B Centre and his view that a transfer to that facility is likely to result in K becoming a drop-out.  I must say that I found his language surprising.  This case is not about the solicitor’s view of the annexe, whether based on personal experience or from things seen or heard.  The court’s role is to determine what is in K’s best interests at this time. 

3. In her affidavit of 15 January, 2009 the mother deposed to the recommendation of D School that K attend the program at B Centre in the first semester of this year.  There is no evidence of any discussions between the parties about the issue from mid-2008 to date.  Consistent with their discourse (or lack of it) each took a stance.  Until very recently, only the mother engaged with K’s school in any productive way and it was that engagement which resulted in K applying for a place at G Centre in the first semester this year.  While the evidence suggests the father has had some contact with staff at B Centre in recent times, it seems that has only been to take objection to the potential transfer, rather than discuss other options.

4. An issue to be determined at trial is whether an order for equal shared parental responsibility is viable.  The lack of any form of parental alliance is a theme which runs through the evidence in the case.  I cannot make findings on contested facts today and the father has not had an opportunity to respond on oath or affirmation to the mother’s affidavit.  I do take into account the matters advanced by his solicitor today. 

5. Orders made in 2008 provided for K to attend D School.  Staff at the school believe that a semester at B Centre is in K’s best interests.  A letter from the team leader at B Centre sets out his conversations with the father and attempts to explain to the father that the school, and insofar as his views are relevant K, believe that B Centre would be the best place for K to be at the moment, in order to stabilize his behaviour and improve his self-esteem.  To suggest, as the father’s solicitor has, that no student from B Centre has completed the VCE program from that school, is to misunderstand the purpose of such a facility in the State school system.  B Centre provides a six month intervention program and aspires to reintegrate students in the mainstream school system at the conclusion of the program.  It does not offer Year 11 and Year 12 VCE.

6. K’s behaviour has been of concern to the court for some time.  I do not accept that an order allowing K to be enrolled at B Centre involves a denial of natural justice to the father or consigns K, as asserted, to life as a drop-out.  I am far more concerned about the adverse effects on K, as remarked in earlier judgments, of his father’s continuing refusal to abide by court orders, including orders for K to be returned to his mother’s home at specified times.  I have expressed concern at the poor role modelling offered by the father and the potential for it to be contributing to K’s behavioural and educational problems. 

7. In all the circumstances of this case I am satisfied that K’s best interests will be fostered by implementing the recommendations of D School and B Centre and allowing him to be enrolled in the B Centre program this semester.  I propose to order that the mother forthwith do all things reasonably necessary to enrol him there.  Until further order, K is to attend B Centre and the father will be restrained from removing him from B Centre during a school day or from any other place at which K is engaged in activities at the direction or request of staff at B Centre. 

8. Until further order, any changeovers pursuant to the existing orders which were to take place at K’s school will take place at B Centre.  As soon as practicable, the mother is to serve a sealed copy of this order on the team leader or principal of B Centre.

9. These reasons for judgment will be transcribed and a copy will be made available to the parties.  I will also order a transcript of the hearing and that, too, will be made available to the parties.  The matter will remain listed for trial, as previously ordered. 

I certify that the preceding
9  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2009.

…………………………………………
Associate.