Dreyfus and Kearney - [2010] FamCA 1054

FAMILY COURT OF AUSTRALIA

DREYFUS & KEARNEY

[2010] FamCA 1054

FAMILY LAW – CHILDREN – Which secondary school the child should attend – Child expressed a clear preference for one school – Child willing to accept parents’ choice of school – Where choice between two upper echelon private boys schools – Where child likely to succeed whichever school is chosen – Where mother has paid all school fees – Where father’s failed to pay child support or school fees - Where father likely to pay some fees then default – Default would trigger further parental disputation – Others factors discussed

Family Law Act 1975 (Cth) ss 60B, 60CC

APPLICANT:

Mr Dreyfus

RESPONDENT:

Ms Kearney

FILE NUMBER:

(P)SYC

2007

DATE DELIVERED:

24 November 2010

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Sydney

JUDGMENT OF:

The Hon. Justice Ryan

HEARING DATE:

11 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Hauseman

SOLICITOR FOR THE APPLICANT:

Hugh J Byrne Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Lloyd SC

SOLICITOR FOR THE RESPONDENT:

Newnhams Solicitors

Orders

The applicant father and the respondent mother shall enrol the child B born … April 1999 at H School for the purpose of the child attending that school from the commencement of the school year 2011.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: (P)SYC 50 of 2007

MR DREYFUS

Applicant

And

MS KEARNEY

Respondent

REASONS FOR JUDGMENT

This is an application for parenting orders in relation to the parties’ son, B (the child) who was born in April 1999. The child is due to commence secondary school in 2011. Ms Kearney (the mother) and Mr Dreyfus (the father) are unable to agree which school the child should attend and thus, the Court must decide.
The parties began a relationship in 1997, which ended in December 1998. They did not cohabit. The child was born 4 – 5 months after the parties ended their relationship and, since his birth, has lived with the mother. He has regularly spent time with the father.
In 2003 the child commenced pre-kindy at L School. This is a Catholic school and is where the child has been educated. Before the child enrolled at L School, the parties discussed his education, including where he would attend school. The father disagreed with the mother’s notion the child commence school at a fee paying school, which notion he said was ridiculous. He suggested that the child start school at B Public School and that the mother wait until he was in year 3 or 4 before he enrolled at a private fee paying school.
The mother had researched L School and regarded it as the right choice for the child. She rejected the father’s state school option. In the face of her determination, the father refused to sign the child’s application form for L School and told the mother, “I will not pay for [the child’s] schooling if I do not have a say in which school he attends”. Although the father was aware the mother would enrol the child at L School, he took no steps to stop her. True to his word, the father has not paid anything towards the child’s substantial school fees. The mother has paid these.
During 2003, whilst the child was in pre-kindy, the parties discussed his secondary education. That year the mother booked the child into H College and S School. She informed the father she had done this. In an exchange of emails in October 2003, the father informed the mother he too was looking at which secondary schools might be appropriate. The father advised he would probably shortly enrol the child at T College and possibly others. Not long after the father enrolled the child at T College.
During 2007 and 2008, the parties had further discussions about the child’s education. The father was in favour of the child leaving L School at the end of year 4 and commencing year 5 at T College. This was because at the end of year 4, many boys would leave L School for either T College or K School. From discussions the father had with T College and K School parents, he thought those schools were “much more educationally advanced than [L School]” and that L School boys attending those schools “were thriving at their new schools”. Because of the departure of so many boys at the end of year 4, the father was concerned about the smaller number of boy students who would be in the child’s class for the last two years of his primary school education. When the father discussed his proposal with the mother, she made plain she considered it to be in the child’s interest to remain at L School. The father also discussed his proposal with the child who wanted to stay at L School. This was because his closest friends would be there until the end of year 6. Notwithstanding the advantages the father considered T College and K School offered, he acceded to the child’s views.
In early 2009 the mother sought the child’s views about where he would like to attend secondary school. She allowed him to choose between two Catholic schools, namely S School or H School. The child chose H School. Thus, in May 2009, the mother and child attended an introduction evening at H School. Following this, the child told her he liked the school and commented on its sporting feel. The mother did not invite the father to attend the introduction evening nor, does it appear, that the child discussed this with him.
During 2009 the father tried to discuss with the mother his idea they move to a shared parenting arrangement and where the child should attend secondary school. The emails attached to the father’s affidavit show the mother neither supported the notion of the father spending more time with the child, nor was she open to alternatives to H School.
In October 2009 the father raised the schooling issue with the child. He said to him, “Your mum won’t even talk to me about what school you are going to go to”. The child replied, “Dad, that’s because mum said I am going to [H School]”. The father said, “Okay. [B] you know your mum wants you to go to [H School] and I want you to go to [T College]. I want you to forget about what we want. Here is a pen and paper. Write the numbers 1, 2 and 3 and list your schools in order of preference.” The child wrote: 1. K School. 2. T College. 3. H School or R School.[1]
[1] Exhibit ‘D’
The child explained he preferred K School because this was where most of his friends were enrolled for secondary school. T college ranked second because he knew a couple of boys enrolled there and H School and R School ranked equal third because he knew of one friend likely to attend each of those schools. The child told his father he had told the mother “heaps of time” K School was his preferred choice.
The father initiated inquiries about K School and met with its head of admissions. Heartened by what he learned, without the mother’s involvement he successfully applied for the child to attend K School as a day student commencing 2011.
Thus, both of the schools under discussion, H School and K School accept the child from 2011.
In May 2010 the father filed an application for parenting orders. Relevantly, he sought orders for the child to be enrolled at K School and to change the child’s living arrangements during school term so that he would primarily live with him.
The mother filed her response to the father’s application on 19 May 2010. Summarised, the mother sought that the father’s application be dismissed and an order which would enable the child to attend H School.
Ms G was appointed the Family Consultant to complete a Children and Parents Issues Assessment. The purpose of this assessment was to provide preliminary expert advice to the family and the Court about the issues and the child’s needs. Ms G interviewed the parties separately on 26 July 2010.
On 4 August 2010, Ms G interviewed the child. He was interviewed alone and informally observed with the parties in the child minding room. To Ms G the child expressed his preference to attend K School but also said that he would accept whatever school decision was made by his parents. As the only schools under consideration were K School and H School, the child’s acceptance of his parent’s decision is in the context of their decision being one of these schools.

