Charlton and Hinds

[2015] FCCA 3351

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHARLTON & HINDS [2015] FCCA 3351

Catchwords:
FAMILY LAW – Children – schooling arrangements – choice of high school.

Legislation:

Family Law Act 1975, ss.60CA, 60CC

Cases cited:
Re G: children’s schooling (2000) Fam CA 462
Ubilla & Knightley (2010) FMCAfam 382

Applicant: MS CHARLTON

Respondent: MR HINDS

File Number: ADC 2933 of 2012

Judgment of: Judge Kelly

Hearing date: 7 August 2015

Date of Last Submission: 7 August 2015

Delivered at: Adelaide

Delivered on: 14 August 2015

REPRESENTATION

Counsel for the Applicant: Ms Vellotti

Solicitors for the Applicant: DeGaris Lawyers

Counsel for the Respondent: Ms Kari

Solicitors for the Respondent: Clelands

ORDERS

1. The parties do all things necessary to enrol the children X born (omitted) 2006, Y born on (omitted) 2007 and Z born (omitted) 2009 for their secondary education at either (omitted) School or (omitted) School or such other co-educational high school as the parties may agree.

2. The parties contribute to the costs of the children’s education as agreed between them on the basis that the father will meet the costs of the ongoing tuition fees and any compulsory school levies imposed by the children’s school and other educational costs and expenses will be shared on such basis as may be agreed between the parties.

3. In the event the parties are unable to reach agreement in relation to sharing the further educational expenses by January 2018, then the children X, Y and Z shall be enrolled at either (omitted) High School or (omitted) High School.

4. All proceedings are dismissed as finalised.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2933 of 2012

MS CHARLTON

Applicant

And

MR HINDS

Respondent

REASONS FOR JUDGMENT

1. Before the Court is the parties’ competing applications in relation to the one remaining aspect of their parenting dispute relating to the schooling arrangements for their three children as they move into their high school education in the years ahead.

2. I will deliver these reasons orally because, having reached agreement about every other parenting issue before the Court, the parties are entitled to receive the Court’s decision on this final issue promptly, so they can conclude this process as quickly as possible. 

3. These proceedings commenced in relation to parenting and financial issues in 2013.  Despite this lengthy history before the Court, it is to the credit of both parents that they were able to resolve virtually all parenting issues between them earlier this year and have also resolved financial issues. 

4. It is a testament to the parties and to the sound advice they received from their legal representation, they were able to resolve almost all outstanding issues by way of consent orders last week, on 7 August 2015.  So the remaining issue today is limited to the children’s future schooling.

5. By way of background, the parties have been in a relationship since about 2003.  They married in (omitted) 2004.  Their three children are X, who is nine years old, Y – or Y – who has just turned eight years of age and Z who was born in 2009 and is six years old.  The parties separated in 2011 when Z was only two years old.

6. The children have been living in a form of shared care since separation or very shortly after their parents separated.  Initially the care arrangement was a five/five night, three/three night pattern which was based in part upon the mother’s working arrangements but also reflected Z’s very young age and the concern of both parents not to have the children spend a long number of nights away from either parent.

7. The parents agree that the children will complete their primary school at (omitted) Primary, but have been unable to agree upon the choice of high school.  It is sad to see that the parents have faltered on this topic, perhaps one of the most significant decisions facing any parent.  The reality is that if the parties had remained married then they would still have had to resolve the issue, one way or another. 

8. The reality and consequences of separation has made those negotiations more difficult, which reflects the significance of secondary school education in our society and the significance of this decision.  Handing the decision-making responsibility over to the Court is clearly each party’s least preferred outcome, but it remains the final option, when parents are simply unable to agree it for themselves. 

9. To briefly outline each party’s position, the husband seeks to have the children attend at two private schools in Adelaide where he and members of his family have previously attended. He proposed that X and Y should be enrolled at (omitted) School where he, his father, grandfather and great-grandfather all attended.  Clearly there is a strong family tradition that he wants to maintain.  He proposes that Z should attend at (omitted) School where the mother and her sisters attended, as did his mother and his sisters.

10. It is not just the importance of the family tradition that the father is relying upon.  He says both (omitted) School and (omitted) School will provide an excellent education for the children and offer a qualitatively better pastoral care environment as both schools – certainly (omitted)’s, in any event – have embraced the concept of ‘wellbeing’ as a core strategy within their school environment.  The father considers this approach will augment the very good education that is already otherwise offered by the schools. 

11. Turning to the mother, she says that she cannot afford to pay for private schooling and that what was an achievable outcome during their married life together is no longer affordable.  The mother has a more modest income than the father and says she cannot meet the costs of three children at private schools. 

12. She proposes the children attend one of two state schools. Her preferred option is for the children to attend (omitted) High School, which is a school that has an excellent academic reputation and, as I understand it, has also adopted the ‘wellbeing approach’ within the educational philosophy offered within the school.

13. The second option is (omitted) High, where the children are guaranteed a place, as their father’s home address is within the zone for that school.  The mother would prefer the children attend at the same school, partly for the practical convenience of delivering and collecting the children to and from school, but also because she considers the children would provide some level of emotional support for each other, a factor that she considers is significant. 

