Carmody & Strauss

Case [2021] FCCA 2059

FEDERAL CIRCUIT COURT OF AUSTRALIA

Carmody & Strauss [2021] FCCA 2059

File number(s): TVC 914 of 2021
Judgment of: JUDGE BOWREY
Date of judgment: 24 August 2021
Catchwords: FAMILY LAW – parenting – where there are current final parenting orders – where the parents have equal shared parental responsibility – where the parents cannot agree on which secondary school the children should attend – consideration of the children’s best interests
Legislation: Family Law Act 1975 (Cth), ss 60CA, 60CC
Cases cited:

Dreyfus & Kearney [2010] FamCA 1054

Rice & Asplund (1979) FLC 90-725

Ryan & Janosi [2011] FMCAfam 774

Whitton & Anor (No 2) [2010] FamCA 1119
Number of paragraphs: 54
Date of hearing: 16 August 2021
Place: Townsville
Counsel for the Applicant: Ms Stocks
Solicitor for the Applicant: Ruhl Family Law Centre
Respondent: The Respondent appearing on his own behalf

ORDERS

TVC 914 of 2021
BETWEEN:

MS CARMODY

Applicant
AND:

MR STRAUSS

Respondent

ORDER MADE BY:

JUDGE BOWREY

DATE OF ORDER:

24 AUGUST 2021

THE COURT ORDERS THAT:

1.Paragraphs 1 – 4 inclusive of item 3 “interim or procedural orders sought” in the Initiating Application (Family Law) filed 14 July 2021 be dismissed.

2.The orders of this court of 16 August 2019 and 6 August 2021 continue to have effect.

3.Within seven (7) days of the date of this order, the Mother and the Father do all acts and things and sign all documents necessary for the child X born in 2010 to be enrolled in B State High School.

4.When necessary according to the enrolment policy of the school, the Mother and the Father do all acts and things and sign all documents necessary for the child Y born in 2012 to be enrolled in B State High School.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT DELIVERED EX-TEMPORE

JUDGE BOWREY

  1. These proceedings are with respect to the children X born in 2010 (now aged 11) and Y born in 2012 (now aged 9).

  2. The Mother is Ms Carmody. She is represented by Ruhl Family Law Centre.

  3. The Father is Mr Strauss. When this matter was heard on 6 August 2021 the Father was represented by Mr Pack of Counsel instructed by Cleon Legal.  That firm withdrew and at the hearing on 16 August, the Father represented himself.

  4. For the applicant Mother, the relevant documents are:

    (a)Initiating Application (Family Law) and the Mother’s Affidavit both filed 14 July 2021;

    (b)Amended Initiating Application filed 15 July 2021;

    (c)Notice of Risk filed 14 July 2021; and

    (d)Mother’s Affidavit filed 6 August 2021.

  5. For the Respondent Father, his documents are the Response and Father’s Affidavit filed 6 August 2021.

  6. The Mother’s application was dealt with in two…

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Carmody & Strauss [2021] FCCA 2059
Case
[2021] FCCA 2059
Decision Date

CaseChat Overview and Summary

In the matter of *Carmody & Strauss*, heard before Justice Bowrey, the applicant mother, Ms Carmody, and the respondent father, Mr Strauss, presented differing proposals for the secondary schooling of their two sons, X (born 2010) and Y (born 2012). The dispute centred on whether the boys should attend C School, a private institution favoured by the mother, or B State High School, preferred by the father.

The court was required to determine which of the proposed schools was in the best interests of the children, considering the evidence presented by both parents regarding the academic, sporting, social, and personal development opportunities offered by each institution. Key issues included the children's expressed wishes, the potential impact of attending a religious school, the financial capacity of the mother to solely fund private schooling, and the availability of support for potential behavioural or medical needs, such as the suspected ADHD of child Y.

Justice Bowrey reasoned that neither school was demonstrably superior in a general sense, acknowledging the high quality of both B State High School and C School. The court found that the resources and opportunities available at C School were likely to be matched by B State High School. Ultimately, the court ordered that the boys attend B State High School, primarily due to the significant advantage of their step-siblings attending the same institution, which could provide invaluable guidance and support during the transition to secondary education. The court also noted the mother's potential overestimation of her long-term financial capacity to solely fund private schooling and that the children did not appear to come from a religious background.

Orders

Orders of the court

TVC 914 of 2021

BETWEEN:

MS CARMODY

Applicant

AND:

MR STRAUSS

Respondent

ORDER MADE BY:

JUDGE BOWREY

DATE OF ORDER:

24 AUGUST 2021

THE COURT ORDERS THAT:

1. Paragraphs 1 – 4 inclusive of item 3 “interim or procedural orders sought” in the Initiating Application (Family Law) filed 14 July 2021 be dismissed.

2. The orders of this court of 16 August 2019 and 6 August 2021 continue to have effect.

3. Within seven (7) days of the date of this order, the Mother and the Father do all acts and things and sign all documents necessary for the child X born in 2010 to be enrolled in B State High School.

