Carmody & Strauss
[2021] FCCA 2059
•24 August 2021
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
These proceedings are with respect to the children X born in 2010 (now aged 11) and Y born in 2012 (now aged 9).
The Mother is Ms Carmody. She is represented by Ruhl Family Law Centre.
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.
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.
For the Respondent Father, his documents are the Response and Father’s Affidavit filed 6 August 2021.
The Mother’s application was dealt with in two parts, as follows:
(a)By reference to the Mother's Amended Initiating Application filed 15 July 2021, the Mother sought an order that the child Y attend upon a paediatrician for the purpose of obtaining a second opinion in relation to a diagnosis of ADHD;
(b)The Mother seeks that both boys attend C School.
In his Response filed 6 August 2021, the Father agreed to Y attending on a paediatrician for a second opinion about the ADHD diagnosis. The Father further seeks in his Response that both boys attend B State High School.
What followed from the above is that on the return date when the matter was listed for hearing namely 6 August, there was agreement between the parties and a consent order was made, that Y attend upon a paediatrician for the purpose of obtaining a second opinion in relation to his ADHD diagnosis. That diagnosis was by Dr D and the Order of 6 August provides for a mechanism to obtain a second opinion.
The balance of the Mother's application namely the question of which High School the boys attend, was adjourned for hearing on 16 August. On 16 August the Mother was represented by Ms Stocks of Counsel instructed by Ruhl Family Law Centre. The Father represented himself.
An Order was made by consent on 16 August 2019 and it deals with all parenting matters. That order will remain in force. It includes that the parents have equal shared parental responsibility for their two sons, that the children live with each parent on a week about basis with changeovers on a Monday, the children spending half of school holidays with each parent and all of the usual clauses about communication, medical and educational advice, non-denigration and requirements for the boys when they travel, being included in the order.
As a result, the present application dealing with the two discrete issues will be finalised by a decision of the court now. The parents will have a second opinion soon about whether Y has ADHD. Hopefully they can decide themselves whatever that opinion is, about future parenting arrangements for Y and if necessary, medical treatment for him.
The decision about which High School the boys attend will be the end of that matter, as far as the court is concerned. As mentioned above, the 16 August 2019 consent order will continue.
HEARING
This Judgment is with respect to the school to be attended by the children. The Order made will be a final order in the sense that once the court makes a decision, it will not be necessary for the parties to come before the court again. Hopefully if there are changes in the children's circumstances or the parent’s circumstances in the future such that the school the boys attend may change, that matter will not require further litigation.
PARENTAL RESPONSIBILITY
Ms Stocks of Counsel for the Applicant Mother raised with me that equal shared parental responsibility contained in Paragraph 1 of the Order of 16 August 2019, may not be appropriate in this matter at present. Despite raising this, Ms Stocks confirmed that she did not have instructions to seek a change to that order. I would comment that there was not sufficient evidence before the Court despite what I record in the following paragraphs, to suggest a change to equal shared parental responsibility is required. Separately, there would have to be a consideration of the Rice & Asplund (1979) FLC 90-725 principles.
The Father says at paragraph 10 of his Affidavit filed by leave on 6 August that he has PTSD, depression and anxiety from his service in the Army. He was medically discharged in approximately 2018.
The Father has said that he cannot be in the same room as the Mother or at least, not alone with her. This is too distressing for him. It may be that the Mother has a similar view. Communication between the parties has not been easy. They use the Talking Parents App. I commented at the 6 August hearing that some of the exchanges between the parents were unnecessarily long and there was a tendency to be critical of each other.
Despite my comments above, I would be reluctant to change the August 2019 consent order on the evidence which I have read and heard. Despite the difficulties, the parents do have a basic working relationship for the children. It was a clear in the evidence of each of them that they very much love the children and that love is reciprocated.
There was no Child Inclusive Conference, Family Report or Independent Children's Lawyer in this matter. In my view, the case has not been hindered by not having these things which in many other matters, are of considerable help to the Court. In this case, the evidence of the parties and the fact that there were two discrete issues to consider, meant that the hearing did not really require what may be described as “outside help”.
THE LEGAL POSITION
The Applicant Mother accepts that the court will not make a finding that one school is better than another.