Current orders

On 7 March 2007, parenting orders were made by consent in the Federal Magistrates Court. These orders are set out below:
1.      The child [B] born […] April 1999 live with the mother.
2.      The mother have the sole responsibility for the day to day care, welfare and development of [the child] whilst he lives with the mother.
3.      The father spend time with [the child] as follows:
3.1each alternate weekend from 6pm Friday to 6.30pm Sunday commencing 9 March 2007;
3.2each Wednesday from 3 pm until 9.00 am Thursday;
3.3for the whole of the April school holidays in 2008 and each alternate year thereafter;
3.4the second half of the June/July school holidays in each year;
3.5for the whole of the September school holidays in 2007 and each alternate year thereafter;
3.6for the first half of each Christmas school holiday period in each year until 10.30 am on Christmas Day;
3.7from 6 pm Boxing Day until 4 pm New years Eve in 2007 and each alternate year thereafter and;
3.8from 6 pm Boxing Day until 4 pm New Yeas Day in 2008 and each alternate year thereafter.
4.      Orders 3.1 and 3.2 above shall be suspended during school holidays.
5.      The father shall collect [the child] from the mother’s [Sydney] residence or [the child’s] school at the commencement of each period he spends time with [the child] and shall deliver [the child] to the [mother’s] residence at the conclusion of each period.
6.      Each party shall ensure that [the child] telephones the other party regularly whilst [the child] is with that parent.
7.      Both parties be restrained from abusing or denigrating the other.
8.      All previous parenting orders are discharged.
The 2007 orders are the only orders made in relation to the child.

