Brady and Stockton

[2014] FCCA 2688

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRADY & STOCKTON [2014] FCCA 2688

Catchwords:
FAMILY LAW – Parenting – what school child should attend.

Legislation:

Family Law Act 1975, s.60CC

Dane v Morrow [2012] FamCA 57
Re G: Children’s Schooling (2000) FLC 93-025
In the Marriage of Bishop (1981) 6 FamLR 882
In the Marriage of Newbery (1977) 2 Fam LR 11, 652

Applicant: MR BRADY

Respondent: MS STOCKTON

File Number: PAC 3032 of 2013

Judgment of: Judge Dunkley

Hearing dates: 21 and 22 October 2014

Date of Last Submission: 22 October 2014

Delivered at: Dubbo

Delivered on: 21 November 2014

REPRESENTATION

Counsel for the Applicant: Mr Simpson

Solicitors for the Applicant: Thompson Madden Solicitors

Counsel for the Respondent: Ms Mahony

Solicitors for the Respondent: Burke & Baker Lawyers

Solicitors for the Independent Children's Lawyer: Ms Hafey of Legal Aid New South Wales

ORDERS

1. X born (omitted) 2007 shall be enrolled at and attend (omitted) School until the end of the 2017 academic year.  

2. If the parties are then unable to agree as to X’s school enrolment for the year of 2018 onwards they shall engage in Family Dispute Resolution and in the event that that Family Dispute Resolution is unsuccessful the mother shall notwithstanding Order 1 made on 21 October 2014 have sole parental responsibility to determine X’s school enrolment and attendance, from 2018 onwards.

3. Each parent shall from time to time give all consents and sign all documents and share equally in payment of any fee to enable X to apply for and sit any scholarship test, or entry or selection test to facilitate the obtaining of an educational scholarship or selective school placement.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ORANGE

PAC 3032 of 2013

MR BRADY

Applicant

And

MS STOCKTON

Respondent

REASONS FOR JUDGMENT

Introduction

1. Mr Brady who I will for ease of convenience refer to as the father and Ms Stockton who I will for ease of convenience refer to as the mother are the parents of X. X is aged seven, she was born on (omitted) 2007.

2. The mother and the father with the assistance of their legal representatives and the Independent Children’s Lawyer were able in the midst of the final hearing about the orders that would regulate their parenting of X settle all aspects except for the school that she was to attend.

3. On 21 October 2014  the orders they agreed on were made by consent and are as follows:

   1. The mother, Ms Stockton, born on (omitted) 1971 and the father, Mr Brady, born on (omitted) 1972 shall have equal shared parental responsibility for the child, X born on (omitted) 2007.

   2. Notwithstanding Order 1:-

   a. The father shall, in the event of disagreement between the parents, have responsibility for issues in relation to X’s aboriginal culture and for this purpose the father shall be entitled to take X to culturally significant events, provided that such attendance does not entail her absence from school for more than one day in each school term

   3. X shall live with the mother except at times when she is living with the father in accordance with Order 4).

   4. Unless otherwise agreed between the parents, X shall live with her father:-

   a. During school terms from the conclusion of school on Thursday until the commencement of school on Monday each alternate week, commencing on Thursday 30 October 2014 and recommencing on the second Thursday of each school term.

   i. For the purpose of this Order, the father shall collect or cause X to be collected from school at the commencement of his time and shall deliver or cause X to be delivered to school  or the appropriate bus stop for travel to school at the conclusion of his time or, in circumstances where X is not presenting to school, to the maternal grandmother’s residence by 9am

   b. On Fathers’ Day each year from 10am until the commencement of school the following day.

   i. For the purpose of this Order, the mother shall deliver or cause X to be delivered to the father’s home at 10am on Fathers’ Day and the father shall deliver or cause X to be delivered to school  or the appropriate bus stop for travel to school at the conclusion of his time

   c. Notwithstanding any other Order, from 3pm Christmas Eve until 3 pm on Christmas Day in each alternate year commencing in 2015.

   i. For the purpose of this Order, the mother shall deliver or cause X to be delivered to the father’s home at 3pm on Christmas Eve and the father shall deliver or cause X to be delivered to the mother’s home at 3pm on Christmas Day.

   d. Notwithstanding any other Order, from 3pm on Christmas Day until 3pm on Boxing Day in each alternate year commencing in 2014.

   i. For the purpose of this Order, the mother shall deliver or cause X to be delivered to the father’s home at 3pm on Christmas Day and the father shall deliver or cause X to be delivered to the mother’s home at 3pm on Boxing  Day.

   e. For the second half of each school holiday period.

   i. For the purpose of this Order, the mother shall deliver or cause X to be delivered to the father’s home at 10am on the mid Sunday of the school holiday period and the father shall deliver or cause X to be delivered to school or the appropriate bus stop for travel to school on the first day of the new school term.

