DAWSON & DAWSON - [2012] FMCAfam 94

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DAWSON & DAWSON

[2012] FMCAfam 94

FAMILY LAW – Parenting – three children aged 12, 10 and 6 years – parties reached agreement as to the living arrangements for the three children on the basis that they live week about with each of their parents – parties unable to reach agreement as to which secondary school the eldest child should attend – wife seeks that the child attend a Catholic secondary school and that she be responsible for the fees associated with same – husband seeks that the child attend at a local government school – found that in accordance with her strongly held wishes it is in the best interests of the child to pursue her secondary schooling in the Catholic system.

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

Re G: Children’s Schooling (2000) FLC 93-025

Applicant:

MS DAWSON

Respondent:

MR DAWSON

File Number:

MLC 7337 of 2007

Judgment of:

Bender FM

Hearing dates:

1 & 2 February 2012

Date of Last Submission:

2 February 2012

Delivered at:

Melbourne

Delivered on:

2 February 2012

REPRESENTATION

Counsel for the Applicant:

Mr Grant

Solicitors for the Applicant:

CE Family Lawyers

Counsel for the Respondent:

Ms Colla

Solicitors for the Respondent:

RNG Lawyers

THE COURT ORDERS THAT:

All previous parenting orders be discharged.
The parties do all such acts and things and sign all such documents as may be required for the child [X] born [in] 1999 (“[X]”) to attend [O] School to commence in Year 7 in Term 1 of 2012 on 2 February 2012.
The wife shall be responsible for the payment of all fees associated with [X]’s attendance at [O] School.

THE COURT ORDERS BY CONSENT THAT:

The husband and wife have equal shared parental responsibility in relation to the long term care, welfare and development of the children of the relationship, [X] born [in] 1999 (“[X]”), [Y] born [in] 2001 (“[Y]”) and [Z] born [in] 2005 (“[Z]”).
[X], [Y] and [Z] live equally with the husband and wife on a week about basis with changeover occurring at 3.30pm each Friday.
[X], [Y] and [Z] spend special occasions with the husband as follows:
(a)in 2012 and each alternate year thereafter from 5.00pm Easter Saturday to 5.00pm Easter Sunday;
(b)over the Christmas period as follows:
(i)in 2012 and each alternate year thereafter from 5.00pm Christmas Day until 5.00pm Boxing Day; and
(ii)in 2013 and each alternate year thereafter from 5.00pm Christmas Eve until 5.00pm Christmas Day in 2013;
(c)over the New Years period as follows:
(i)from 5.00pm New Years Eve 31 December 2012 until 5.00pm New Years Day 1 January 2013 and each alternating year thereafter; and
(ii)from 5.00pm New Years Day 1 January 2014 until 5.00pm 2 January 2014 and each alternating year thereafter;
(d)in the event that Father's Day (being the first Sunday in September) falls on a day other than when [X], [Y] and [Z] are with the husband, from 5.00pm on the Saturday prior to Father’s Day until the commencement of school, with the husband to collect [X], [Y] and [Z] from the wife’s residence;
(e)on [X], [Y] and/or [Z]’s birthdays, if not in the husband’s care, as follows:
(i)if a school day, from after school until 6.30pm with the husband to deliver [X], [Y] and [Z] to the wife’s residence; or
(ii)if a non school day, for four hours as agreed between the parties and failing agreement from 12.00 noon until 4.00pm with the husband to collect and deliver [X], [Y] and [Z] to the wife’s residence;
(f)on the husband’s birthday (being [date omitted]), if not in the husband’s care, as follows:
(i)if a school day, from after school until 6.30pm, with the husband to deliver [X], [Y] and [Z] to the wife’s residence; or
(ii)if a non school day, for four hours as agreed between the parties and failing agreement from 12.00 noon until 4.00pm with the husband to collect and deliver [X], [Y] and [Z] to the wife’s residence; and
(g)as may otherwise be agreed between the parties from time to time.
The arrangements set out in order 5 herein shall continue during the school term holidays and the long summer school vacation period unless otherwise agreed in writing by the parties with the husband submitting to the wife any proposal he may have at least 30 days prior to the first day of each vacation period.
Changeover shall occur with the parents delivering [X], [Y] and [Z] to [X], [Y] and [Z]’s school on a school day and if a non school day, then unless otherwise agreed the wife shall collect [X], [Y] and [Z] when they are due to be in her care from the husband's driveway entrance and the husband shall collect [X], [Y] and [Z] when they are due to be in his care from the wife’s driveway entrance.
Unless agreed between the parties in writing neither parent attend [X], [Y] and [Z]’s school during the week that [X], [Y] and [Z] are with the other parent save for;
(a)special school events to which the parents are ordinarily involved or invited; or
(b)attendance on account of voluntary work at the school which is authorised by the school.
The party with whom [X], [Y] and [Z] are not living shall be at liberty to contact [X], [Y] and [Z] by telephone twice a week, with the wife placing the call between 7.00pm and 8.00pm on each Tuesday and Sunday and with the husband placing the call between 6.30pm and 7.30pm each Tuesday and Sunday.
The party with whom [X], [Y] and [Z] are not living shall be at liberty to contact [X], [Y] and [Z] by electronic communication (other than by telephone) twice per week.
[X], [Y] and [Z] spend special occasions with the wife as follows:
(a)in the event that Mother’s Day (the second Sunday in May) falls on a day other than when [X], [Y] and [Z] is with the wife, from 5.00pm on the Saturday prior to Mother’s Day to the commencement of school, with the wife to collect [X], [Y] and [Z] from the husband’s residence;
(b)in 2013 and each alternate year thereafter from 5.00pm Easter Saturday to 5.00pm Easter Sunday;
(c)over the Christmas period as follows:
(i)in 2012 and each alternate year there after from 5.00pm Christmas Eve until 5.00pm Christmas Day; and
(ii)in 2013 and each alternate year thereafter from 5.00pm Christmas Day until 5.00pm Boxing Day;
(d)over the New Years period as follows:
(i)from 5.00pm New Years Even 31 December 2013 until 5.00pm New Years Day 1 January 2014 and each alternating year thereafter;
(ii)
from 5.00pm New Years Day 1 January 2013 until 5.00pm