The mother’s circumstances

The mother was born in 1964. The subject child is her only child. The mother and child reside alone in a rented apartment in Sydney. Although the mother has another partner, they live separately. The mother owns a hospitality company and is engaged in property development. In addition to investment property in Sydney, she has a rural property in the Southern Highlands. From the mother’s financial statement filed in these proceedings it is clear she is financially secure and her net worth is significant. As the proprietor of her own business, her hours of employment are flexible and she is able to deliver and collect the child from F or H School if needed. The significance of this is H School provides a school bus that travels between F and the school daily. F is very close to the mother’s home and K is about a 10 minutes drive.
According to the mother, the school bus departs F at about 7.30 am and returns at about 5.30 pm. The mother has seen the bus at F and has this information first hand. The father spoke with the enrolment secretary at H School and said he understood the school bus departed the eastern suburbs at 7.10 am and from the school at 5.30 pm. The evidence does not establish whether the school bus departs only from F and it may be there are other collection points in the eastern suburbs. Because the parties disagree about the bus and travel times, it would have been useful to receive a timetable. However, doing the best I can, because the mother has this evidence first hand, I accept her evidence. It is her understanding the journey is approximately 30 minutes each way. The father estimates the journey is about 45 minutes each way. Classes commence at 8.00 am and the school day ends at 5.00 pm. It follows from my findings about when the school bus departs F that I am satisfied it is generally a 30 minutes journey. However, because traffic conditions vary, I accept there may be occasions when the journey takes 45 minutes. Thus if the child were to attend H School he would need to leave the mother’s home at about 7.15 – 7.20 am and would return at about 5.30 - 5.45 pm. However, if he were to attend K School he would not need to leave the mother’s home until about 15 minutes before class.
The mother and child are practising Catholics. The mother attended private Catholic schools in New Zealand for both primary and secondary school. She and the child attend church together once a month. They are members of eastern suburbs parishes. At the child’s request, he will be confirmed in the Catholic faith in November 2010. From the time the child commenced pre-kindy, it was the mother’s view he would be educated at a Catholic school. Based upon an email dated 15 October 2003, it was contended by the father that the mother indicated she was willing for the child to attend a non-Catholic school. This submission was based upon the mother’s statement “So I’ve got a few bases covered depending upon [the child’s] aptitude at the time. See what you come up with?” Her “bases” were S School and H School. I agree with counsel for the mother that the evidence does not support the submission. L School is a Catholic school, which follows the religious education curriculum developed by the Sydney Catholic Education Office. H School is an independent Catholic school. From her knowledge and enquiries, the mother says that Catholic values are central to H School and its activities. She perceives it has a strong sense of community spirit and is family oriented. The mother is keen for the child to continue a Catholic education and to have the benefit of the values which she believes H School would provide. She has family affiliations with H School, which is where her two Sydney cousins sent their children, with one completing his schooling last year. It is her opinion these boys have turned out nicely, which outcome she believes was influenced by H School.
L School fees are approximately $5,000 per term. The school fees at H School are similar and slightly higher at K School. There is no dispute the mother has the capacity to pay, and would pay, school fees and associated education expenses.