   5. Notwithstanding any other Order, X shall live with her mother on Mothers’ Day and in the event that X is living with her father on that weekend, the father shall deliver or cause X to be delivered to her mother’s home at 10am on Mothers’ Day.

   6. In the event that Easter falls outside a school holiday period, X shall live:-

   a. with her mother on Good Friday and Easter Saturday in even years and on Easter Sunday and Easter Monday in odd years;

   b. with her father on Good Friday and Easter Saturday in odd years and on Easter Sunday and Easter Monday in even years.

   7. The mother and father shall each:-

   a. Keep the other informed of a current residential address and contact telephone numbers;

   b. Notify the other of any change to their residential address or contact telephone number within 3 days of any change;

   c. Communicate in relation to issues concerning X via SMS;

   d. Take all reasonable steps to ensure that they are each able to receive information from X’s school including school reports, newsletters and school photograph order forms;

   e. Be entitled to attend school events to which all parents are invited, including parent/teacher interviews, subject to the convenience of X’s teacher(s)

   f. Be entitled to participate as volunteers at X’s school, subject to completion of appropriate checks as required by the school.

   g. Notify the other of any significant illness experienced or injury occasioned to X while she is in their care

   h. Provide any necessary authority to ensure that the other parent is able to obtain all information in relation to X’s health

   i. Ensure that, while in their care, X attends all extra-curricular and/or sporting activities about which there has been prior agreement.

   8. The mother and father are each restrained from:-

   a. Denigrating each other or a member of each other’s extended family in the presence or hearing of the child

   b. Allowing any other person to denigrate the other parent or a member of the other parent’s extended family in the presence or hearing of the child

   c. Drinking alcohol while X is in their care to the extent that they would not legally be able to drive a motor vehicle

   d. Enrolling X in extra-curricular and/or sporting activities which take place in the other’s parent’s time without prior agreement for X to be involved

   9. The mother shall:-

   a. Seek treatment should she feel she needs it in relation to her mental health;

   b. Accept any referral by her General Practitioner to a psychiatrist and

   c. Notify the father in the event that she is given a new referral to a psychiatrist.

   10. The father shall:-

   a. Notify the mother in the event that he is no longer able to drive a motor vehicle due to difficulties with his eye-sight;

   b. Continue to engage with the (omitted) Centre for as long as counsellors at the Centre advise him that his engagement is desirable;

   c. Participate in the first available “Triple P” Parenting Course offered by (omitted) or such other organisation as recommended by (omitted) and

   d. Not attend at any school in which X is enrolled except in accordance with the provisions of Orders 7 e) and 7 f).

4. X is currently in year one. She is currently enrolled at (omitted) School.

5. The father wants X to remain enrolled at and attend (omitted) School, for the rest of her education. (omitted) is a kindergarten to year twelve school. The only exception being if she won a scholarship to a private school, or a place at a selective school.

6. The mother wants X to be enrolled at and attend (omitted) Public School, for her primary school education, unless she were awarded a scholarship to a private school, or a place at a selective school.

7. For part of 2013 X attended at both (omitted) Public School and (omitted) School.

8. Both (omitted) School and (omitted) Public School are New South Wales Public Schools.

9. Deciding the school that a child attends is usually an exercise of parental responsibility. If the Court if it is to make that decision at the request of the parents that decision must have as its paramount consideration the best interest of X. The orders made that implement the enrolment must be in X’s best interest and reasonably practicable.

10. In deciding what is in X’s best interest the Court must have regard to the factors set out in sections 60CC(2)(2A) and (3) of the Family Law Act 1975.

11. On the evidence lead in this case s.60CC(2)(a), s.60CC(3)(a),(b), (c),(d),(e),(h),(l) and (m) are relevant.

12. Precedent guidance for the Court in its decision making is found in the Full Court decision known as Re G: Children’s Schooling (2000) FLC 93-025.

13. During the course of submissions the Court was referred to the decisions of In the Marriage of Bishop (1981) 6 FamLR 882, Dane v Morrow [2012] FamCA 57 and In the Marriage of Newbery (1977) 2 Fam LR 11,652.

14. The decision in Dane v Marrow is fact specific and an interim decision that provides no useful guidance in the determination of this case.

15. The decisions in In the Marriage of Bishop and In the Marriage of Newbery are now well out of date having regard to the number of legislative amendments to the Family Law Act 1975.

