Clawfer & Clawfer
[2024] FedCFamC2F 1040
•30 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Clawfer & Clawfer [2024] FedCFamC2F 1040
File number(s): BRC 12426 of 2023 Judgment of: JUDGE BERTONE Date of judgment: 30 July 2024 Catchwords: FAMILY LAW – parenting – application for the school the two children are to attend from 2025 – mother seeks children attend non-denominational private school – father seeks children attend private and faith-based school. Legislation: Family Law Act 1975, pt VII, s 69ZL(1) Cases cited: Franklyn & Franklyn [2019] FamCAFC 256
Re G: Children’s Schooling [2000] FamCA 462
Division: Division 2 Family Law Number of paragraphs: 55 Date of last submission/s: 30 July 2024 Date of hearing: 30 July 2024 Place: Brisbane Counsel for the Applicant: Mr Fraser Solicitor for the Applicant: Pullos Lawyers For the Respondent: The Respondent appeared in person Solicitor for the Independent Children's Lawyer: Ms Berck ORDERS
BRC 12426 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CLAWFER
Applicant
AND: MS CLAWFER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BERTONE
DATE OF ORDER:
30 JULY 2024
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
1.The parents forthwith do all acts and things and sign all documents necessary to enrol X born in 2012 and Y born in 2013 (‘the children’) into N School to commence term one, in 2025.
2.The Mother will be responsible for the costs associated with the children attending N School.
3.Both parents be at liberty to communicate with the school and obtain such information usually provided to parents, and to obtain their own login details if there is a school portal so that the parents can each obtain information about the children directly from the school.
4.The parents each do all acts and things and sign all documents necessary to have the children use the bus service at N School and take all steps necessary to ask the school to facilitate a stop closer to the Father's residence.
5.The parents are at liberty to provide a copy of these Orders to the school.
THE COURT ORDERS THAT:
Confidential Court-based Family Dispute Resolution Conference
6.Pursuant to section 13C(1)(b) of the Family Law Act 1975 (Cth), the parties and their legal representatives (if any) shall attend:
(a)Part 1 of the confidential Court-based Family Dispute Resolution (FDR) Conference with a Registrar (as Family Dispute Resolution Practitioner) on a date to be fixed, with each party to attend separately at times to be advised; and
(b)Part 2 of the confidential Court-based FDR Conference on a date and at a time to be fixed but not later than seven (7) days after the date referred to in order 1(a).
7.The matter shall be referred to the Executive Director – National Registrar Operations and Practice for allocation and listing of the FDR Conference dates to take place prior to 22 October 2024
Compliance and Readiness Hearing
8.The proceeding is listed for a Compliance and Readiness Hearing on 22 October 2024 at 9:00am in the Brisbane Registry of the Federal Circuit and Family Court of Australia (Division 2) before Her Honour Judge Turner.
9.In accordance with the FCFCOA Central Practice Direction - Family Law Case Management, no less than seven (7) days prior to the listing, both parties are to file and serve:
(a)An Amended Application or Response as appropriate, setting out the precise Orders sought, if the most recently filed Application or Response is not current;
(b)An Undertaking as to Disclosure in accordance with Rule 6.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth);
(c)A Certificate of Readiness in the approved form.
10.No less than five (5) days prior to the listing, the parties or their legal representatives confer in order to be able to advise the Court of the following matters at the Compliance and Readiness Hearing:
(a)The factual issues requiring determination at a Final Hearing;
(b)The main legal and factual contentions advanced in relation to each issue in dispute;
(c)In parenting matters, the capacity of each party to contribute to the cost of a Single Expert Report instead of a Family Report;
(d)The proposed witnesses (including expert witnesses) and their availability;
(e)Whether interpreters are required;
(f)Whether the matter is appropriate to be heard by videoconference;
(g)Whether expert evidence can be given by videoconference;
(h)The estimated length of the Final Hearing and proposed trial plan; and
(i)Whether any other step is required in order for the matter to proceed to a Final Hearing.
11.Not later than 4.00pm one (1) business day prior to the Compliance and Readiness Hearing, the parties provide a draft Minute in Microsoft Word format setting out with precision any procedural Orders sought to aid the limiting of issues or time required for Final Hearing, by email to the Chambers of the Compliance and Readiness Hearing Judge.
