Dane and Marrow

[2012] FamCA 57

FAMILY COURT OF AUSTRALIA

DANE & MARROW [2012] FamCA 57

FAMILY LAW - CHILDREN – Schooling – Where the parties had previously agreed on the school that the child would attend – Where the mother seeks that the child attend a different school – Where the mother had not seriously raised the issue of the child attending a different school until 23 October 2011 – Where the mother lacks the capacity to meet the fees for the different school – Found that there is no evidence to suggest that the different school would offer a superior opportunity to the child over the previously agreed school – Orders that the mother’s application be dismissed.

APPLICANT: Ms Dane

RESPONDENT: Mr Marrow

FILE NUMBER: SYC 2195 of 2008

DATE DELIVERED: 17 January 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 17 January 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Othen

SOLICITOR FOR THE APPLICANT: Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT: Mr Lloyd of Senior Counsel

SOLICITOR FOR THE RESPONDENT: Paul & Paul Lawyers

Orders

1. That the application listed this day be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dane & Marrow has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2195 of 2008

Ms Dane

Applicant

And

Mr Marrow

Respondent

REASONS FOR JUDGMENT

1. In this matter, the application before the Court relates to schooling for a child J born in January 2007 and thus five years old.  The matter comes before the Court in circumstances where the matter has been fixed for hearing before Le Poer Trench J, and the application for determination before his Honour is the mother’s application to relocate with the child to the United Kingdom.  I am referred by the mother to her amended response filed on 14 December 2011, the report of Dr M and the affidavit of the mother sworn on 22 November 2011.  The father relies upon a response which was filed in Court today, an affidavit sworn on 8 December 2011 and a financial statement sworn on 8 December 2011.

2. These parties attended upon Dr M for interviews for a report on 7 and 8 November.  It does not appear from Dr M’s report that there was raised with him any issue about where J would attend school.  At paragraph 73 of the report, Dr M refers to the fact that he is told that J had attended an orientation day for C Primary School.  At paragraph 92 of the report, Dr M is told by the father’s new partner about J’s reaction to the orientation day and the fact that J already has a friend who will be attending that school, and at paragraph 102 of the report, Dr M records the father as being supportive of the mother’s proposal for J to attend C Primary School.

3. The father in his affidavit sworn on 8 December refers at paragraph 8 to an agreement proposed by the mother that J attend C Primary School, and there is no dispute as between the father and the mother that J has, in fact, been enrolled at C Primary School and can attend C Primary School at the beginning of the 2012 school year.  The father then refers to a chain of correspondence to which Mr Lloyd referred me commencing in March of 2011.  It is not until August of 2011 that the mother raises, albeit in passing, the possibility of J’s attending R School, and the father’s evidence is that this issue was not raised again with him until an email of 23 October 2011.  The father at paragraph 9 of his affidavit annexes an email from the mother where she confirms that J has been offered a place at C Primary School and that it was to be accepted.  The father then goes on at paragraphs 10, 11 and 12 of his affidavit to set out what he perceives to be J’s reaction to the enrolment at C Primary School.  He records the fact that J already has her school uniform, that she had worn her uniform to preschool and that she has, in fact, attended two orientation mornings at C Primary School.  The evidence before me is that the parties certainly up until very recently had agreed that J would attend C Primary School.  J appears to be aware of that and happy with that position. 

4. The mother first raised the issue of R School seriously on 23 October 2011, when she handed the father an application form for R School.  There is no agreement between the parents that J will attend R School.  There is, however, a concluded agreement that she attends C Primary School, and she is able to do so without any intervention on the part of the Court. 

5. A difficulty with the mother’s application is the issue of the payment of school fees.  Although it is put on behalf of the mother by her counsel that she can afford to pay the school fees - indeed, Mr Othen submitted that both parties have the capacity to meet the school fees – that is not the evidence before the Court.  In an email which is annexed to the mother’s affidavit at page 10, the mother includes these words:

   The school fees begin at $17,500 for the first year of kindergarten increasing to $25,300 for year 12.  The enrolment fee is $2600.  Please would you be prepared to cover the costs of these fees on the basis that I am not able to meet these costs.

   I cannot therefore assume on the basis of the sworn evidence that the mother has the capacity to meet the school fees. 

6. There is no issue of convenience as between the two suggested schools.  There is no dispute between the parents that each of the schools would be a suitable school for J, and indeed, it was conceded by counsel for the mother that C Primary School is a suitable school.  J is enrolled in the school.  Both of the parents have completed the enrolment documents.  J has attended the orientation day on two occasions and has her uniform.  There is no evidence which would satisfy me that the mother’s choice of R School offers J a superior opportunity to the previously agreed school, which is C Primary School, and there is no evidence upon which I could be satisfied on an interim basis that it is appropriate to make the orders which are sought by the mother, and I dismiss the application.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 17 January 2012.

Associate: 

Date:  16 February 2012