2 January 2013 and each alternating year thereafter;
(e)in the event that [X], [Y] and/or [Z]’s birthdays falls on a weekend when not with the wife as follows;
(i)if a school day, from after school until 6.30pm, with the wife to deliver [X], [Y] and [Z] to the husband’s residence; or
(ii)if a non school day, for four hours as agreed between the parties and failing agreement from 12.00 noon until 4.00pm with the wife to collect and deliver [X], [Y] and [Z] to the husband’s residence;
(f)on the wife’s birthday (being [date omitted]) and not in her care as follows;
(i)if a school day, from after school until 6.30pm, with the wife to deliver [X], [Y] and [Z] to the husband’s residence; or
(ii)if a non school day, for four hours as agreed between the parties and failing agreement from 12.00 noon until 4.00pm with the wife to collect and deliver [X], [Y] and [Z] to the husband’s residence.
The husband and wife within seven days enrol in, attend and complete a post separation parenting program via the auspices of Relationships Australia and provide a certificate of completion of the Program to the solicitors for the other party.
On 15 February 2012 at 10.00am and thereafter as recommended by Mr P, the husband and wife attend confidential Family Counselling with Mr P to address the matters referred to in paragraph 48 of the Family Report prepared by Ms S dated 21 December 2011 and Mr P be given a copy of the report and be at liberty to contact Ms S and also have access to filed documents in these proceedings.
If Mr P recommends that [X], [Y] and [Z] be involved in the confidential Family Counselling the parties are attending pursuant to order 14 herein, the parties shall do all things necessary to ensure [X], [Y] and [Z] participate in such counselling.