Outstanding Interim Applications Dismissed
12.All outstanding interim applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE BERTONE
This judgment was delivered orally and has been corrected for comprehension.
I give these reasons in this interim parenting dispute in circumstances where I will settle the reasons for grammar, comprehension and to insert case authorities and their citations.
These are interim parenting proceedings pursuant to Part VII of the Family Law Act 1975 (“the Act”) regarding X, born in 2012, and Y, born in 2013.
The parties separated in 2015 and came to Final Orders some time in 2018. The Father filed his Initiating Application commencing these proceedings on 18 September 2023. The Mother responded on 30 November 2023.
This is not the first occasion that the parties have been to Court in respect of what I will call this new application, but before me today is a discrete issue with respect to the school the children should attend commencing in 2025 and beyond.
The children have been in the Mother's sole care since 30 November 2023 and have not spent time with the Father since that time. The reasons for how that arrangement came about and whether or not that agreement is appropriate will be ventilated at a final hearing. That is, if the parents are not able to come to some sort of arrangement at the dispute resolution conference that I ordered this morning prior to taking submissions about this education issue.
The reason for the specific question of school needing to be decided today is that X is going to be commencing grade 7 in 2025, so in circumstances where the parents do not agree which high school he should attend, the Court needs to make that decision in relative circumstances of urgency so that his enrolment can be completed and so that he can be ready for school. Y will be in grade 6 in 2025. Both boys currently attend O School.
Both parents and the appointed Independent Children’s Lawyer (“ICL”), Ms Berck, all agree that both boys should go to the same school in 2025 and beyond. Ms Berck did not wish to be heard in respect of which particular school the boys attended, save for offering her view that the boys should be at the same school together and the Court thanks her for her assistance in that regard.
THE COMPETING PROPOSALS OF THE PARTIES
The Father filed an Amended Application in a Proceeding on 3 June 2024 seeking Orders relevant to the school dispute;
(1)at paragraph 3, that the Father has sole parental responsibility in relation to children's education; and
(2)paragraph 4, in the alternative to Order 3, that the parents do all acts and things and sign all documents to enrol the children at P School and Q School.
It is not specified in the orders set out in the Father's Amended Application in a Proceeding, but it was confirmed to me via his Counsel, Ms Fraser, and, indeed, in his affidavit evidence, that the Father's position is that he will be responsible for the education costs of the children's attendance at either Q School or P School.
It was further submitted to me by Ms Fraser that the Father would agree to a notation in the Orders that reads that the Father's payment of the children's school fees for both schools is not intended to be used to vary his administrative assessment to pay child support.
The material he relies upon is his Amended Application in a Proceeding and his affidavit, both of which were filed on 3 June 2024. Encompassed in the Father's affidavit is exhibit 2, which is the annexure relevant to this school issue.
The Mother's position is set out in her Response to Application in a Proceeding where she opposes the two schools chosen by the Father and seeks orders relevant to this education issue as being:
(1)sole parental responsibility for the Mother;
(2)that the children be enrolled at N School, (that is at paragraph 20 of the Mother's Response to an Application in a Proceeding); and
(3)paragraph 28, that the Mother will be responsible for the school costs for the children attending N School.
The Mother in submissions also agreed to a notation that her payment of school fees for the children to attend N School is not intended to be used by her to vary the administrative assessment for child support payable by the Father.
The material she relies upon is her Response filed 1 July 2024, her affidavit filed 1 July 2024 and the annexures to that affidavit are collectively tendered as exhibit 1. Both parties also read the Family Report prepared by Ms J, and which was filed on 17 April 2024.
As I made clear to the parties during submissions, it is not necessary for me to make any orders allocating parental responsibility or decision-making power for the children's long-term issues at this interim stage, because that is a matter that I consider is best ventilated at trial.
I did also make clear in submissions that the extent to which Ms J expresses her opinion as to the allocation of parental responsibility is, in my view, outside of the scope of her instructions and the scope of her engagement, and is best left to the judicial officer who is ultimately going to be hearing all of the evidence in this matter, make findings in respect of that evidence, so that the appropriate order can be made in the children's best interests.
The applicable principles to interim hearings is pursuant to section 69ZL(1) of the Act. These are short form reasons with respect to this discrete issue of the question of schooling.
