Chan & Phu
[2012] FMCAfam 1300
•6 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHAN & PHU | [2012] FMCAfam 1300 |
| FAMILY LAW – Children – parenting– parenting orders – application to vary earlier orders – interim orders – child’s schooling – what school the child is to attend in 2013 and subsequent years – parental responsibility – equal shared parental responsibility – sole parental responsibility. PRACTICE AND PROCEDURE – Appointment of Independent Children’s Lawyer – where there is an intractable conflict between the parties. |
| Child Support (Assessment) Act 1989 (Cth), s.116 Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 61DB, 64B, 65AA, 65DAA, 68L Federal Magistrates Court Rules 2001 r. 15A.05 |
| Chan & Phu [2010] FMCAfam 1084 Re G: Children’s Schooling [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025 Goode v Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 Re K (1994) 17 Fam LR 537; FLC 92-461 |
| Applicant: | MR CHAN |
| Respondent: | MS PHU |
| File Number: | SYC 1714 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 14 November 2012 |
| Date of Last Submission: | 14 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 6 December 2012 |
REPRESENTATION
| The Applicant: | Appeared in person |
| The Respondent: | No appearance |
ORDERS
The Applicant and the Respondent are to have equal shared parental responsibility for the child X born (omitted) 2001 until further Order.
Order 14A made on 15 October 2010 is suspended until further order.
The Application for Interim Order filed on 5 June 2012 is dismissed.
The interests of the child X born on (omitted) 2001 are to be independently represented by a lawyer under the provisions of section 68L of the Family Law Act 1975 and for this purpose Legal Aid NSW is requested to arrange such representation.
Within fourteen (14) days the parties are to forward to Legal Aid NSW at (omitted), Sydney NSW copies of all Applications, Responses, affidavits and all other documents filed to date for the use of the Independent Children’s Lawyer when appointed.
The Independent Children’s Lawyer is granted leave to issue up to ten (10) subpoenas in this proceeding.
The Application is adjourned to 29 January 2013 for further mention.
IT IS NOTED that publication of this judgment under the pseudonym Chan & Phu is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1714 of 2010
| MR CHAN |
Applicant
And
| MS PHU |
Respondent
REASONS FOR JUDGMENT
This is an Application by the father for orders relating to the parties’ daughter X, who lives with her mother, the Respondent.
On an interim basis, the father seeks an urgent order providing for the child to commence High School at (omitted) in 2013.
The interim Application needs to be seen in the context of the father’s substantive Application, which seeks more extensive final Orders. The proposed final orders are:
a)a variation to Order 14A made on 15 October 2010, which provided for X to attend (omitted) High School with effect from the commencement of the first school term in 2013;
b)if the child is to attend (omitted) School in 2013, an order, which would need to be a Departure Order under the Child Support (Assessment) Act 1989, requiring the father to pay all of the school fees in lieu of periodic payments of child support;
c)an amendment to Order 3.c. made by the Family Court on 23 October 2007 so as to provide that allowance should be made for the fact of a three week school holiday period between the second and third school terms;
d)an amendment to Order 17 made on 23 October 2007 so as to ensure that the child may have regular telephone contact with the father by mobile telephone; and
e)an amendment to Order 25A made on 15 October 2010 to provide that the father should hold the child’s passport (this should read Order 5, as that is the Order that relates to the child’s passport).
The mother has filed a Response opposing the orders proposed in the Application, seeking only final orders, as follows:
1. That the mother only be allowed to make decisions regarding X’s welfare and schooling, applicable immediately.
2. The father is no longer permitted to engage the mother or X in discussions relating to the appropriateness of any high school.
3. The father is not permitted to take X to any high school with the objective of swaying her opinion as to the suitability of the school for her, nor to attend an interview.
4. The father is to undergo a psychological assessment and counselling in an attempt to curb his extreme narcissistic tendencies and unhealthy manipulations towards X and myself.
5. Reduce the father’s fortnightly access to X. He is to return her on Sunday mornings rather than to school on Monday mornings.
6. Change the regions where X is not permitted to travel only to the rating “Do not travel”.
7. Telephone contact to be on alternate weeks only, normally Thursdays, unless there are intervening circumstances, at which time contact will be on Fridays.
8. That the father reimburse the mother for any fees required to be paid as a result of this action, and that he pay all future fees related to any court actions he instigates.
Background
There have been previous proceedings between the parties relating to parenting orders concerning their child X, who was born on (omitted) 2001 and is therefore eleven years and nine months old.