In the Mother's Case Outline, the decision of Federal Magistrate Harman (as he then was) in Ryan & Janosi [2011] FMCAfam 774 is quoted. His Honour stated that it was not the Court’s role to compare schools or make any choice by way of preference of a public school over a private school and presumably vice versa. Further, NAPLAN results while being of some interest to the Court should not be provided significant weight. It has been clear that they are not intended to reflect a “League table” by which schools will be compared. His Honour further commented that “there is no one educational solution as any educator would accept and advocate that will meet any given child’s needs”.
In Whitton & Anor (No 2) [2010] FamCA 1119, Justice Austin ordered that the children of the relationship attend the same school, being a school near the home of the paternal grandmother. The grandmother had been granted equal shared parental responsibility. His Honour found that the children's best interests were the paramount consideration, not the Mother's freedom to enrol the children near to where she may decide to live.
I would comment that in the present case, the distance from the Mother's home (where the children spend each alternate week) to either B State High School or C School, is not great. When the children spend the other week with the Father, his drive to either school is reasonably long by City E standards (20 minutes or more) although this arises from the fact that the Father lives in the small community of Town F, south of City E.
In Dreyfus & Kearney [2010] FamCA 1054 the Family Court held that a dispute as to the choice of school be resolved by the child being enrolled in a school chosen by the child from two schools the Mother allowed him to choose from. Relevant to that decision by Justice Ryan was that the Mother was paying all of the school fees and the Father's failure to pay child support or school fees.
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.
The Father filed and served an Affidavit on Friday afternoon 13 August, the working day before the hearing on Monday 16 August. Objection to that Affidavit being read was taken by Counsel for the Mother. In short, the Father's second Affidavit contained details of a range of sporting and academic programs with the relevant facilities available, at B High School.
MOTHER'S CAPACITY TO PAY
In her Amended Initiating Application filed 15 July, the Mother proposes that the two children attend secondary school at C School, that the Mother and the Father do all acts and things and sign all documents necessary for the child X to be enrolled there and that the Mother be responsible for all school fees and levies associated with the children's enrolment.
On 6 August when this matter was heard regarding the second opinion to be obtained about whether Y has ADHD, the Father raised that the Mother may not be able to afford to pay the school fees for the children.
The Mother was granted leave to read and file an Affidavit on 6 August. That Affidavit said:
(a)Tuition fees at C School for years 7 - 12 in 2021 are $6,190 annually.
(b)There is a 15% discount when a second child attends the school.
(c)The Mother has worked out that on a weekly basis, school fees for X would be $119 and when Y attends, this would increase to $220 with the sibling discount.
(d)The Mother and her partner rent a property. The partner pays the whole of the rent. The Mother and her partner share other expenses. Those basic expenses are $302.50 per week.
(e)The Mother is employed as a manager at a local business. After tax she earns on average $800 per week although this varies as the Mother is paid for the hours she works.
(f)The Mother is studying health care through G University. If exams and placement work occur as she hopes, the Mother will graduate in October 2022. Her commencing pay at present seems to be about $2,850 before tax per fortnight.
In his cross-examination of the Mother, the Father raised that she had not included in her expenses of $302.50 per week, the following:
(a)Club fees when the boys attend there. The Mother said that the boys do not always attend and when they do, the fee is $10.00.
(b)Netflix. The Mother said that she does not pay this.
(c)Store cards.
(d)Expenses for her car. The Mother said that she has a “safety net” for car expenses although she did not elaborate.
(e)Contents insurance.
(f)Medical expenses. The Mother said that this is included in paragraph 4(g) of her Affidavit which says that she pays all expenses that relate to the children. The Affidavit says that her partner contributes to some of those costs from time to time. It is not clear how much the overall cost will be nor that contribution, the Mother being left with any outstanding amount to pay.
(g)University tuition costs and the cost of books and ancillary study expenses. The Mother said that these would be incorporated in her HECS debt.
Despite the Father submitting that the Mother would have difficulty in paying the fees at C School should she separate from her present partner, there is no evidence of this. Firstly, the Mother said during cross-examination by the Father that there was no difficulty in her relationship with her partner, even though he is away working for a lot of the time including being in Victoria. The Mother said that her partner earns approximately $120,000 per year. Second, the Mother said that if she became single with the care of the two children each alternate week, she would make adjustments to her budget including perhaps, having a less expensive rental property.
I do not think that this matter can be taken further. It is obvious that should the Mother separate from her partner, her financial position including the need to accommodate herself and the boys, would become much worse. It may be reasonable to expect that if this occurred, private school fees would become a real burden.