Interim hearings are, by nature, curtailed hearings where the evidence cannot be tested, where facts in dispute cannot be determined, and where there is no cross-examination. The Court is unable to make findings and conclusions on an interim basis at such an interim hearing. See Franklyn & Franklyn [2019] FamCAFC 256.
The question about which school the children should attend is a parenting order and the Court is mandated to regard the children's best interests as the paramount consideration.
It is not for this Court to determine which school is better over and above another school by virtue of looking at the ATAR rates, the NAPLAN scores and other indicia which are used to promote Q School as being better than another school, see Re G: Children’s Schooling [2000] FamCA 462.
The Court cannot embark on an assessment of the relative merits, particularly where these three school that are proffered by each of these parents, on the face of it, seem to be satisfactory.
The Father's proposal is that the children should attend either P School or Q School. The Father does consider, I think that is fair to assert from his evidence, that in his view P School and Q School are the better schools.
In respect of the nature of these schools, all three of these schools are private schools and have some element of a religious faith. The Mother asserts that N School is a non-denominational school. P School and Q School are religious schools.
The Father submits, through his Counsel, that either P School and Q School would be better for these two children, but has not ascertained with any degree of certainty whether there is a spot available for both children to attend in 2025.
This is important, because the parties and the ICL all agree that these boys need to go to the same school. So, it will not be acceptable for X to be accepted and Y not. There is no evidence before me that Q School or P School have availability for these boys in 2025.
The Father did not state in his affidavit how much the fees were but estimates in submissions put to me that the cost per child per year for either Q School or P School is around $6,000 per annum per child.
The Mother also made submissions with respect to N School that the school fees for N School is about $10,000 per annum per child and, as stated previously, she will be bound by the Order that she will pay school fees.
The Mother opposes P School, in particular, because she says in her affidavit, this is at paragraph 80:
… I have a strong objection to [P School] as they […] have previously requested both staff and families to sign agreements against inclusion of LGBTQI+ individuals. …
When I asked the parties to advise if the children had been baptised in any particular religion, I was told they had not been baptised. Indeed, I note that O School is a local secular school, it is not a religious school.
The Father does not complain about N School from a religious or other standpoint. His only objection to N School seems to be based on two parts.
The first part is that he rejects absolutely an assertion put by the Mother that he agreed at any time for the children to attend N School.
Secondly, that the bus service that is utilised by students attending N School does not have a bus stop close to the Father's residence and this will involve the children having to travel between three to four kilometres from the bus stop to the Father's house and that will take the children, he estimates, about an hour.
Exhibit 4 is a map that the parties agreed my Associate could obtain from Google Maps to show the two stops that N School has stopping in the Town R area, which the parties agree is the same suburb as the Father lives. It is accepted by all the parties that Google Maps does say that it is about three to four kilometres to the Father's residence from each of the school bus stops and it would, no doubt, take the children a long time to walk.
The Mother says that the Father is choosing to have them walk from that bus stop, that he could collect the children from the bus stop if he chose. Exhibit 4 shows that the drive time from each bus stop to his residence is about five minutes.
The Father did confirm through his Counsel, information that was not clear to me from this affidavit dealing with the schooling issue, that the Father works from his home in two different businesses:
(1)S Company; and
(2)as a self-employed tradesperson.
Counsel also confirmed, on instructions, that the Father does have a car and has the ability to drive.
The Mother currently drives the children to O School and the Mother, in her affidavit at paragraph 78, does depose to the two bus stops in Town R. She deposes that the Father does expect the children to walk, but that the Father is content for the children to be driven by the Mother currently.
Exhibit 3 is a map tendered, and it was provided by the Father's solicitor, it demonstrates the location of each of the Mother's house, the Father's House, N School, O School, Q School and P School. The Mother submits that N School is about halfway between the Father's home and the Mother's home.
The map does not give an indication of the exact kilometres, but it is clear from the map in exhibit 3 that O School is relatively close to the Father's home and a fair distance away from the Mother's home and it is a drive that the Mother has had to do with the children every day since at least 30 November 2023, when the children remained in her full-time care.
As I stated previously, there is controversy as to how it is that the children have remained in the Mother's care. No doubt, the Father is unhappy with the current parenting arrangement, given his application for, effectively, a change in residence, but, again, that is a matter for a trial.
