DREYFUS & KEARNEY
[2011] FamCAFC 7
•24 January 2011
FAMILY COURT OF AUSTRALIA
| DREYFUS & KEARNEY | [2011] FamCAFC 7 |
| FAMILY LAW - APPEAL - CHILDREN –Which secondary school the child should attend – Whether the trial Judge erred in ordering the child to attend the mother’s choice of school – Discretionary judgment - No appealable error established. FAMILY LAW - COSTS – Appellant ordered to pay the respondent’s costs of and incidental to the appeal. |
| Family Law Act 1975 (Cth) |
| APPELLANT: | Mr Dreyfus |
| RESPONDENT: | Ms Kearney |
| FILE NUMBER: | SYC | 50 | of | 2007 |
| APPEAL NUMBER: | EA | 161 | of | 2010 | |
HEARING DATE: | 24 January 2011 | ||||
DATE OF ORDERS: 24 January 2011
| DATE OF REASONS: | 28 January 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Finn and Ainslie-Wallace JJ |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 24 November 2010 |
| LOWER COURT MNC: | [2010] FamCA 1054 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr R Schonell SC and Ms Hausman |
| SOLICITOR FOR THE APPELLANT: | Hugh J Byrne Family Lawyer |
| COUNSEL FOR THE RESPONDENT: | Mr J Lloyd SC |
| SOLICITOR FOR THE RESPONDENT: | Newnhams Solicitors |
Orders made on 24 January 2010
The appeal against the orders made by the Honourable Justice Ryan on 24 November 2010 be dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal, with such costs to be assessed in default of an agreement.
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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 161 of 2010
File Number: SYC 50 of 2007
| Mr Dreyfus |
Appellant
And
| Ms Kearney |
Respondent
REASONS FOR JUDGMENT
These are our reasons for orders made on 24 January 2011 dismissing an appeal against orders made by Ryan J on 24 November 2010 which determine where the child of the parties, B (born in April 1999) will attend school for his secondary schooling commencing in 2011.
The essence of the dispute between the parties is that the mother wanted the child to attend H School and the father wanted the child to attend K School. They could not agree about this issue and sought a determination by the Court.
On 11 November 2010, Ryan J heard the father’s application in which he sought an order that the child attend K School starting in 2011. Her Honour ordered that the child be enrolled at H School in accordance with the orders sought by the mother.
The father challenged this discretionary judgment.
At the outset of the hearing of the appeal, senior counsel for the father conceded the difficulty inherent in a challenge to a discretionary decision. The appeal relied on asserted material errors of fact. Senior counsel for the father acknowledged that in a challenge such as this, the appellant must demonstrate a material error of fact sufficiently extensive as to vitiate the discretionary decision.
The background facts to this matter are set out in her Honour’s judgment, are substantially uncontested and do not need to be repeated in this judgment, save that the parties’ relationship lasted from 1997 to December 1998, they never co-habited and since birth the child has lived with the mother.
As part of the dispute between the parties, the father maintained that he would not pay school fees for the child at any school but K School. There was no dispute that the father has the capacity to pay the required amounts.
The child had attended a private Catholic primary school in the Eastern suburbs of Sydney. As the father had informed the mother that he did not consider it necessary for him to attend a private school for his primary schooling, he had not agreed to pay the school fees and the mother has been responsible for them.
There was a degree of urgency to this matter and it was heard by us on 24 January 2011. The first day of school is later this week. We therefore made orders on 24 January 2011 dismissing the appeal and ordering costs to be paid by the father. We reserved our reasons to a time later in this week. These are those reasons.
Issues on Appeal
Although the Notice of Appeal raised 10 grounds of asserted error, senior counsel for the father argued the appeal on the basis that while there were four matters which underpinned her Honour’s decision, one of those, that relating to the child and mother’s religion, was not an issue on the appeal but the remaining three issues were the subject of the appeal. The remaining three matters, under which the appellant’s grounds of appeal were argued were: the father’s commitment to pay school fees, the mother as the more intuitive in her parenting capacity and the child’s views. Senior counsel for the respondent also addressed those three areas, as do we in these reasons.
Father’s commitment to pay school fees
Before dealing with this argument, it is important to record what her Honour said at paragraph 59 of her reasons, which we think is the foundation for her findings in this regard (see also paragraph 31 of the reasons).
Her Honour said (at paragraph 59):
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’s] 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 … For the Court to create a situation whereby future parental disputation would be virtually certain would not be in the child’s interest. These issues do not arise if the child is enrolled at [H School].