AND THE COURT NOTES THAT:

A.The parties have agreed that [Y] and [Z] shall attend the same secondary school as [X] unless otherwise agreed between them in writing.
B.The wife will be responsible for all fees associated with [Y] and [Z] attending the same secondary school as [X].

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 7337 of 2007

MS DAWSON

Applicant

And

MR DAWSON

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction

This matter relates to which school the parties’ eldest daughter [X] born [in] 1999 (“[X]”) is to attend for her secondary schooling.
The parties, to their credit, have given a clear commitment to the court and to each other that whichever secondary school it is decided [X] attend, so will her younger sisters [Y] born [in] 2001 (“[Y]”) and [Z] born [in] 2005 (“[Z]”), when it comes their turn to start high school.
The wife is seeking an order that [X] attend [O] School in [B] (“[O] School”).
The husband is seeking an order that [X] attend [M] School in [M] (“[M] School”).
I note that the wife originally sought orders in her Initiating Application for a variation of the existing arrangements for [X], [Y] and [Z], whereby they live on a week-about basis with each of their parents (noting that for the last six months [X] has not spent time with the husband) to one where they primarily live with her and spend time with the husband.
At the commencement of this matter before me, I was handed a minute of consent orders whereby the parties have resolved all matters between them as to [X], [Y] and [Z]’s living arrangements, save for the schooling issue.
The parties’ proposed consent orders provide that all three girls, including [X], live with each of their parents on a week-about basis, make provision for holidays and special occasions, provide for changeovers and most importantly for the parties, and if so determined [X], [Y] and [Z], to attend on Mr P for confidential therapeutic intervention to assist the parties in better parenting their daughters. I am satisfied that these proposed consent orders are in the girls’ best interests and they shall form part of the orders I make today.

Background

The applicant wife was born [in] 1965 and is 47 years of age. She is employed by her brother on a part-time basis as a [omitted]. The wife is not in another relationship. She lives in [omitted].
The husband was born [in] 1967 and is 44 years of age. He works part-time as an [omitted]. He has re-partnered and lives with his partner, [name omitted], and her son, [name omitted], aged 18 years, at [P][address omitted].
Both parties have chosen to work part-time to enable a work/life balance so that they are available to care for their daughters.
The parties married [in] 1996 and separated on 26 November 2006. They divorced on 6 July 2008.
On 14 January 2008, final consent orders were made which made provision for the parties to have equal shared parental responsibility for [X], [Y] and [Z], and for [X], [Y] and [Z] to live week-about with each of their parents upon [Z] commencing primary school. The orders also made provision for holidays and special occasions.
Notation A to the 14 January 2008 orders was in the following terms:
A.Both parties will encourage the children to participate in and follow the Catholic Religion.
It is common ground between the parties that prior to separation they moved from [omitted] to the [M] area because it afforded them a better choice of schools for their daughters.
It is also common ground between the parties that they chose [S] Primary School, a Catholic primary school, for their daughters’ primary education, as they wished for them to receive the sacraments and a basic learning in the tenants of the Catholic faith.
It is fair to say that both parties agree that theirs is a highly conflicted relationship and that despite the consent orders made in 2008 there has been continued acrimony and hostility between them, and they have had great difficulty in communicating and making joint decisions in relation to the arrangements for [X], [Y] and [Z].
Towards the end of 2010, the parties attempted to begin discussions regarding which school [X] would attend for her secondary education.
It was, and remains, the husband’s position that he cannot afford, and could not contribute to, the costs of a private secondary education for his daughters. Accordingly, it was, and is, his position that the girls should attend a government school.
In February 2011, the parties had discussions in relation to [X] attending [M] School, and from the husband’s perspective he believed that at that time the parties agreed to that being the school [X] would attend in 2012. An enrolment form was signed by both parties.
As part of those discussions the wife flagged the option of [X] attending a Catholic secondary school, which was her preferred choice. After an indication she would be solely responsible for all fees, the husband signed an enrolment form for [K] School in [M].
Subsequent enquiries by the wife raised concerns as to the quality of education at [K], and the wife therefore cast her net wider to consider other Catholic secondary schools in the south-east region. As a result, the possibility of [X] attending [O] School was raised. At that time [X] joined with the wife in seeking to attend this school. It was not agreed to by the husband, and it remained his position that [X] should attend [M] School.
Because of the husband’s refusal to agree to [X] attending [O] School, [X] has refused to spend any time with the husband since July 2011, save for a short period on Father’s Day. [Y] and [Z] continue to live with each of their parents on a week-about basis.