The reality for these two children is that they are having to travel a significant distance currently to their current school and there is no evidence that the Mother is going to change that until they complete their school year in 2024.
So that means these children will be continuing to attend a longer travel to their current school than they would when they commence their new school, whichever it is, in 2025 noting on exhibit 3, N School is closer to the Mother's residence and, certainly, much closer to the Mother's residence than O School.
The Father's concern about the children having to travel on a bus from a bus stop to his home is premature in the circumstances that, at the moment, the children are not spending school days with the Father. So that means the children are not at this stage having to travel from school to the Father's residence.
That might change in the future, but the decision about whether or not the children have to walk the distance from the bus stop to the Father's house, instead of being driven from the bus stop to the Father's house, that is 100 percent in the hands of the Father. He can choose to reduce that amount of time, should he wish to, by collecting the children, driving from his home to the bus stop, noting that that is where he works. There is no need to go to a second location.
That is the only reason that he has given as to why N School is not a school that he would choose or that he would agree to, apart from claiming, as I stated earlier, that it was a school that he does not agree that he ever agreed that the children should attend.
It is notable, however, that in his evidence, he agrees that he attended a tour of N School with the Mother and X in 2021. In his affidavit at paragraph 15, where he is saying that he does not recall reaching an agreement that the boys would attend N School, he says that he attended a tour of N School:
… as I did with many other schools when investigating secondary schools for the boys.
The Father does not specify in paragraph 15 which other schools he toured. When I asked Ms Fraser to clarify those instructions with the Father as to whether or not P School or Q School were one of the schools that the Father toured in 2021, the answer was that, no, they were not the schools that he toured in 2021.
The Mother's promotion of N School is premised on having had the tour with the Father and the child, and also on her view that the parents had previously agreed to N School. As I pointed out to the Mother, whether or not there was an agreement is in dispute and that can be the subject of cross-examination at trial.
But it is of note, in my view, that this is the only school that, even after separation, in a relatively hostile parenting relationship, which is identified by Ms J, it is of note to me that these parents were able to on one occasion go together with their son to a school.
It is a finely balanced decision to decide which school a child should go to and, having regard to the evidence that the parties have relied upon, I find that it is in the best interests of these children to attend N School for the following reasons:
(1)the parents attended N School in 2021 before these proceedings were commenced and they attended that school on a day with X;
(2)N School seems to be, if not halfway, close to halfway, between both parent's residences;
(3)Whilst the Mother has the children in her full time care, I have to take into account the fact that she is solely responsible for transporting the children to and from their school, which is currently O School.
(4)The bus service that is going to work from N School, in 2025, will help transport the children to the school from either their Mother's or their Father's house. But that the distance the bus stop is currently from the Father's house is not an unreasonable distance for the children to travel if they are transported to and from the bus stop by their Father in his vehicle.
(5)The Father makes no criticism of N School as to its culture or as to its belief system. Whereas the Mother has a strong opposition to P School due to its exclusion of the LGBTQI+ community, which she says is not an appropriate culture for the children to experience at this school.
(6)There is a guaranteed position for both boys to attend N School. This is contained in exhibit 1 to the Mother's affidavit, at page 47.
(7)There is no evidence before me of any spots available at either P School or at Q School. If I were to make an order for the parties to do all acts and things to enrol the children at either P School or Q School, there is no guarantee the children will have spots available for both of them, in 2025. That will then necessitate the parties coming back to the court to have another order for a different school for these children to attend, in 2025.
I do not consider that uncertainty to be in the children's best interests. It is already July. The children have been offered a spot at N School and the parents can join together to properly prepare the children and make them ready for the transition to a different school, and in particular, for X to make the transition to high school.
I intend to make an order that both of the parents are at liberty to liaise with the school and get documentation from the school that any parent would usually get, usually from the portal.
Each of the parents need to be named on the enrolment form. No parent is to consider that they have any greater authority or decision-making power over these boys at this stage, because the Court has not made an allocation of parental responsibility. This is an opportunity for the parents to work together on this issue to help the transition for the boys to be smooth.
There will be a notation that the Mother's payment of the children's school fees and education costs of the children attending N School are not intended to vary any child support assessment requiring the Father to pay child support.
I make orders accordingly.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Bertone. Associate:
Dated: 2 September 2024
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