Documents

1. The father relied on his Affidavit sworn 21 October 2014.

2. The mother relied on parts of her Affidavit sworn 24 July 2013 and parts of her Affidavit sworn 15 September 2014 and a Proof of Evidence Statement that became Exhibit ‘A’.

Chronology

(omitted) 1971

Mother born

(omitted) 1972

Father born

(omitted) 2007

X born

January/February 2013

X commences Kindergarten at (omitted) School

2 May 2013

Mother enrols X at (omitted) Public School

June 2013

Pursuant to disputed circumstances X comes into the care of the father who re-enrols her at (omitted) School

26 July 2013

Interim parenting orders made by consent in the Local Court at Orange as follows:-

·    Parties to have equal shared parental responsibility

·    X to live with the mother

·    Each party have responsibility for decision making relevant to day to day care, welfare and development of X

·    Mother to reside with her parents at (omitted) until a report from her GP is obtained as to her capacity to care for X

·    Father to spend time with X from after school Friday to the commencement of school Monday commencing 2 August 2013 and from after school Wednesday to commencement of school Thursday each alternate week commencing 7 August 2013 and half school holidays

·    The non-residential parent to spend time with X from 3pm Christmas Day to 5pm Boxing Day

·    X to attend (omitted) School

·    The parties shall communicate with X when she is not living with them by telephone between 5.30pm and 6pm

·    Both parents and grandparents be able to attend events, functions and otherwise participate in the school life of X

·    The father attend alcohol counselling

·    The mother attend for assessment with a mental health facility

·    The proceedings be transferred to the Federal Circuit Court of Australia

·    The mother will not relocate more than 100 kilometres

Agreed Facts

1. Neither party calls into dispute the chronology set out above. The parties have implemented and abided by the interim orders made in the Local Court at Orange on 26 July 2013.

2. The parties for most of their lives have lived in and around (omitted) and for short periods have lived in North Queensland and Canberra, sometimes together sometimes separately. The evidence about this is not entirely clear, and really only of historical relevance.

3. Both parents attended (omitted) School and met at that school when they were in third class.

4. The father is an Aboriginal man of the (omitted) People from the (omitted) area.

5. The father has an eye condition called multi-focal posterior placoid pigment emeithelopathy.

6. He can legally drive but has no night vision.

7. The mother lives on a rural block about ten to fifteen minutes drive outside of (omitted).

8. She works as a (occupation omitted) at the (employer omitted), (employer omitted) and as (occupation omitted) at (employer omitted) in the (omitted) season of October to April.

9. The father’s home in (omitted) is a couple of blocks from (omitted) School.

10. The bus trip from the mother’s home to (omitted) Public School by the school bus is about 40 to 50 minutes duration.

11. Her home is 15 kilometres from (omitted) and 36 Kilometres from (omitted).

Evidence

Father

1. He said he was not consulted by the mother about changing X’s enrolment from (omitted) School to (omitted) Public School for the second term of 2013.

2. He concedes not having consulted the mother about having re-enrolling X into (omitted) School in late June 2013 when X came into his care.

3. He describes X as very confident and as “a social girl”.

4. He says she is very bright academically.

5. Whilst he regards learning the (omitted) language as important he says neither his mother nor himself speak that language.

6. He says that his eye condition would prevent him from attending school functions at (omitted) Public School that occurred at night.

7. He says a number of X’s relatives work at (omitted) School and some of her relatives attend that school.

8. Annexed to his Affidavit is a copy of X’s 2013 Semester Two Report from (omitted) School and a copy of her 2014 Semester One Report from (omitted) School which both indicate high and sound academic achievement and maximum effort.

Mother

1. She says the school hours at (omitted) Public School are 9am to 3pm. X would catch a bus from her property at 7.50am at the beginning of the day and at the end of the day X would remain in the school playground until 3.20pm and then the bus would deliver her to the mother’s home at about 4.10pm.

2. She says there is a school bus stop four blocks from the father’s home that would collect X from about 7.20am in the morning and return her at about 4.40pm in the afternoon.

3. She is critical of members of the father’s family providing fast food and fizzy drinks to X at school at (omitted).

4. It is her belief that the education that X would receive at (omitted) Public School is superior to what she receives at (omitted) School.

5. She also says some (omitted) culture and language is taught at (omitted) Public School.

6. It was her belief that she had the father’s consent to change X’s enrolment from (omitted) School to (omitted) Public School, starting in second term 2013.

7. Annexed to Exhibit ‘A’ is a letter from (omitted) Public School which indicates that X was a happy student at that school and developed positive relationships with her peers.