The Evidence

The Wife’s Evidence

It is the wife’s evidence that she believes [O] School is the school that will best meet [X]’s needs (and the needs of the younger girls as their time to go to high school arrives).
The wife was quite clear in her evidence that it is her preference for [X] to continue her education in the Catholic system.
It was the wife’s evidence that she and [X] attended [O] School for their Open Days, and that she was most impressed with the feeling of warmth and compassion that her interaction with the school gave her, and she has a strong view that [X] will be well looked after at this school.
It was the wife’s evidence that [O] School has comparable class sizes to [M] School, and that its curriculum and services were also comparable with that school.
It was the wife’s evidence that she attended [M] School for two Open Days, and whilst a very good school, it did not give the same impression of being as caring as did [O] School.
It was the wife’s evidence that [X] has always had a preference to continue within the Catholic education system, and that she has a strong preference to attend [O] School.
The wife was concerned that if [X] was to attend [M] School, she would know no one at that school, as all her fellow classmates from

[S] Primary School’s are continuing within the Catholic system, albeit the majority will be attending [omitted]. However, [X] will know some other students at [O] School, including two local girls with whom she will be able to travel to school if the wife is unable to drive her.
The wife concedes that [M] School is geographically closer than [O] School. It is within a kilometre, at most, of [S] Primary School, [address omitted]. However, it is her evidence that [O] School is only eight kilometres from her home, and that she will drive [X] to and from school when she is living with her. It was her evidence that if she is unable to drive for any reason, [X] is able to get to school either with the local girls who attend that school, or by utilising public transport.
It is the wife’s evidence that she will pay all fees and costs associated with [X]’s (and [Y] and [Z]’s) attendance at [O] School.
The wife filed an affidavit from her brother, Mr D, sworn

1 February 2012, who is also her employer. Annexed to the affidavit filed by her brother was the following correspondence:
“I, Mr D, Director at [U] Pty Ltd, am aware that Ms Dawson has consulted a concession fee at [O] School, such that [X]’s fees would be $2,500 per year.
Given [U] business expansion and the increased need to immediately increase staff numbers and staff hours of existing staff within our team, [U] will guarantee the continued employment of Ms Dawson for the next 24 months. [U] also guarantee to increase Ms Dawson’s remuneration to cover the fees for [X]’s school, as well as fees for [Y] should it be decided that she attend the [O] School, with her sister.”
The wife gave evidence that she has made application to [O] School for fee relief for 2012. Correspondence from [O] School dated 7 January 2012, and tendered to the court, confirmed the wife has obtained a concession of 60 per cent for the 2012 fees at [O] School, and that the total amount payable for [X]’s attendance in 2012 is $2,660.00, payable by way of 18 fortnightly payments of $147.78.
The wife gave evidence her parents had also indicated their ongoing financial support in relation to the school fees for the girls into the future.
The wife confirmed that it is necessary to make an application to [O] School each year if seeking concession fee relief.
Given the parties’ agreement that all three girls will attend the same secondary school, the wife would be responsible for fees from 2012 to 2024, a total of 12 years. From 2014 to 2019 there will be two of the parties’ daughters at the school. It was the wife’s evidence that she would be able to afford to meet those fees for that period of time by working increased hours and, if necessary, with the assistance of her family.
It was the wife’s evidence that, whilst it would be:
“lovely if the father contributed to the school fees”
she would not hold his failure to contribute against him, or discuss the fee paying arrangements with the children.