4. When necessary according to the enrolment policy of the school, the Mother and the Father do all acts and things and sign all documents necessary for the child Y born in 2012 to be enrolled in B State High School.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

I would further comment that in the present case, there is some confusion about the Father's payment of child support. The Mother is offering to pay all of the school fees for the boys at the private school C School. The Father has paid some child support although for some reason which was not apparent to me despite the parties trying to explain it, the Mother has not collected that child support which is accumulating within the Child Support Agency, apparently.EVIDENCE The Applicant Mother gave evidence and she was the only witness in her case. She was cross-examined by Mr Strauss. Mr Strauss was then cross-examined by Ms Stocks of Counsel for the Mother. He was the only witness in his case. I thought that the evidence of each parent was presented in a straight forward manner. Each appeared to be truthful and was giving evidence from his and her point of view in an appropriate fashion. Perhaps this is not surprising. There is not a great deal of factual dispute between the parties, rather a difference of opinion about whether Y has ADHD - the 6 August hearing and about which school the boys attend – the 16 August hearing. THE PARTIES’ PROPOSALS As referred to above, the Father opposes the Mother’s application that the children attend C School. He proposes that they attend B High School. A summary of the reasons the Mother wants the children to attend C School is as follows:(a)The child X has expressed a wish to attend C School as this is where his friends from sports are going.(i)The friends referred to above are friends that X keeps in contact with although he does not play sports at present.(b)The children do need to change schools. They attend B Primary School at present. They will have to go into Middle School (which is within the State High School) and X does that next year(c)Following on from (a) and (b), the Mother says that X may be more comfortable in the transition to Middle School and then High School, if he has friends at the school.(i)I would comment that it is just as likely that X would have friends at B State High School, being the friends he has in his Primary School class now.(d)The Mother is willing and able to pay the school fees and does not require the Father to contribute. (e)The Mother has joined the Catholic faith in the sense that she attends mass apparently, each second weekend. I understood this to mean that she may not be taking the boys to mass when they are with her or at least, not all the time. The Mother is not baptised and has not undergone any formal conversion to Catholicism. (f)C School is a smaller school than B High School, with a total of about 1000 pupils compared with 2000. Obviously, neither school is small in a real sense. The Mother feels that C School will provide for the needs of Y, including that he may have ADHD.(g)The Mother believes that C School will generally have greater academic and sporting opportunities for both boys. The Father opposes the children being enrolled at C School and wants them to attend B High School. Apart from stating that he is an Atheist and does not want the children to attend a religious school, the Father raised the following:(a)B High School has a high reputation for its sporting programs including the sports these boys are interested in. Further, it has a wide and extensive list of academic subjects which can be taken.(b)B High School gives significant recognition to Indigenous sporting and cultural matters. The Father agreed that as far as he has aware, C School does this as well. The Father identifies as Indigenous.(c)The children of the Father's partner and other friends of the family, attend B High School. This would support the relationship between all of the children notwithstanding that the children of the Father's partner are older. I think that this is significant. (d)The Father doubts that the Mother can solely to afford to be able to send the children to C School. Any negative change to the Mother's finances may mean that in paying school fees there, she is not able to provide for the children's other needs and/or there will have to be a change of school, presumably from C School to B High School.

Decision

Reasons for decision

I am not persuaded that the various resources for students provided by C School and referred to in the Mother’s evidence, would not be available at B High School. DECISION FOR CHILDREN This case is quite finely balanced. The proposal by each parent about where their sons should attend school, was reasonable and appropriate according to the relevant evidence. There did not seem to be any point scoring for the two schools which are at the heart of the courts determination. I refer to two schools although the Mother proposed as an alternative to C School, H School. That school did not feature in any significant way in the evidence or cross-examination and its facilities both academic and sporting were not subject of detailed evidence. In my view, the boys should attend B High School. I have come to that view for the following reasons:(a)The boys’ step-siblings in the Father’s household (the children of his partner) attend there and as I understand it, some other persons the boys know have attended there or do attend there. (b)The step-siblings of the boys can be of important assistance to them, showing them around a large school and advising who to speak to should the boys encounter any difficulties. This may be especially helpful for Y if he does have ADHD. This guidance is in addition to the step-siblings themselves providing support for X and Y. Having two older students at the school when children take the significant step into secondary education is in my view, a significant positive feature. To the extent that Ms Stocks said that the step-siblings will have finished secondary school in a few years’ time, it is the next couple of years and in particular the first year for each of the boys, which will be the most important with respect to this aspect.(c)There will be no real inconvenience for the Mother in taking the boys to and from B High School. (d)There will be no inconvenience for the Father (he will have the longer drive) in the boys attending B High School as he will be taking his step-children there. (e)To the extent that X chose C School, this may have been caused by his attendance at an open day there whereas he did not have the opportunity to have a similar impression of B High School. Further, the Father’s view is that X was unfairly influenced towards C School. (f)Although the Mother would be disappointed and to some extent rightly so, that the Father has not carried out the terms of paragraph 12 of the parenting plan signed on 2 February this year, the Father was not obliged absolutely to do this. The parenting plan was nevertheless an important part of the Mother’s evidence. (g)To the extent that X may have chosen C School because some friends from a former sports teams are going there, my view is that X appears to have been able to keep in contact with those boys, given that he does not play sports now but remains friends with them. Further and more importantly, one assumes that a significant number of his present school friends at B Primary School will be likely to go to B High School.(h)The parents must have made a joint decision or at least agreed at some point, to send their sons to B Primary School. Commencing school would have occurred after separation. It is not necessarily the case that students at B Primary School would automatically attend B High School, although I imagine that a considerable number do. (i)There is no doubt that B High School and C School offer a wide and excellent choice of school subjects and sporting opportunities, together with all of the necessary physical facilities and well trained professional and sporting staff. (j)Similarly, each school would have available for its students, counsellors and other staff who are able to deal with medical/behavioural issues (if this is the case for Y) or personal problems that may arise for either boy from time to time. (k)The boys do not appear to come from a religious family background. (l)The Mother may be overly optimistic in her view that she will be able to pay school fees for years into the future. Her present financial circumstances with her partner do allow for this. SECTION 60CC