On 23 October 2007 in the Family Court at Sydney, Le Poer Trench J made orders providing that:
a)The parties would have equal shared parental responsibility for X;
b)The child would live with the mother;
c)The child would spend time with the father on alternate weekends, during school holidays, on Father’s Day, for two hours on the child’s birthday and on other occasions;
d)Specific arrangements for overseas travel;
e)An order relating to the child attending school in the 2009 school year; and
f)Other ancillary orders.
On 15 October 2010, after the father had brought an Application claiming that the mother had contravened several of the Orders, this Court made Orders varying the earlier Orders (Chan & Phu[1]). Those Orders:
a)discharged Order 14 and replaced it with Order 14A which stated:
The child X is to attend (omitted) High School with effect from the commencement of First Term in 2013 and the parties are to do all things necessary to ensure her enrolment in that school.
b)discharged Order 15 and replaced it with Order 15A concerning the Christmas school holidays;
c)discharged Order 18, which contained arrangements for Christmas which had been superseded;
d)discharged Order 25 and replaced it with Order 25A which contained arrangements about taking the child overseas;
e)provided that the mother would retain the child’s passport in her possession except when the passport was required by the father to travel with the child outside Australia; and
f)made specific arrangements about Easter.
[1] [2010] FMCAfam 1084
On 5 June 2012 the father commenced these proceedings. The Application was returnable on 6 August 2012. The father attended Court but the mother did not. The parties were directed to attend a Child Dispute Conference with a family consultant. The Child Dispute Conference took place on 25 September but no agreement was reached.
The mother did not attend Court when the matter was mentioned on 8 October 2012. The application was listed for interim hearing on 14 November and the mother was advised that if she did not attend Court on the next occasion then Orders may be made in her absence.
The mother contacted the Court’s Enquiry Centre on the evening of 12 November, seeking to attend the Interim hearing by telephone, giving ass her reason a meeting at her workplace at 11:30 am. Leave was not granted.
Evidence and Submissions
The Applicant relied on two affidavits, affirmed on 5 June and 3 August 2012. He also made an oral submission.
Although the mother did not attend Court, she had filed an affidavit affirmed on 29 July 2012 and this affidavit was taken into consideration.
The only Orders sought by the father on an interim basis are those relating to the child’s schooling in 2013. Similarly, the only Orders sought by the mother in her Response that relate to the schooling issue are her proposed Orders 1 to 3 inclusive, and possibly proposed Order 4, requiring the father to undergo a psychological assessment and counselling.
It is the father’s case that he was married eight years ago and his wife Ms S has been involved in the child’s life since she was a year old.
The event that appears to have precipitated this Application is that the catchment area for (omitted) High School has changed and the only way that X would be able to attend the school is to pass a selective entrance examination[2]. Otherwise, X’s residence puts her in the catchment area for (omitted) High School, which is a school that the father does not want the child to attend.[3]
[2] Affidavit of Mr Chan 5.6.2012 at paragraph [8]
[3] Ibid at [9]
The father deposed that “attempts to engage with the mother regarding looking at alternative schools have been unsuccessful”[4].
[4] Ibid at [10]
The father attaches (or annexes) copies of emails by the mother in which she rebuffs his emailed proposals about schools for the child:
Go fuck off. There is no we in this equation. I will make the decision with X and will inform you of what the decision is. You never think of anyone but yourself and I am not interested in your pathetic views. Threaten all the court action you want loser. I will not be discussing this again.[5]
End conversation, (omitted) position will lapse. You do not make this decision, its about time you realised that. (omitted) high is default and looks like that’s where she will go. You have no fucking right to send her to fucking Tasmania, you have now lost all hope of having input into this decision. Go fuck off back to fairyland loser. No court will support you in this.[6]
Fuck you. We will need to go to court just so she never needs to see you again loser. X and I will be making the decision, go crawl back into your hole. Like last time, you will lose this decision so you may as well give up now. I have told you before and I will tell you again – this conversation is over.[7]
Go fuck yourself loser. It is extremely evident that your only motivation is to stop paying child support as you know that X has no intention or desire to ever live with you. Conversation about schools is over. X and I make the decision. Go to hell.[8]
[5] Ibid Attachment 4 email dated 29.2.2012
[6] Ibid Attachment 7 email dated 11.3.2012
[7] Affidavit of Mr Chan 5.6.2012 Attachment 9 email dated 8 April 2012
[8] Ibid Attachment 12 email dated 22.3.2012
The father goes on to depose that the child has been accepted into (omitted) School, which he regards as the best option for the child’s schooling. He states that:
I will pay all costs for a private school education but can only afford to do this in lieu of child support payments (currently $14,000 pa).[9]
[9] Ibid at [13]
The father also states that, as it appears to him that the mother’s opposition to X’s attending a private school stems from her unwillingness to forgo payments of child support, he would be agreeable to amending “the current custody arrangements”.[10]
[10] Ibid at [16]
The balance of the affidavit refers to matters of telephone contact and overseas travel, which are not relevant to the Application for an interim order.