The father’s circumstances

The father resides in inner Sydney. He resides alone other than when the child is with him.
The father operates a small practice and is able to make appointments with clients so that they do not clash with his parenting responsibilities. He spends time with the child in accordance with the 2007 orders, which involves, inter alia, him collecting and returning the child from school.
The child plays soccer through L School and, on Tuesday and Thursday afternoons, he trains with his club soccer team. The father shares the child’s interest in sport and on Wednesday afternoons accompanies him to an elite soccer academy. During 2009, the father helped coach the child’s soccer team. Twice in 2009, the father travelled interstate with the child’s team for competitions. The father attends all the child’s weekend soccer matches. The mother takes the child to his extra-curricular activities and sport functions when he is in her care. It would appear that during 2009 when the father coached the child’s soccer team the mother did not attend those matches.
The father attended Catholic schools in Victoria for both his primary and secondary education. He is no longer a practising Catholic. Although the father disputed the mother’s claim she is a practising Catholic, their contact is limited and he does not have such knowledge of her circumstances and views about these matters that his evidence on this subject should be preferred to hers. The father acknowledged the child is a practising Catholic.
Until the child told the father it was his preference to attend K School, the father proposed that he attend T College. It follows I do not accept that the father was instrumental in persuading the child to nominate K School and am satisfied this notion came from the child. The father supports K School because this is what the child wants. He says he is concerned H School is too large a school for the child and, because none of the child’s close friends will attend there, he will not have the peer support available to him at K School.
On 10 November 2010, without discussing his plans with the mother, the father and child attended a twilight introduction to K School. This involved a half hour presentation by the Principal followed by a small group tour of the school. The child enjoyed the presentation and told the father he was really looking forward to attending K School. K School facilities impressed the father and the presentation reinforced his opinion the child would be happy and thrive at that school. It is his opinion K School has a superior academic reputation, in terms of Higher School Certificate results, than H School. He attached to his affidavit “The [K School] Teaching and Learning Framework” which asserts a unique educational methodology designed to take its students learning above expectations. The father agreed H School excels in sport, particularly rugby union. However, he emphasised the child has a small frame and weighs 31 kilograms, approximately 10 – 20 kilograms lighter than his peer group. The child is very athletic and sporty, particularly with field sports and soccer. The father considered that the child would do well in these sports at K School.
The father said he is willing and able to pay K School fees. These are approximately $25,000 annually. Because the father has never paid child support, his financial circumstances and approach to this issue warrant careful scrutiny. In his financial statement, the father reveals he conducts his financial advisory business through the Dreyfus Family Trust. He is one of two trustees and is a beneficiary. His average weekly income via trust distributions is $1,500. This is the father’s sole source of income. His assets comprise furniture and personalty worth $2,000. He drives an Alfa Romeo, which is registered to the trust. The trust has $880,000 in a margin loan account and a separate investment account with $250,000. The father holds approximately $30,000 on trust for the child. In his financial statement the father identifies the funds held by the family trust are his. This would suggest that the other trustee, who has the same surname as him, is a friendly trustee who cooperates with him in terms of trustee decisions and distributions. There is no evidence trust distributions have been made to other beneficiaries. The father’s income anticipated for the current financial year is broadly consistent with the income he received in the 2009/2010 taxation year. It would appear the father is personally liable for a $250,000 margin loan advanced to the trust.
Curiously, the father disclosed little else about his financial circumstances and does not for example, reveal anything about housing costs and associated expenses. As the father has no personal savings I infer his expenses exhaust his income. In answer to question 31, the father wrongly asserted there was a child support assessment of “Nil” and correctly deposed he pays no child support. He is subject to a Child Support Assessment to pay $456.67 per month. The father is approximately $86,000 in arrears. His silence on this matter would indicate he has no plan to reduce his arrears or comply with the assessment. The trust structure makes it difficult for the Child Support Agency and/or the mother to enforce his compliance with his child support obligations. It would appear should the father wish to, he could arrange for the trust to distribute more than $1,500 each week and, for example, could pay child support and receive sufficient funds to pay school fees.