The Husband’s Evidence

It was the husband’s evidence that he believes that [M] School is the best secondary school for [X], and for [Y] and [Z] in turn.
In paragraph 86 of his affidavit, sworn and filed 24 January 2012, the husband deposes as follows:
86.I want the best education possible for our daughters and so do not see any benefit of [X] having to travel out of her local area, to a school four suburbs away from her home, to a school where she will be separated from her local community and peer groups, when there is an excellent school in [M] School which is close by, affordable and appropriate for [X] and her sisters.
Whilst conceding that the costs of a private education had been a very significant factor when discussing a choice of schools for his daughters and that he had made it clear in no uncertain terms that he could not afford a private school, and accordingly a government school was the only option, it was the husband’s evidence that it is his genuine belief that [M] School is the best school in the local area, and the one that best fits his daughters’ needs.
It was the husband’s evidence that as all three girls will have completed their sacraments and base religious studies at [S] Primary School’s, there is no need to continue at a Catholic school for their secondary education because of their Catholic faith.

It was the husband’s evidence that one of the real positives for [M] School is its location within [M]. This would allow [X], [Y] and [Z] to get to and from school easily. It was his evidence that the school is within walking distance of the wife’s home, and that he would be able to drop [X] to school, as he takes [Y] and [Z] to [S] Primary School.
By contrast, if [X] attends [O] School, she will have to walk to [P] Station, catch the train to [omitted] Station, and then walk to [O] School. It was his evidence that he undertook this journey to see for himself what [X] would experience if attending [O] School when travelling from his home. It was his evidence that the journey from his door to the school was 50 minutes.
The husband gave evidence that [M] School has better programs which will assist [X]. He is of the view that she needs assistance with numeracy and literacy, and that [M] School offers specialised tutorials and lunch programs to assist students who have problems in these areas. No such programs are offered by [O] School. (I note, however, the wife’s evidence that in her discussions with [O] School, they indicated assistance to all students who were having problems in their learning.)
It was the husband’s evidence that whilst the wife was impressed with the warmth of [O] School, he was not so impressed and saw nothing that “grabbed him” or said that the school “fits [X]”. In contrast, he found [M] School to have a vibrant atmosphere, to be well organised and structured, and gave him a lot more confidence that it would meet [X]’s needs.