In his later affidavit affirmed on 3 August 2012, the father sets out in more detail why he believes (omitted) would be the best option for X and he reiterates his willingness to meet the costs of the child’s schooling, which he estimates at between $23,000.00 and $28,000.00. He also sets out reasons why he has not suggested (omitted) School (too expensive), (omitted) School, a boarding school in (omitted) (too difficult), and (omitted) Grammar School (he could not afford both the school fees and the currently child support payments).
The mother affirmed an affidavit on 29 July 2012 in which she confirmed that she had been notified by the Department of Education that it was intended to change the boundaries of (omitted) High School and that the child’s local school would become (omitted) High School. She deposed that, following the announcement of the boundary changes, she enrolled X into the Selective Schools exam process. X completed the exam and the mother received advice that the child had been placed on the reserve list for:
a)(omitted) College, (omitted) Campus; and
b)(omitted) High School.
The mother deposed that she attended an interview with X at (omitted) Grammar School. Whilst the child was accepted, the mother sought confirmation from the father that he was prepared to pay the entire school fees, as it was not within her budget:
Clearly, he was not, and I allowed the position to lapse.[11]
[11] Affidavit of Ms Phu 29.7.2012 at [3]
The mother also stated that the child had been offered a position at (omitted) High School which she had accepted. The mother went on to depose:
I have not enrolled X at (omitted) High School, nor will I be seeking a position for her there[12].
[12] Ibid at [5]
The mother also made it clear in her affidavit that the child’s preference was still to attend (omitted) High School. She had auditioned but was unsuccessful, much to her disappointment. She stated that she was investigating the possibility of moving her residence within the boundaries of the school’s catchment area and “how I do this financially and practically is not an issue for her father or the courts…”[13]
[13] Ibid at [8]
The mother sets out in her affidavit her disapproval of the father’s actions regarding the child’s schooling, which she describes in the strongest of terms:
His manipulations of X are irresponsible and reprehensible. His actions are evil. He is using her as a pawn without any consideration of her feelings, wellbeing, nor her relationship with me…
…his emails, they are poorly disguised attempts at intimidation, control and antagonism.
The criticism of the father continues in this vein throughout the affidavit.
The father told the Court that if X were to attend (omitted) School, she would be able to travel to school by bus. He thinks that the school would be better for her and he would hope that the mother would see the benefit to the child. He said he was happy to send X to (omitted) Grammar School but could not afford to pay the school fees in addition to paying the regular child support payments.
The Relevant Law
An order about the school to be attended by a child is a parenting order (Family Law Act 1975, s.64B(2)). Section 60CA of the Act requires the Court, in deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration (see also section 65AA). A court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of s.60CC of the Act.
The primary considerations are set out in s.60CC(2), being the benefit to the child of having a meaningful relationship with each parent and the need to protect the child from physical or psychological harm from abuse, neglect or family violence. There are additional considerations set out in s.60CC(3), including a consideration of any views expressed by the child, although a child is not required to express his or her views in relation to any matter (s.60CE).
Subsection 61DA(1) requires the Court, when making a parenting order, to apply a presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in cases where there are reasonable grounds to believe that a parent has engaged in abuse or family violence (s.61DA(2)). The presumption may be rebutted by evidence that satisfies the Court that applying the presumption would not be in the child’s best interests (s.61DA(4)).
When the Court is making interim orders, as is the case here, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order (s.61DA(3)). Section 61DB provides that if there is an interim parenting order in relation to a child, the court must, in making a final parenting order, disregard the allocation of parental responsibility made in the interim order.
If the presumption of equal shared parental responsibility does apply, the Court is required by s.65DAA to consider whether it is both on the child’s best interests and reasonably practicable for the child to spend equal time with each parent (s.65DAA(1)), or, failing that, to spend substantial and significant time with each parent (s.65DAA(2)).