8. Her school report is also annexed from Semester One 2013 at (omitted) Public School and it too indicates that she was a high achieving student consistently working and participating within the school, who settled easily into the school.

Determination

1. There is no real direct evidence as to X’s views about her school enrolment. Even if there was her age and stage of development means that little weight would be attached to those views. X was willing to go to (omitted) Public School because she had a friend who was going there. On the evidence she seemed to be happy in her attendance at both schools.

2. X has spent more time with her mother than with her father. I conclude that she most likely has a closer relationship with her mother than with her father. I am satisfied that she has an important relationship with each of her parents.

3. Her parents do not communicate really at all. When they do it is not in an effective manner. At best it would seem that they parallel co-parent.

4. The mother has sensibly agreed that the father should take the lead role in educating X as to her Aboriginal culture, given both the father and X are Aboriginal.

5. The mother wishes to take the lead role in decisions as to X’s school education. She says that she has always been focused on this aspect of X’s life. She says that she put a lot of effort into getting X to be ready to attend school and there is no doubt that that effort resulted in X being ahead of her peers at the commencement of her kindergarten education, being able to both read and count.

6. If X is permitted to enrol in (omitted) Public School in 2015 she will then have had four changes in school between (omitted) School and (omitted) Public School by the commencement of her third year of school education. Although she is a sociable and adaptable child such frequency of change is likely to be disruptive for her.

7. There is longer travel by bus for X to attend (omitted) Public School, but nothing out of the ordinary for children in rural areas.

8. Both parents have relatively easy access to (omitted) School, the mother because she drives and works in (omitted) and the father because he lives within a couple of blocks of the school.

9. The father’s vision would make attendance by him at night events at school at (omitted) Public School more difficult as he would be reliant on others for transport whereas he could walk to night events at (omitted) School. The number of night events at each school each year is not disclosed on the evidence. It is therefore not possible to decide whether or not this would in fact have any actual meaning.

10. It would also take X longer to get to and from school to (omitted) Public School than to (omitted) School.

11. With changes to the curriculum expected at (omitted) School in 2015 X’s opportunity for education in the (omitted) language and culture would be equal at either school.

12. Both parents wish to maximise X’s educational opportunities. Both would not oppose her sitting scholarship exams. Both would not oppose her attending a private school if she achieved a scholarship or a selective school if she achieved a place.

13. (omitted) School caters for children from kindergarten to year twelve.

14. (omitted) Public School caters for children from kindergarten to sixth class.

15. Given X’s age it is not possible to determine whether she will always be more academically advanced than her peers. It would appear that her peers are slowly catching up to her. However, I am unable to conclude, because of the lack of expert evidence, whether that is a natural development or as a result of some deficiency in teacher conduct of her education.

16. On the limited evidence I am unable to conclude whether one school offers a better education than the other.

17. Given that both parties would wish to maximise educational opportunity for X orders will be made that facilitate her sitting selective school tests and scholarship tests. Neither party opposes such orders.  As this is a joint position they should equally share any cost.

18. I cannot be satisfied that it would be in X’s best interest to otherwise make orders that would prescribe her education to the end of High School. Given her age and academic giftedness prescription of her education to the end of fourth class so as to provide early stability for her is as far as I could go into the future with certainty. By 2018 X’s educational needs may have changed. Her peer relationships will be developing. Unforseen opportunities might arise.

1. If the parties are unable to agree as to X’s school attendance for fifth class (2018) and beyond then they will be required to engage in Family Dispute Resolution and if they are unable to resolve that issue the mother will then be given the ability to make that choice so as to avoid the need for further litigation.

2. I am satisfied because of the greater focus that the mother has placed on X’s education and her “hands on” involvement that she will not abuse that ultimate decision making process and would make a decision that would promote and enhance X’s future education.

3. Another reason for giving the mother the ultimate decision making is the fact that X spends significantly more time each fortnight with her mother than her father, and her mother is likely to be more “in tune” with X’s needs, wants and desires.

4. A further reason is that the choices will be restricted, it would seem, to either (omitted) or (omitted) if a scholarship or selective place is not available and both locations can be accessed by both parties without too much difficulty. Notwithstanding the father’s eyesight problems.

5. In summary, there is no cogent evidence that the proposed change to (omitted) Public School would at this time benefit X. However, I cannot rule out that by fifth class there might be cogent evidence that would benefit a change of school for X and the parents should then be given the opportunity to make that decision jointly or as a result of Family Dispute Resolution and if they cannot then so as to avoid further litigation the mother would have that ultimate decision making power.

6. For the above reasons I am satisfied that the orders are both in X’s best interest and also reasonably practicable.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Dunkley

Associate: 

Date:  21 November 2014