14. The mother is not opposed to private school education, in principle. She views co-education as the best option for her children rather than a single-sex education. If the father is prepared to meet all of the associated costs, she would be content for the children to attend a co-educational school such as (omitted) School or (omitted) School. 

15. The father conceded that all of the potential schools in consideration will provide a quality education for the children, but considers that there are advantages for the three children in attending at single-sex high schools.  He further argues that, if it is a choice between a selection of private schools, then the family tradition attached to both (omitted) and (omitted)’s increases the likelihood that the children will be accepted for enrolment.  In the course of the hearing the father indicated that he was prepared to meet all the costs associated with the children’s enrolment at (omitted)’s and (omitted), because he values the quality of the education the children’s attendance at those schools so highly. 

16. The father was not making that offer in relation to the fees and expenses associated with other private schools.  This is not to say he would not be willing to contribute to these costs in the long term, but that is not his proposal before the Court today.  The father is well within his rights to focus his financial support upon those two schools that he considers will be most advantageous for the boys and for Z.  He should not be criticised in that regard. 

17. The father argues that the mother had never raised the possibility of state school education for the children during the marriage.  It is unclear whether the mother challenged that, or not, but she gave evidence to the effect that if they did not discuss state schooling as a possibility, that was because she knew the father’s view was unchanging and would prevail.  I appreciate this may not reflect the father’s recollection of the co-parenting dynamic between them during their married life together.

18. The mother concedes that in 2013 her solicitors wrote to the father’s solicitors indicating that she still supported private schooling for the children.  The fact that she is putting forward two private schools as a secondary option indicates that she is not opposed to private schooling in principle. 

19. At a practical level, in the last twelve months the mother has moved to live in (omitted).  No matter which school the children are attending, she will have to drive from (omitted) to somewhere in the Adelaide metropolitan area and juggle that commitment on her way to work.  This is less of an issue for the father, as he lives in the (omitted) suburbs of Adelaide.  The mother also has no immediate family support to assist her in that regard whereas, of course, the father has family who live in the Adelaide area and he has their active support when needed.  The demand of transporting the children to and from school is a relevant factor for the mother, but it does not weigh heavily in my decision making.

20. In terms of the relevant legal principles, in any parenting decision the children’s best interests are the paramount consideration, pursuant to section 60CA of the Family Law Act. Section 60CC set out the criteria that must be considered. The parties have consented to an order for equal shared parental responsibility and as I have said, it is disappointing that at this first, most significant decision about their children’s welfare, they have been unable to reach agreement.

21. I wonder whether it may have benefitted the parties and the children to have delayed this decision and to see if the parents could have come to a meeting of minds, with the passing of time.  Equally, I appreciate that this family has spent two years trapped in the Court system.  The idea of coming back to Court because they were unable to reach agreement, the idea that the children would have to cope with their parents coming back to Court, may simply seem untenable to the parties. 

22. Both parents’ proposals are sensible and child-focused and there is no criticism to be made of either party in that regard.  Both Counsel referred me to the relevant authorities, particularly the Full Court decision of Re G: Children’s schooling[1] and other more recent decisions.  However, as with most cases before the Court, my decision turns on the facts of the case before me. 

    [1] Re G: Children’s schooling  (2000) FamCA 462

23. While re G and other decisions set out the relevant principles, they can often be distinguished on the facts.  In Ubilla & Knightley[2] FM  Brown (as he then was) was dealing with a proposal to change the children’s current schools, whereas here, of course, the parents have agreed the children will complete their primary schooling at (omitted).  It is their future schooling that the parents have been unable to resolve.

    [2] Ubilla & Knightley  (2010) FMCAfam 382

24. Equally, in this case, the children are in each parent’s care on an equal-time basis, so there is no greater or lesser impact on one parent over the other in terms of travel.  Again, my decision must be guided by my assessment of the children’s best interests.

25. Referring to the s.60CC criteria, my discussion will be brief because so many of those criteria relate to issues such as the child/parent relationship, or parenting capacity, and there is no criticism to be made of either parent on any of these criteria. The children have a strong and loving relationship with each parent and feel deeply cared for and loved by each of their parents.

26. It is fair to say that these three young children are blessed amongst the children I see in this Court day to day and week to week; they are blessed by virtue that their parents have been able to reach agreement about most of their future parenting arrangements, but also to have two high-functioning, loving and competent parents to care for them as they grow up.

27. Both parents are clearly very involved in the children’s care and take their decision-making responsibilities very seriously.  Both parents are able to provide financially for the children.  The mother says that her income does not allow her to meet the additional costs of private schools and her income is certainly much lower than the father’s income.  The father pays ongoing child support.  The father has made an offer to pay all the costs associated with the children’s enrolment at the schools of his choice.  But in a general sense, both parties are providing financially for the children.