Ms S

Ms S is a psychologist and Family Consultant who prepared a Family Report in this matter dated 21 December 2011, which was annexed to her affidavit sworn 19 January 2012 and filed 31 January 2012. Ms S also gave viva voce evidence at the final hearing of this matter.
In her Family Report, at paragraph 20, Ms S described [X] as follows:
20.[X] is a [omitted] girl of twelve years who presents as somewhat immature and who struggles with clearly articulating her needs. Despite being firm in her views, she is unable to identify a cogent reasoning of the issues and at times appeared confused and uncertain. She maintained a sad and forlorn demeanour throughout the interview often becoming distressed and upset. The stress and distress that the unresolved school issue has created for her was obvious, her pain palpable and embarrassment that it was causing, particularly the following Monday when the Grade 6 students would all attend school in the secondary school uniform – and she does not have one.
Further in her Report, at paragraph 44, Ms S noted the following:
44.It is clear that [X] has changed her mind about what school she wishes to attend and it is curious that Ms Dawson (who insists that [X] should attend [O] School as that is the only school she is happy about attending) also says that [X] doesn’t know what she wants and as a child, is expected to change her mind. If that is the case, then it is of greater imperative that the parents make the decision and not leave it to [X]. [X] can be easily steered in the direction that the parents determine. It is the writer’s view that [X] has wanted to stay in the catholic school system as she attends a Catholic Primary School which is not an unreasonable position to take. But her decision in (sic is) inextricably tied to the parents’ financial situation and [X]’s inability and lack of capacity to determine what she is looking for in a school and what is best for her…
At paragraph 48 of her Report, Ms S also noted the following:
48.From the writer’s perspective, it is a dispute between the parents and a situation where [X]’s view cannot be give (sic given) considerable weight for the reasons noted above. It may ultimately be a decision about who can afford to pay. However, one questions the benefit to [X] having to travel out of the area to a school where there are few people she knows and then will be separated to a large degree from the local community peer group because of distance…
Finally, in paragraph 52 of her Report, Ms S says as follows:
52.In summary, the parents have a right to determine their children’s educational environment and both seem to have cogent reasons for their preference of schools. It is a value judgment that is different for every family. It is tragic that [X] was given an option to choose before the parents could even determine if payment was possible. [X] should never have been given the impression that her choice was the ultimate arbiter especially when she has educational/learning needs that need to be addressed and she lacks the ability to determine such an issue herself…
In her viva voce evidence, Ms S indicated that whilst [X] was unable to articulate clearly why she wanted to attend [O] School in particular, she was very, very clear that she wanted to attend a Catholic Secondary School.
It was Ms S’s evidence that [X] has been caught in the middle of her parents’ dispute, and that this has been most distressing for her.
It was Ms S’s evidence that it is most usual that children who start their education within the private system remain within that system for the totality of their education, which provides a level of comfort and security for them. This is just as applicable to [X] in the Catholic system, and would also be for her sisters.
Ms S described the transition from primary school to secondary school as being made much easier and much more comfortable for [X] if she were to remain within the Catholic system.
It was Ms S’s evidence that [X]’s wish to attend a Catholic secondary school was, out of everything, the most significant issue for [X], and that her express wish to do so, whilst to some extent influenced by and mimicking the wishes of her mother is nevertheless genuinely and strongly held by [X].
It was Ms S’s evidence that [X] is psychologically and emotionally geared and ready to attend [O] School, and that if the court were to order she do so, she would, especially at this late stage, have an enormous sense of relief and go happily to school with a spring in her step.
It was Ms S’s evidence that whilst she was confident [X] would adjust to an order of this court that she attend [M] School, she suspects that [X] would initially oppose such an order and be very upset. However, once in school and, most importantly, once she established a friendship group, she would settle more happily.
Ms S gave evidence that whilst there was a possibility that an order for [X] to attend [O] School would be seen as somehow giving [X] power over her father in that relationship, two factors countered that possibility. The first was that the parties have agreed that [X] will resume living with her father on a week about basis, against her stated wishes. The second was the manner in which [X] is told of this decision, that is, it needs to be made clear to her that it is not a “win” for either parent or for [X], and that it is not a decision validating either parent.
Both parents have agreed that [X] should be advised of the outcome of this case by them both together. The husband indicated to the court he felt that the parties would be assisted in this process if it was facilitated by Ms S and, most sensibly, [X] and the parties will attend upon Ms S at 11.00 am tomorrow morning to enable her to facilitate and assist them in advising [X] of the outcome of this case, not only in relation to the decision as to what school she is to attend, but also the parents’ joint decision as to the resumption of her spending equal time with her father.

The Law

The Full Court, in the matter of Re G: Children’s Schooling (2000) FLC 93-025, looked at the manner in which courts should determine the question of which school a child is to attend, when their parents are unable to agree.
Put succinctly, their Honours held that in determining where a child attends school, the court must determine that issue on the basis of the best interests of the child, in accordance with the provisions of Part VII of the Family Law Act 1975 (“the Act”).
When exercising its’ jurisdiction in relation to children, the Federal Magistrates Court is bound by Part VII of the Act, which sets out the provisions relevant to orders made in relation to children.
Section 60b of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60b(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
When determining what arrangements should be put in place for children, the Act is quite clear that the orders, as I indicated, must be in the best interests of the children.
In order to determine what is in the children’s best interests, the court must consider the matters set out in section 60cc(2) and section 60cc(3) of the Act. Each of the matters set out in subsections (2) and (3) of section 60cc of the Act, where relevant, must be considered, and assessed in the context of each of the proposals of the parties, and a decision made as to which of those proposals is in the best interests of the children.
Section 60cc(2) of the Act sets out the primary considerations, and they are as follows.

Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

[X] has a meaningful relationship with both of her parents, albeit in recent times there have been difficulties in the relationship between herself and her father, given the impasse as to the school she is to attend this year, and also, might I suggest, some other issues in relation to their relationship that will need to be addressed with the assistance of Mr P.
[X] has a close and meaningful relationship with her mother. She is very much aligned with her mother and, again, that is an issue that needs to be addressed with the assistance of Mr P.
I made the observation earlier today that I think both parties’ insight into the issues for [X] could be more developed than it is presently, particularly given their evidence over the last two days. Mr P’s counselling with the parties in how to improve their parenting of their daughters, particularly as they approach their adolescence, will be of real assistance to them.

Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

Fortunately, this is not a matter that raises any concerns that either party will expose their daughters to any physical or psychological harm, and accordingly I don’t need to consider this subsection.
Section 60cc(3) of the Act sets out the additional considerations, and I will look at those that are relevant to the decision that I have before me.

Section 60cc 3(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

As noted previously, [X] has expressed a very strong view that she wishes to continue within the Catholic education system, and that she wishes to attend [O] School for her secondary education.
Whilst Ms S is somewhat concerned about how [X] has formed those views and in particular, the influence on her of her mother, I am satisfied that [X] has independently, and for a considerable period of time, wished to remain within the Catholic school system. I believe this is a view that is [X]’s and [X]’s alone, and that it should be given a deal of weight.

Section 60cc 3(b) the nature of the relationship of the child with:

(i) each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child)

I have already commented on [X]’s relationship with both her mother and father. It is vitally important that she recommence spending time with her sisters on a week about basis with both her parents. It has not been in her best interests for that to have not been taking place over the last six months. That it has been allowed to do so by her mother does not necessarily reflect her mother putting [X]’s needs ahead of her own. It was of real relief to me that the minute confirming the resumption of week-about time was handed to the court yesterday, and a further relief to me that the parties will be attending Mr P to assist them in better parenting their children.
[X] has a very close relationship with her mother, but, again, it is of concern that [Y] and [Z] commented on this to Ms S. I am concerned they might feel somewhat excluded from that relationship.
It is of equal concern to me that [X] is reporting concerns about her relationship with her father and his partner, such that she feels that her father doesn’t love her as much as he does her sisters, that he treats her differently to them, and that she feels that he is putting his relationship with his partner ahead of his relationship with her.
Again, I had concerns that when I questioned the husband about why he thought there were difficulties in his relationship with [X] at this time, he did not seem to have taken on board [X]’s comments in relation to the problems she sees in her relationship with her father. It is important for both parents to hear what their daughters were telling Ms S, and to be open to discussing freely with Mr P how they go about repairing those relationships. It is incumbent upon both parents to ensure that their relationships with their daughters are as good as they can be.

Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

In considering this factor, the court must also take into account subsection 60cc(4) and (4)(a) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)     has taken, or failed to take, the opportunity:
(i)     to participate in making decisions about major long term issues in relation to the child; and
(ii)    to spend time with the child; and
(iii)   to communicate with the child; and
(b)     has facilitated, or failed to facilitate, the other parent:
(i)     participating in making decisions about major long term issues in relation to the child; and
(ii)    spending time with the child; and
(iii)   communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
There is not a great deal of relevance of this subsection to the matter that is before me for determination, but many of the comments that I just made clearly go to that issue. It is vitally important for the children that each party learns to better communicate with each other as their parents.
All three girls made it very clear to Ms S that they are being impacted by their parents’ ongoing inability to communicate, their acrimony, and the conflict that exists between them. For their sake, it will be important that the parties approach the ongoing engagement with Mr P with a willingness to take on board his suggestions as to how to better parent their children.

Section 60cc 3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

Not relevant to the issue being determined.