Ratio Decidendi

Legal Principle Established

We do not know what X would have thought about B High School if he had been given a tour of it or attended an open day. Given that the parties have equal shared parental responsibility, it would have been appropriate for the Mother to have discussed with the Father beforehand that she was taking X on a tour of or open day at C School, so that the Father could have suggested that a similar even occur for the high school he would have been or might have been contending for, namely B High School. To the extent that there was some evidence that the COVID situation has meant that B High School has not had a general open day, some arrangement could have been made for X to be shown around that school. COURT’S CONSIDERATION OF SCHOOLS This court will not determine that one school is better than another in a general sense. In legal and practical terms including on a public policy consideration, I think that such a decision would be quite inappropriate. Further, the court would not have any view for or against public education versus private education. In this case, the two high schools which these two boys may attend are of high quality. They have an excellent reputation in the City E community and across North Queensland for the sporting prowess of their students. I am not aware either from the evidence given or generally, that there is any criticism of the academic qualities of each school and its teachers, nor of the results achieved. Further, each school has significant support for students, personally and for their education. I am not persuaded that the various resources for students provided by C School and referred to in the Mother’s evidence, would not be available at B High School. DECISION FOR CHILDREN This case is quite finely balanced. The proposal by each parent about where their sons should attend school, was reasonable and appropriate according to the relevant evidence. There did not seem to be any point scoring for the two schools which are at the heart of the courts determination. I refer to two schools although the Mother proposed as an alternative to C School, H School. That school did not feature in any significant way in the evidence or cross-examination and its facilities both academic and sporting were not subject of detailed evidence. In my view, the boys should attend B High School. I have come to that view for the following reasons:(a)The boys’ step-siblings in the Father’s household (the children of his partner) attend there and as I understand it, some other persons the boys know have attended there or do attend there. (b)The step-siblings of the boys can be of important assistance to them, showing them around a large school and advising who to speak to should the boys encounter any difficulties. This may be especially helpful for Y if he does have ADHD. This guidance is in addition to the step-siblings themselves providing support for X and Y. Having two older students at the school when children take the significant step into secondary education is in my view, a significant positive feature. To the extent that Ms Stocks said that the step-siblings will have finished secondary school in a few years’ time, it is the next couple of years and in particular the first year for each of the boys, which will be the most important with respect to this aspect.(c)There will be no real inconvenience for the Mother in taking the boys to and from B High School. (d)There will be no inconvenience for the Father (he will have the longer drive) in the boys attending B High School as he will be taking his step-children there. (e)To the extent that X chose C School, this may have been caused by his attendance at an open day there whereas he did not have the opportunity to have a similar impression of B High School. Further, the Father’s view is that X was unfairly influenced towards C School. (f)Although the Mother would be disappointed and to some extent rightly so, that the Father has not carried out the terms of paragraph 12 of the parenting plan signed on 2 February this year, the Father was not obliged absolutely to do this. The parenting plan was nevertheless an important part of the Mother’s evidence. (g)To the extent that X may have chosen C School because some friends from a former sports teams are going there, my view is that X appears to have been able to keep in contact with those boys, given that he does not play sports now but remains friends with them. Further and more importantly, one assumes that a significant number of his present school friends at B Primary School will be likely to go to B High School.(h)The parents must have made a joint decision or at least agreed at some point, to send their sons to B Primary School. Commencing school would have occurred after separation. It is not necessarily the case that students at B Primary School would automatically attend B High School, although I imagine that a considerable number do. (i)There is no doubt that B High School and C School offer a wide and excellent choice of school subjects and sporting opportunities, together with all of the necessary physical facilities and well trained professional and sporting staff. (j)Similarly, each school would have available for its students, counsellors and other staff who are able to deal with medical/behavioural issues (if this is the case for Y) or personal problems that may arise for either boy from time to time. (k)The boys do not appear to come from a religious family background. (l)The Mother may be overly optimistic in her view that she will be able to pay school fees for years into the future. Her present financial circumstances with her partner do allow for this. SECTION 60CC