Where parents disagree about which school their child should attend, the Court must consider the best interests of the child. There is no presumption in favour of the parent with whom the child lives, but that is not to say that the reality of the child residing predominantly with one parent has no relevance (see Re G: Children’s Schooling[14]).
[14] [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025
Conclusions
The Application is an Application for an interim order about one issue, the school at which this child should attend in 2013. The mother has raised a number of issues which should more properly be the subject of a final hearing, where evidence can be tested by cross-examination. This is usually not possible at an interim hearing, especially, as in this case, where one party has elected not to attend personally because of her work commitments. The Court can only rely on the affidavit evidence and deal with those affidavits at their face value, which acts as a serious limitation on the ability to make findings on contested issues of fact:
…the procedure for making interim parenting 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 is should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings of fact are not possible.[15]
[15] Goode v Goode [2006] FamCA 1346; (2000) 36 Fam LR 422; FLC 93-286 per Bryant CJ, Finn and Boland JJ at [68]
Here, it is clear that there is a significant dispute about the high school which the child X is to attend in 2013 and in subsequent years. There is also significant antagonism between the parties. The mother’s hostility towards the father has been expressed in vitriolic email communications to him in reply to his emails which, on their face, would hardly appear to justify the ferocity of the mother’s replies, which include personal abuse. No such abusive terms appear in the father’s emails to the mother.
The mother claims that the father’s actions constitute “bullying” and “intimidation”, although the material before the Court does not appear to support such a claim. If the mother wishes to establish these claims, she will need to do so at a final hearing, where her evidence can be tested by cross-examination.
The mother in her Response seeks an order for sole parental responsibility, although not in such specific terms. Currently, the parties have equal shared parental responsibility. This presumption applies when the court is making an interim order (s.61DA(3)), unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied in making that order. I do not consider that it would not be appropriate in the circumstances for the presumption to apply. In affirmative terms, the presumption that it is in the child’s best interests for her parents to have equal shared parental responsibility for her will remain. As provided by s.61DB, the question will be considered at a final hearing without regard to the allocation of parental responsibility made at this time.
Whilst I have considered the matters under s.65DAA, I am not satisfied that it is in the child’s best interests to order that she should spend equal time with each parent or to make any order at this stage varying the amount of time she spends with either parent. The question should be considered at a final hearing once the evidence can be tested and the child’s wishes ascertained.
The best interests of the child remain the paramount consideration. The need for a change to the parties’ plans for the child’s high school to be reconsidered arises because the Department of Education and Communities changed the boundaries for the catchment for (omitted) High School. This makes Order 14A, made on 15 October 2010, unworkable at this stage, unless the mother changes her residence to a place within the new boundaries. There is no agreement on another school. Order 14A will therefore be suspended until further order.
It would not be practicable or in X’s best interests to make an order against the wishes of the mother that X should commence attending high school at (omitted). That is not to be interpreted as any criticism of the school or any finding that it would not provide this child with a sound education.
Where the parties are as opposed as these parties are over a decision about the child’s school, the Court would not be acting in X’s best interests to impose on the mother, with whom the child predominantly resides, a decision that she should attend a school next year that does not accord with the mother’s wishes. That is so, even if the father were to pay all the school fees, as the mother is implacably imposed to such an arrangement if it were to be conditional on an order that the current payments of child support were to cease. This would require an application for a Departure Order under s.116 of the Child Support (Assessment) Act 1989. Consequently, the Application for an interim order that the child X is to commence to attend the (omitted) School in 2013 will be refused. It will be up to the mother to enrol X in a suitable high school and inform the father of the details.
The other matters raised in the Application and the Response are more properly the subject of a final hearing, which will no doubt require a family report to be prepared.
It is clear that there is a long-standing and intractable conflict between the parties over the proper arrangements for their daughter. Neither party is legally represented. These circumstances meet the criteria for the appointment of an Independent Children’s Lawyer under s.68L of the Act (see Re K[16]). It appears that the child’s interests ought to be independently represented by a lawyer, and an order will be made to that effect. Legal Aid NSW will be requested to arrange the representation and the parties will need to forward copies of all relevant documents to Legal Aid NSW within 14 days for the use of the Independent Children’s Lawyer when he or she is appointed.
[16] (1994) 17 Fam LR 537 at 555 & 558; FLC 92-461 at 80774-5 per Nicholson CJ, Fogarty and Baker JJ
The Application will be listed for mention early in the New Year, once the Independent Children’s Lawyer is appointed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 6 December 2012
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