PARENTING PLAN
Prior to the present proceedings being commenced, the parties attended mediation to try to resolve issues about the children. They entered into a parenting plan on 2 February this year. The parenting plan does not purport to be in place of the final consent order dated 16 August 2019 although it makes variations to some of the terms. Specifically, the parenting plan deals with the Father's request that a paediatrician provide a second opinion about whether Y has ADHD, the Father not accepting the opinion of Dr D.
The parenting plan also deals with the childrens’ schooling. Under the heading High School, paragraph 12 of the plan says as follows:
That the parents agree for the Mother to send an email to X's school, requesting for the school counsellor to speak to X in relation to his high school preference and that the school counsellor provides an indication to the parents of X's preference.
(a) That the Mother will copy the Father into this email.
(b) That when the parents receive an indication from the school counsellor, the parents agreed to follow this recommendation and enrol X accordingly.
The evidence is that the school counsellor did speak to X soon after the parenting plan was signed in February this year. X said that he wants to attend C School in his secondary school years. This was communicated to the parents.
The Mother’s view following this is that the Father is bound by the terms of paragraph 12 of the parenting plan which the parties signed on 2 February this year. Looking at the plan strictly, there is a firm argument in favour of this position. However, a parenting plan is not the same as a court order and is not mandatory in the legal sense that an order is.
The Father said in a message to the Mother on the TalkingParents Application that he agreed to the boys attending C School but made the comment that he felt out numbered. I assume this means the Mother and X or both boys, against him.
In more recent months, the Father’s opposition to enrolment at C School has become more clear, hence the present proceedings.
The Father complained that without his knowledge, the Mother took X to an open day at C School last year. This may have influenced him in favour of the school. X did not have the opportunity of attending an open day at B High School. The Father’s view is that the Mother taking X to C School without the Father’s knowledge, may have unfairly influenced X in favour of that school. There was no equivalent opportunity for X to visit B High School.
I am not sure how much weight X would have put on his view of C School following the open day, in his decision conveyed to the school counsellor months later. He said he wants to attend C School because of sports friends. Nonetheless, X probably formed a favourable impression from his tour.
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
Section 60CA of the Family Law Act 1975 provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
In determining what is in a child’s best interests, s. 60CC provides that the court must consider the following matters in determining what is in the child’s best interests. I set these matters out below in sub-paragraphs, with my comments as they apply to this case.
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents. In this regard, X and Y will continue to have a meaningful relationship with both parents as they will continue to live with them on a week about basis.
(b)The need to protect the child from physical or psychological harm from being subjected to or exposed to, abuse, neglect or family violence. I find that both parents have the best interests of their sons at heart. The evidence given by each of them during this hearing made it clear that they want the best outcomes educationally and with respect to sport and other activities, for both boys.
(3)(a)Any views expressed by the child and any factors that the court thinks are relevant to the weight it should give to the child’s views. The decision I am making would appear to be contrary to X’s views. However, I think that X was influenced by his visit to C School while not having the same opportunity to view B High School. Further, X may not have considered that quite a number of his present class members at B Primary School will likely go on to B High School.
(3)(b)The children have a good relationship with their parents. There was no evidence that the children do not have a good relationship with their step-siblings namely the children of the Father’s partner. Those children attend B High School.
(3)(c)Although there have been differences in opinion between the parents, I find that each is able to facilitate and encourage a close and continuing relationship between the two boys and the other parent.
(3)(d)There will be no separation of the children from their parents or other family members.
(3)(e)There will be no significant expense or difficulty for the children attending either of the high schools about which the court is deciding. I say this because the Mother is aware of and offers to pay, the C School fees. I expect that the parents will share equally the boys’ costs at B High School.
(3)(f)I find that each parent has the capacity to provide for the needs of the children. As referred to in this judgment, hopefully the diagnosis about ADHD for Y will be resolved soon and whatever that diagnosis is, the parents can provide for him appropriately.
(3)(g)It appears that the children have matured appropriately to their age. There was no evidence of any issues for the parents in that regard.
(3)(h)The Father identifies as Indigenous. I am comfortable that both B High School and C School are able to provide for cultural and educational matters as identified.
(3)(i)As referred to above, the children have a good relationship with each parent and each parent clearly wants the best for their sons.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Judge Bowrey. Associate:
Dated: 1 September 2021
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