Counsel for the father observed the child’s attendance at K School, could be made conditional upon the father establishing a fund that secured K School’s fees. No such fund was proposed in the orders sought by him. Thus, to reality check this notion, I suggested this would mean the father would need to establish a fund in the vicinity of $200,000 - $250,000. There are sufficient funds in the family trust to do this. The father was unwilling to establish a fund of this magnitude and it was suggested the Court might require a lesser unspecified sum. It was not clear whether the suggested fund would be term by term or, perhaps, a year’s fees. Nor was it clear whether the father would include additional educational costs. Counsel for the father pointed out that notwithstanding his evidence he would pay K School fees, the Court would be satisfied if he failed to do this, that the mother would. Although I am satisfied she would, this outcome, which is far from fanciful, would almost certainly result in further disputation and exacerbate the parties’ tense relationship. Deterioration in the parties’ relationship would not be in the child’s interests.
Before leaving this point, at par 4 of his affidavit filed 13 September 2010, the father records a conversation with the mother in which she asked him for his commitment to “help me fund the child’s education”. The father said: “I recall that I said that I agreed to do so.” However, when the time came for the father to make good on this commitment he refused. At that point, he added an extra condition, which was that he would not pay or contribute to the child’s schooling unless he had a say in which school the child would attend. The father deposed: “This is a position which I maintain to this day.” The mother was cross-examined about whether she would accept a contribution from the father towards H School fees. She would welcome his contribution. Although he had the opportunity to say he would contribute towards H School fees, the father did not. It follows the proposition was at best theoretical. Nor did the father indicate his participation in this hearing gave him sufficient “say” to activate his earlier promise. Unfortunately, it is necessary to conclude that at best the father is willing to contribute to school fees provided the child attends a school nominated by the father. I will return to this matter.
The father pointed out that he meets the child’s costs when he is with him and in the last two years has taken the child on holidays and two interstate soccer competitions. In addition, that he contributed towards the child’s uniforms. About the former there is no issue, the latter was contentious. In support of his claim he pays for the child’s uniforms, the father produced emails to this effect which he exchanged with the mother in 2005. No documents were produced beyond this date. Nor, did the father disclose any such payments in his financial statement. On balance, I am satisfied that since 2005, the father has not paid for the child’s uniforms. He has not paid other associated school expenses. The father’s approach to child support and his financial support of the child’s education reflects poorly upon his attitude towards his parental responsibilities.
The father’s home is further away from H School and F than is the mother’s. K School is about equidistant. Thus, at H School, when the child is with the father there would be slightly longer travel time from his home than the mother’s. I infer, as is his current practice, the father would drive the child to and from K School and F.