Section 60cc 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

Not relevant to the issue being determined.

Section 60cc 3(f) the capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

Not relevant to the issue being determined.

Section 60cc 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

Not relevant to the issue being determined.

Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

Not relevant.

Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

Not relevant to the issue being determined.

Section 60cc 3(j) any family violence involving the child or a member of the child’s family

Not relevant.

Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:

(i) the order is a final order; or

(ii) the making of the order was contested by a person

Not relevant.

Section 60cc 3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

I have already complimented the parties on the commitment they have given to the court that whatever is determined in relation to [X]’s schooling, they will ensure that her younger sisters will attend the same school for their secondary education. Again I commend them both for that insight.

Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant

The cost of private education was central to the husband’s opposition to an order that [X] attend [O] School. Given the commitment of the wife to meet the school fees, that issue, I am satisfied, is off the table.
However, this will only be the case if the wife’s evidence that her payment of the fees is not going to be used as a weapon against the husband is how she behaves. If there is any resentment from the wife, if the wife says, “Well, your father doesn’t love you, because look, he’s not even paying for your school fees,” then the parental relationships will be undermined.

Conclusion

It is most unfortunate that the parties have not been able to resolve this matter as between themselves. The impact on [X] of this has been most unfortunate in that she has missed her first day of high school, her relationship with her father has been damaged, she has been afforded an inappropriate level of decision-making by her mother and has been placed under considerable stress to make the decision as to her school, when it was not her decision to make.
Having considered the best interests of [X], I am of the view that it is in [X]’s best interests that she attend [O] School.
I came to this view for a number of reasons. The first is [X]’s strongly stated wishes. Whilst I accept her choice of [O] School to some degree reflects a mimicking of her mother’s views, I am also satisfied that [X] has a genuine and real wish to remain within the Catholic School System, and that appropriate weight should be given to those views.
The evidence of Ms S that [X]’s transition from primary school to secondary school will be made much easier and more comfortable for her if she remains in the Catholic School System, is also a major factor in my determination, especially given the stresses that [X] has faced as a result of her parents’ inability to make this decision, and the delays that have been incurred because of that.
Ms S’s evidence is that [X] will happily embrace starting at this school, which will, I am of the view, go a long way to ensuring that [X]’s path through secondary education will commence on a positive note and generate for her the attitude of wanting to go to school and wanting to progress her education.
I accept that [M] School is more conveniently located to where the parties live. However [O] School is not at such a distance from her parents’ homes that [X], and in the future her sisters, will find getting to that school an insurmountable problem. [B] is not that far from where the parties live. It is within the [omitted] area and is only 8 to 9 kilometres from each parent’s home. If not driven to school by her parents, [X] will be able to easily travel to [O] School by public transport.
In relation to the husband’s concerns that [X] will be isolated from friendship groups, again I make the observation that [B] is not far from where she resides with both her parents. Many children in secondary school travel much greater distances than [P] or [omitted] ot [B] in order to attend school. They happily maintain friendship groups, not only locally but across the Melbourne metropolitan area. It has been my observation that those friendships last well past secondary school into many areas of their life into the future.
Whilst the husband raised concerns in relation to the services and curriculum provided by the two schools, I am satisfied that both schools are capable of meeting [X] and her sisters’ needs. I am satisfied that in the event [X] or any of her sisters require additional assistance with their learning, that either school is able to provide that assistance, and that educationally both schools will ensure the girls achieve the best possible secondary education that they can.
My comments in relation to being satisfied as to wife’s capacity to meet the fees for [X], and her sisters in the future, have already been noted. I am satisfied that the wife has the capacity to comply with the order that she be responsible for all fees for [X]’s attendance at [O] School. I am also satisfied that the wife has the capacity to meet her commitment to be responsible for the fees for [Y] and [Z] when they attend [O] School for their secondary education.
Accordingly, I am of the view that all three girls having commenced their schooling at [O] School will be able to complete their education at that school.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Bender FM

Date: 6 February 2012