28. In terms of the parties’ parental capacity and their attitudes to parental responsibility, there is no criticism to be made of either parent.  Both parents are putting forward sensible proposals regarding the children’s future schooling, proposals that focus on what they consider to be the children’s best needs.  Equally, there is no doubt that, whatever the Court’s decision, both parents are very well equipped to meet the children’s emotional and intellectual needs and I am confident that they will both support the children’s ongoing education, no matter which school the children may be attending. 

29. In terms of the children’s lifestyle and traditions, clearly, from the father’s point of view, the children’s enrolment at (omitted)’s is an important tradition that has been passed down across generations in his family.  This sense of family tradition plays very strongly in his desire for X and Y to attend at (omitted)’s, but it is also an important factor for him in support of Z’s enrolment at (omitted).  The father places significant weight on this family tradition going forward through his children into the next generation, to the point where he is prepared to meet all of the fees and associated expenses into the future.

30. The Court heard a great deal of evidence about where each school is located, the distance to be travelled and the availability of a school bus from the (omitted) area down to town, which was offered by the father’s nominated schools.  Both parties gave evidence about the travel involved from the mother’s home in (omitted), whether the children will be attending at the same campus, or separate campuses if enrolled at (omitted) High and whether the children were more likely to be accepted for enrolment at (omitted)’s or (omitted), rather than (omitted) School or (omitted) High.  The father analysed the number of years the children will actually be attending at the same school campus, once X moves on to high school in 2019.

31. While that evidence was all relevant, at the end of the day much of it felt a little like window dressing.  Each party was presenting evidence and arguments that would support their choice of school or explain why they felt so strongly about that school, but everyone agreed that the children would receive an excellent education at any of the nominated schools.  I repeat, the Court has absolute confidence that wherever the children are enrolled, both parents will fully support their ongoing education achievements.

32. The difficulties associated with travelling to and from (omitted) are issues that the mother will no doubt resolve sensibly, without any great drama.  Whether the children are attending at two separate campuses, whether they are at (omitted)’s or whether they are attending at some other school, I am quite sure that both parents will manage the day to day practicalities and that the children will flourish and achieve an excellent education, wherever they attend. 

33. It is fair to say that none of the s.60CC factors are ‘game changers’ in terms of my decision today. So the Court returns to first principles and to my assessment of the children’s best interests. In that regard I return to s.60CC(3)(b) and the importance of the children’s sibling relationships with each other. The mother argues that attending at the same school will allow the children to provide emotional support to each other when needed. Clearly, when children are navigating their way through a fairly acrimonious parental separation and Court proceedings, the relationships between the siblings can sometimes provide a vital source of support for one child or another.

34. In any event, my focus remains the best interests of the children.  Within that, the children’s relationship with each other, as opposed to the strength of their relationship with each parent, is significant, in terms of the support the children provide for each other as they cope with their parents’ separation.

35. I accept that the parties have managed their co-parenting relationship reasonably well.  They have not descended into unpleasant arguments at handovers and have endeavoured to protect the children from their parental disputes.  This present dispute about school enrolments is a good example.  Neither parent comes to the Court saying, “Y has told me he wants to go (omitted),” or “Z doesn’t like the school uniform at (omitted).” 

36. Nonetheless, it is inevitably a difficult emotional landscape for children as they navigate their way from one parent’s home to the other.  The school environment can often represent safe, neutral territory for the children, free from any sense of divided loyalties.  Even if the children are not all attending the same school for a very long period, as argued by the father, a shared school environment can be significant for them, particularly for the younger two children as they follow in their older brother’s footsteps. 

37. As the youngest child, Z may not be attending at the same school with her older brothers for many years, but there will be a sense of connection with the school campus, attending school events with her older brothers as they have their speech nights, or sports days, or school fetes.   The three children may have a stronger sense of family connection with each other if they are able to attend at the same school. 

38. I weigh this up against the father’s very strong desire for the children to attend at schools which are symbolically and traditionally very significant to him and indeed, to his whole family.  There is not a great deal to advantage one of these factors over the other.  At the end of the day, I conclude that the advantage for these three children in sharing the one school environment is the factor that determines this very finely balanced decision in favour of the proposals put forward by the mother. 

39. Clearly the principle of private school education is very important to the father, and for that reason the Court’s decision will be that the children be enrolled at either (omitted) School or (omitted) School.  There are financial implications that flow from that decision and the father is entitled to consider his position in that regard.  The Court will order that the children attend at either (omitted) School or (omitted) School, provided that the parties can agree about their financial contributions in that regard.  If no such agreement is reached by a specified date, then the children will attend a public school.

40. Finally, for the benefit and reassurance of the parties, I note that I attended a single-sex school and enjoyed my school life there. I have no prejudice or bias regarding public schooling versus private schooling, or favouring single-sex versus co-educational schooling. 

1. I also note for the transcript that the mother unexpectedly arrived a little late today and therefore she has not heard all of the Court’s reasons just delivered. The Court delayed the hearing for a short period, and her solicitor who is attending by telephone today, assured the Court that she would advise her client of the outcome.

2. I now make orders as published at the commencement of these Reasons.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Kelly

Date:       21 December 2015