Discussion

Orders in relation to where a child is to attend school are parenting orders in relation to which the child’s best interests are the paramount consideration. These issues arise in the context of Pt VII of the Family Law Act 1975 (Cth) (the Act), in relation to which s 60B sets out the objects and the principles which underline those objects. The objects promote an outcome which ensures that children receive adequate and proper parenting to help them achieve their full potential and that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. These include a raft of considerations, which address matters such as the benefit to the child of having a meaningful relationship with both parents, risk issues, the child’s views and the effect on the child of the proposals under consideration. To ensure that the Court is able to address the infinite variety of individual children’s circumstances which can arise, s 60CC(3)(m) permits the Court to take into account any other fact or circumstance beyond those listed as primary and additional considerations which the Court considers relevant. The Court is required to consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or hers. Ultimately, the weight attached to each factor is a matter for the Court’s discretion.
The parties agree the choice of school is not determined by which is the better school. Rather, as the discussion above revealed, resolution of this issue requires the Court decide the issue by reference to the child’s best interests. Although the parties were enthusiastic advocates for their nominated school, the evidence does not enable me to determine the better school. No doubt, even if armed with information, which might make it easier to make such a determination, it is likely this would be something about which minds would differ. There was no dispute the Court is asked to decide between two upper echelon boys schools. Or, that both schools have attractive facilities and seek to offer their students a well-rounded education, which equips them well for the future. While there are differences to which I have referred, fortunately the Court’s choice is between two very good schools.
The family consultant described the child, as a “much loved only child” of both parents, with whom he enjoys “a close and loving relationship”. It is the child’s belief that his parents are able to make appropriate decisions, including choice of school, for him. These observations are borne out by the evidence.
The family consultant explored the child’s views about his secondary education and he confirmed what the parties already knew, namely his preference is to attend K School. The child spoke positively about L School and his friends there who, he pointed out he socialises with on weekends. He described his sporting interests and informed the family consultant he had broken six records in athletics this year. Interestingly, he was concerned that H School with its significant focus on sports would be a more competitive sports setting than K School. He thought K School did not have the same focus on sporting prowess as H School and he would have greater prospects of competitive success in the smaller school. In other words, as counsel for the father described it, he was attracted by the benefits of being “a big fish in a small pond.” The child discussed the tensions between his parents and his desire that they could be friends and “maybe even have a cup of coffee together.” Unless there is a significant improvement in the parental relationship, the child’s desire at least in this respect, is unlikely to be fulfilled.
In terms of the amount of time the child spends with his parents, he opined that any major change to the current arrangements could be confusing. In response to the family consultant’s suggestion his weekends with his father might continue until Monday morning, she reported: “[The child] said that this would ensure that there were no disputes between his parents about his changeover times and thus, it would be a good idea.” When these remarks are considered in the context of the child’s remark that he “wouldn’t mind” spending additional time with the father, there is scant material in the issues assessment that would lend support to the father’s application that the child primarily live with him or for an equal time order.
The child is intelligent and excels academically. He would appear to be of at least age appropriate maturity. At both schools, he is highly likely to continue to excel academically. I do not accept his academic or university prospects are advanced at one school in preference to the other.
After the issues assessment report was released, the parties continued to discuss with the child where he would attend school. On 14 October 2010, in an attempt to hide she was upset, the mother went to her room whilst the child ate his dinner. About five or 10 minutes later, he came to the mother’s room and hugged her. Whilst hugging her he began to hyperventilate and started to cry. She said: “The child’s hands were turned in towards his wrists and he appeared not to be able to catch his breath. He ran to the toilet where he vomited.” The child was very distressed, crying and shaking. The mother held him and said: “Whatever it is, it’s going to be alright. Why are you so upset? You know you can tell me anything.” The child replied: “Dad said to me if I said anything nice about [H School] to anyone that he would never see me again. He also says that he has spent a fortune on this for me so I can’t let him down.” As the child said this, he shook and cried uncontrollably. The mother said: “Everything is going to be alright. I am sure dad didn’t mean what he said. Dad loves you very much”.
The child continued to cry. The mother and he lay down and after he settled, he said: “I don’t mind going to [H School]. One of the boys at Little Athletics is going. He is very good at long distance but I can beat him at short distance.” The mother replied: “[B] it’s alright. Don’t worry about what school you go to. You shouldn’t be this upset. Just remember mum and dad love you very much.” The mother lay with the child until he fell asleep.
The following day the mother spoke with Ms C at L School. She recounted the child’s distress and sought Ms C’s advice. The child’s teacher had also spoken to Ms C and expressed concern about his classroom behaviour. He had also been implicated as a bystander when, as part of a group of three classmates, all of whom are to attend K School, they intentionally damaged a teacher’s motor cycle. Ms C referred the child to the school counsellor.
The school counsellor spoke with the mother on 19 October 2010 and met with the child on 21 October 2010. With the child, the school counsellor explored his non-compliant behaviour at school and family conflict related to secondary school. In relation to the latter the school counsellor reported:
[The child] shared that his mother and father both had very strong and opposing preferences for high school [The mother’s] preference is that [the child] attend [H School] as she believes that [the child] needs more structure and new peer influences. [The father’s] preference is that [the child] attends [K School]. [The child] stated that his clear preference is to attend [K School] (to be with friends), but he would be okay with either. [The child] stated that he is aware that this decision will be decided in a court case. [The child] and I discussed [the mother’s] concern that he was/is distressed by his dad’s comments that he would not see him if he went to [H School]. [The child] stated that he was upset, but is okay now – he shared that his dad sometimes says things he doesn’t really mean. [The child] shared that he [is] used to things with mum and dad and he feels that he copes with things well the majority of time.
The school counsellor spoke with the mother the following day and recommended that she arrange for the child to see a male psychologist. The counsellor explained:
I think an important aim of intervention will be to appeal to [the child] to make considered decisions about his actions and accept that rules are rules and that there are no special considerations for anyone. The [psychologist] may also be able to explore the impact of any hurt feelings that may be driving [the child’s] ‘world view’ affecting his decisions and behaviour.
