Clair and Gall
[2011] FMCAfam 294
•25 January 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CLAIR & GALL | [2011] FMCAfam 294 |
| FAMILY LAW – Children – whether to sanction the children to be away from school for the purpose of a holiday. |
| Education and Training Reform Act 2006, ss.2.1.1, 2.1.2, 2.1.3 |
| Applicant: | MR CLAIR |
| Respondent: | MS GALL |
| File Number: | DGC 4282 of 2010 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 25 January 2010 |
| Date of Last Submission: | 25 January 2010 |
| Delivered at: | Dandenong |
| Delivered on: | 25 January 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr T. Weerappah |
| Solicitors for the Applicant: | Bayside Solicitors |
| Counsel for the Respondent: | The Respondent appearing in person. |
ORDERS
The matter be adjourned to 25 May 2011 at 10.00 a.m. in the duty list at Dandenong for mention.
The interim application filed 16 December 2010 of the father be otherwise dismissed.
Family Counselling
Pursuant to section 13C(1)(a) of the Family Law Act 1975, the parties attend family counselling to attempt to help them resolve their issues relating to the care of the children [X] born [in] 1999 and [Y] born [in] 2000 (‘the children’) and any relevant personal and interpersonal issues, and that:—
(a)the family counselling occur at an organisation as nominated by the Senior Family Consultant of the Federal Magistrates Court of Australia (Melbourne Registry); and
(b)the parties attend at the organisation at such times as requested by the organisation.
Post Separation Parenting Course
The applicant and the respondent attend and complete, as soon as practicable, the Parenting Apart post separation parenting program delivered by groupwork, involving at least 3 separate sessions, ("the Program") at Family Relationships Centre and:
(a)do everything reasonably necessary to enrol in, undertake and successfully complete the Program;
(b)pay all costs associated with their participation in the Program;
(c)attend and complete, as soon as practicable, any further course or program recommended by the nominated organisation; and
(d)provide a copy of the certificate of completion of the Program/s to the other parties or their solicitors.
ORDERS BY CONSENT
UNTIL FURTHER ORDER THAT:
The parties have equal shared parental responsibility in respect of the children of the relationship [X] born [in] 1999 and [Y] born [in] 2000 (“the children”).
The children live with the Mother.
The children spend time and communicate with the Father as follows:
(a)Each alternative weekend from the conclusion of school Friday until the commencement of school Monday morning during Term 1 2011;
(b)Commencing Term 2 2011, each alternative weekend from the conclusion of school Friday until the commencement of school Tuesday morning;
(c)For one half of each of the first, second and third term school holiday periods, being the second half in each year;
(d)Each alternate Easter period (Good Friday through to Easter Monday) commencing 2012;
(e)For two weeks over the long Summer school holiday period as agreed between the parties;
(f)From 4:30pm on Christmas Day until 7:00pm on Boxing Day in each year;
(g)On the children’s and Father’s birthdays at times as agreed between the parties;
(h)Each Father’s Day from 4:30pm on the Saturday preceding Father’s Day until 4:00pm on Father’s Day;
(i)By telephone during reasonable hours; and
(j)Such further and other times as agreed between the parties.
In the event that Mother’s Day falls during time spent with the Father, then such time be suspended from 4:30pm on the Saturday preceding Mother’s Day.
In the event that the children’s birthdays or the Mother’s birthday falls during time spent with the Father, then such time be suspended as agreed between the parties.
AND THE COURT NOTES THAT:
A. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included these orders..
IT IS NOTED that publication of this judgment under the pseudonym Clair & Gall is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
DGC 4282 of 2010
| MR CLAIR |
Applicant
And
| MS GALL |
Respondent
REASONS FOR JUDGMENT
(As revised from transcript)
This is an application concerning two children, [X] and [Y], born [in] 1999 and 2000. The children presently live with the mother, and the parties have made arrangements by way of consent orders for the day-to-day and holiday care of the children until further order. The terms of the orders are such that the parties could well extrapolate them generally into the future if that was what they desired.
The Court must determine whether or not the father should be permitted to take the children to participate in a family holiday in Queensland for a week in February after school has commenced. The father sought to take the children on such a holiday during the school term last year, and the mother refused on the basis, at least partially, that it was during the course of the school term.
Between the father and his current partner, they have a large number of children through various relationships that see them regularly or are in their care.
It was explained that it is very expensive to have holidays when there are so many children involved and that the parents were booking to take the children to the Gold Coast to attend what is described as ‘special child-focused venues’. This presumably includes things like theme parks and marine parks, which have a great deal of enjoyable activities for children and families.