She opined:
That some short term assistance, should pave a smoother path for [the child] in senior school.
The child continued to discuss the school issue with the mother. She encouraged him to do his own research and to talk to his teachers. On 8 November 2010, the child told her he had spoken to two L School teachers, one of whom previously taught at H School. The teacher who previously taught at H School told him he should not worry about bullying at H School because each new student has a year 11 and 12 student, in effect, as a student mentor. He received similarly supportive remarks from the other teacher who told him she believed H School was better suited to him.
The father denied he told the child he would not see him if he attended H School. While this may not be the message the father sought to convey, it is how the child interpreted the father’s remarks. It is somewhat surprising the father was oblivious to the distress his discussions had caused the child. Intuitive, child focused parenting generally enables a parent to appreciate when things said or done by that parent deeply distress their child. In relation to this issue, the father lacked insight into the effect of his words on the child.
Perhaps with the assistance of the psychologist to whom the child has been referred, the father can address the distress his actions have caused the child.
Notwithstanding these events, the chronology reveals the child’s views in favour of K School were formed before the events just discussed took place. If the child believed that by attending H School contact with the father would end, this would have been revealed to the family consultant. The child’s rationale for his preference for K School involves the types of considerations likely to influence any child’s choice of schools. That is, friendships, the continuance of established networks and the opportunity to excel in a perceived less competitive environment. The child’s views in favour of K School thus warrant considerable weight.
It is also noteworthy that the child is willing to accept whatever decision, either K School or H School, his parents make. This has been a recurrent theme and which warrants reasonable weight, albeit less than the child’s preference.
The child was bullied at school in years 3 and 4, which, according to the mother, has resulted in behaviours that cause her concern. Whilst she has worked hard to encourage the child’s friendships, including by establishing her own network with L School parents and having the child’s class mates as guests at her rural property, she is worried about the child’s position in his peer group. Particularly, what she sees as his willingness to follow the crowd, act contrary to his interests and, on occasion, social norms. Her concerns heightened when the child was embroiled in the motor cycle incident. There was no challenge to her evidence that notwithstanding her generosity, similar invitations have not been extended to the child. The mother is troubled that in secondary school, if he remains in his current peer group, not only will the child have difficulties with friendships, but also the risk of anti-social behaviour may escalate. Her point being, although the child is influenced by his desire to maintain his friendship circle because that group includes a number of children whose conduct troubles her, she wants that nexus to be broken.
The father disagrees with the mother’s approach and emphasised how all but one L School boy would go on to K School. Because the child would commence K School as part of an established friendship circle the father believes this minimises the risk of further bullying. I agree. Fortunately, both schools have strategies in place to address this issue and the risk of bullying at either school would not appear high.
It is noteworthy, the child withheld from the father that he engaged in rule breaking behaviour at school, that he had been referred to the school counsellor and spoken with his teachers about H School. This suggests that although the child is close to the father, there are important personal issues which he is willing to discuss with the mother, but not the father. Perhaps this is a consequence of the mother having been the child’s primary carer from birth. In relation to whether it is beneficial to the child to promote or reduce his contact with his current friendship circle, the mother is better placed to evaluate these considerations than the father. The mother’s views on this subject are credible and I accept that for the reasons described by her, it is in the child’s interests to change, at least in the school setting, his friendship circle. This matter strongly weighs in favour of the mother’s approach.
The child’s good relationships with his parents are unlikely to be adversely affected whichever school is selected. However, one of the obvious and significant advantages of K School is the child would attend the school which is closest to his parents’ homes. Although each of them lives in rented accommodation and could move closer to H School there are no plans to do this. Both have established their business lives in the eastern suburbs and thus I infer it is unlikely either will move closer to H School. Attendance at K School would thus involve travel which would not intrude into the amount of time the child has with his parents and his current friends. On the other hand if the child attends H School travel time would intrude into the amount of time he has with the father for no more than a couple of hours each week. This is unlikely to influence the nature of the child’s relationship with him and thus, would not, substantially affect the child’s right to maintain personal relations and direct contact with him on a regular basis. Because the child lives primarily with the mother, his time with her on the H School option is more significantly eroded through travel. Even so, the reduction in time is a matter of hours, which is unlikely to influence the child’s relationship with her. In the event the child’s time is eventually shared equally between his parents, I remain of the view travel time is unlikely to adversely impact upon his relationships with either party.
Travel to H School would make it difficult for the child to be extensively engaged during the week with his current friends and as time passes, these friendships may weaken. After school sports with his current clubs would also probably cease. Until the child is able to replace those friendships, there would be an adjustment period during which he would probably feel unsettled and at times lonely. However, the child is highly likely to make new friends at H School, including children with whom he would be travelling on the school bus daily. I infer these children would also reside in the eastern suburbs. While the number would be smaller, the child may well establish a H School friendship circle that includes children who live in the same area as him. If, per chance, a H School friendship circle comprised mainly children who either are boarders or live closer to the school, the parties have demonstrated their willingness and ability to foster the child’s friendships. Although it would involve more effort, the parties are able to promote any such friendships.
Considerable attention was given to the child’s sporting prowess. I agree it will promote his self esteem for him to continue to excel at sports and to enjoy the accolades which come from success. However, I am not persuaded this outcome is more probable or likely to endure at K School. Again, the evidence disclosed both schools promote physical activity and participation in a wide variety of sports. At both schools, the child is likely to excel. Because it is a larger school, the child may attain fewer records at H School, but he may well find, if his father’s views on this matter prove to be correct, that successful competition is its own reward. The child’s attendance at H School, which the parties agree is renowned for its sporting success, allays concerns which might otherwise arise because the child could not continue non school based sports.

An issue which must be considered is the father’s contention that the child’s attendance at H School as a day student would be, in effect, stage one of the mother’s strategy that he eventually boards. The father conceded the mother had not said or evinced such an intention. Both parties agree whichever school the child attends will be as a day student. Both schools have boarding houses and, if in the future the child would like to board, this option is available whichever school is chosen. The father’s information from H School, however, is that from year 9 it begins to encourage students to start boarding and in years 11 and 12 almost all board. If this is correct, it does not follow that unless the child wants to board, the mother or H School in the second half of his secondary education would require him to do this. It probably means that in years 11 and 12 he would be part of a group of day students in a larger group of boarders. The evidence does not establish that this would be socially or educationally to the child’s disadvantage.
The father was cross-examined about K School’s religious curriculum. In particular, whether the child would continue to receive religious education in Catholicism. He said he was unaware what religious education, if any, the child would receive there. In the material from K School attached to the father’s affidavit there is no mention of religious education. I agree with the father it is the responsibility of parents to inculcate their children with sound values and ethics. However, children are exposed to many other influences and according to the mother, it is important the child continues to have a formal Catholic education. This way, the values and religion, which have been a significant component of his education to date and are part of his identity would be reinforced and continue. I agree these are significant matters that weigh in favour of H School.
Payment of school fees is another significant matter. For reasons that need not be repeated, I have grave reservations about the father’s commitment to pay even K School fees. His poor record in relation to child support and the child’s education expenses thus far, weighs heavily against the Court’s ability to accept his commitment to do this. The most likely scenario is he would make early payments and then default. This would cause the parties’ relationship to deteriorate further and although the mother would meet the child’s ongoing fees, the outcome would not be without cost to the child. As his discussion with the family consultant and his recent distress reveals, the tensions between his parents and this dispute has weighed heavily on him. For the Court to create a situation whereby future parental disputation would be virtually certain would not be in the child’s interests. These issues do not arise if the child is enrolled at H School.
I am persuaded it is in the child’s best interest that he attends H School. I am conscious this is not the child’s first choice. H School is nonetheless a school which the child regards as acceptable to him and where, for some time, he expected to attend. Although this will initially present him with greater challenges than K School, the parties have the capacity to ensure his transition proceeds smoothly. It is my hope and expectation now that this issue has been decided the parties will reflect upon what they can do to present a more united approach as parents. This is something for which their son yearns.
For these reasons, I make the orders identified at the beginning of this judgment.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 24 November 2010.

Associate:

Date: 24 November 2010