The case presents a peculiar set of difficulties. There has been a great deal of difficulty between the parties about arranging specific times for contact to take place. The uncertainty then undermines a person’s confidence in making plans for the holidays out of concern that the children might not actually be with them during the particular holiday event. This appears to have affected the father in the case. There will be no such uncertainty in the future once orders are in place and the force of the law is behind the specific arrangements.
The crux of the case comes down to the question of whether or not the children should be taken out of school for a week in February, given that school commences on 4 February.
Parents have an obligation to ensure that their children attend school. This is provided for in state legislation around the country and in Victoria specifically in the Education and Training Reform Act 2006 (‘the Act’). Section 2.1.2 of the Act provides:
A parent of a child of compulsory school age must not without a reasonable excuse fail to comply with the duty set out in section 2.1.1.
Section 2.1.1 provides that:
It is the duty of the parent of a child of not less than 6 or more than 17 years of age -
(a) to enrol the child at a registered school and to ensure the child attends the school at all times when the school is open for the child's instruction.
…
The provision goes on to provide some alternatives for home schooling, no doubt aimed at country areas or children with unusual needs. The Act gives examples of reasonable excuses at s.2.1.3, including illness, accident, an unforeseen event, an unavoidable cause and a requirement to comply with another law. There are number of other exceptions, one of which is the child’s absence from Victoria. This particular exception presumably recognises the constitutional geographic limitations of the Victorian Parliament with respect to children when they move out of the state. Other examples include observing a religious event or obligation as a result of a genuinely held belief of the child or a parent.
It is clear on the law in Victoria that children are required to attend school each day during the school year. It is difficult to conclude that holiday arrangements by parents during the school year could be regarded as a ‘reasonable excuse’. There may some cases where events unfold that make the question more difficult. For example, situations where children might become the recipients of a gift or prize that involve travelling to a foreign country during the school term, and have real education value in a more general sense.
Clearly, travel arrangements that have an educational value or component may fall within the meaning of ‘reasonable excuse’. However, as a general proposition, it is not within the law for children to simply go on holiday during the school year even if it is only for a week. It may be that the strictures of this law are not rigidly imposed. One would hope that in terms of specific schools and arrangements, matters would proceed by way of discussion with the teachers. This appears to have occurred here in that class work has been given for the children to do during the course of the week, although I do not have specific evidence from the school.
As a matter of principle, the court could not generally sanction children being taken on holiday whilst the school term is running. It would require specific circumstances to show such an order was in the child’s best interests. The evidentiary onus will fall on the applicant as it must be accepted that in the absence of any evidence, the child’s best interests will be served by attendance at school through the school year, as required by the state Act. It is also in a child’s best interests to grow up respecting and complying with the laws of the place where they live. The difficult philosophical questions accord civil disobedience and unjust laws are far removed from issues concerning children of the age of these children, living in a liberal democratic state. Ordinarily, the orders of this Court are framed around ensuring strict attendance of children at school. Although such orders are often with respect to families that have difficulties far more dire than those experienced by these parents, they are nonetheless based upon the principle that attendance each day at school is a central part of parenting and a central part of children’s education and development.
The question in this case is whether or not on the facts and circumstances, the Court ought to sanction the father’s proposed care arrangements in light of the mother’s opposition.
I have considered the family report writer’s evidence as to the family dynamics and that the children are looking forward to the time in Queensland, and that it is, in her view, not likely to be particularly significant to their education. However, the family report writer accepts that ordinarily it is not in the children’s best interests to be away from school.
I have also had regard to the fact that the children are aware of this planned proposal and the way in which it came about. It has been an inappropriate manipulation of the children to tell them of the proposal before arrangements were in place between the adults. It has also done nothing to help the adults’ relationships. For this reason, the disclosure of the holiday proposal to the children should not be a weighty matter in pressing the Court to make the order. Rather, it is a factor that stands against the father in terms of his parental responsibility and his attitude to parenting.
I have taken into account that the circumstances that have come to pass may result in the children looking to their mother unfavourably in that she has been an agent in the whole affair. Through juvenile minds, the children may inappropriately place the causation of their woes upon the mother. This does not seem to me to be the better view as an adult and it is not a factor that overweighs the importance of children attending school during the school term.
When the matter is considered as a whole, I am not persuaded that a holiday during the school term is in the children’s best interests. The ordinarily accepted proposition that it is in the best interests of the children to attend school each day should be accepted. The facts of this case do not indicate that such circumstances have arisen as to show that time off school is in the child’s best interests.
In the circumstances, I therefore decline to make an order permitting that the children to take a holiday during the school term.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 25 January 2010
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