There was no dispute that the father’s only financial contribution to the child’s educational expenses had been the payment for school uniforms (although there was a dispute as to the extent of this contribution).
The father’s position at the trial was that if an order was made for the child to attend K School, he would pay the school fees. The mother accepted that if the child attended H School in accordance with her wishes, she would be responsible for payment of the school fees at H School. She has the financial capacity to pay the fees without assistance from the father if necessary.
Her Honour said at paragraphs 29 and 30 of the judgment:
29. ... Because the father has never paid child support, his financial circumstances and approach to this issue warrant careful scrutiny …
30. 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 …
It was contended that the trial judge erred in finding that the father was in arrears of child support payments in the sum of approximately $86,000.00 and compounded the error by using that finding as the basis for her conclusion that the father was unlikely to honour his promise to pay the child’s school fees if he was enrolled at K School.
Senior counsel for the father conceded that the father neither denied his liability to pay child support nor the assessed amounts as set out in the mother’s schedule. But nevertheless it was contended that the finding by her Honour that the arrears were in the order of $86,000.00 was an error and because her Honour’s other findings were inextricably connected with that finding, it amounted to a material error.
We do not accept that her Honour was in error in making the finding that the father owed approximately $86,000.00 in child support arrears, nor that the father was unlikely to honour his promise to meet the school fees at K School.
The mother said in her affidavit filed 17 August 2010 that she contacted the Child Support Agency in 1999 and a Child Support Assessment was issued to the father. She said:
41. From June 1999 to date child support assessments have been issued to the father. The father has made no contribution towards child support expenses for [the child] since [the child’s] birth.
42. The father is currently in arrears of child support of approximately $86,000.00 …
The mother annexed a schedule to her affidavit in which she set out the assessments issued to the father from time to time, and the income on which the assessment was made. At the date of the hearing, the father was assessed as being liable to pay $456.67 per month against an income of $54,842.00.
In his affidavit filed in the proceedings on 13 September 2010, the father referred to the asserted arrears and said (at paragraph 42), “I dispute that amount”. The mother was not challenged in cross-examination on her evidence that the father owed approximately $86,000.00 in arrears of child support.
The father swore a Financial Statement in the proceedings on 11 November 2010 in which he asserted that he has no liability for child support payments. This was demonstrably incorrect as the following shows.
The father was cross-examined on this assertion. He said (at p 11 of the transcript of 11 November 2010):
To me, child support is a … set payment above anything else every month, which I clearly said I don’t do.
During cross-examination of the mother, counsel for the father put to her (at p 36 of the transcript of 11 November 2010):
Of course, because the burden that you have told the court about, the arrears of child support of $86,000, if one works out the school fees to [K School] are going to be $25,000 a year, then at least that would go some way to … If the father pays minimum $25,000 per year for the boy to go to [K School] and if you multiply it by five, at least you will be in some – compensated for all of the financial burden you have carried to date …
We are of the view that this exchange, and that which we set out below, clearly carried the implication that the father did indeed owe arrears of child support in the order asserted by the mother.
In the course of submissions, there was a discussion between counsel for the father and the trial judge in which the trial judge wondered how she could make an enforceable order to guarantee six years of school fees (p 52 of the transcript of 11 November 2010), to which we will later return. However, in the course of the discussion counsel for the father said (p 53 of the transcript of 11 November 2010):
He might be found to be somewhat wanting on the credibility stakes in terms of providing financial support for the child for the reasons that we have just been discussion [sic]; doesn’t contribute to school fees, doesn’t contribute other than towards some school uniforms. It’s been a bit of a drop in the ocean, really.
We thus do not accept the contention that the evidence did not entitle her Honour to make a finding that the father was in arrears of child support in the sum of approximately $86,000.00. We find that there was ample evidence on which her Honour could comfortably make that finding.
First, the schedule of child support arrears relied upon by the mother was not challenged nor was her contention that the arrears were $86,000.00. Secondly, the father admitted that he did not pay child support payments as assessed (see paragraph 23 of these reasons for judgment). Thirdly, the question put by the father’s counsel described in paragraph 24 of our reasons does not contain any reservation that the father disputed the sum of arrears. For these reasons we consider that it was open to her Honour on the evidence to find, as she did, that the father was in arrears of child support payments in the sum of approximately $86,000.00.
Even if the Court had accepted senior counsel’s argument that her Honour was not entitled to find that the sum of arrears owing by the father was approximately $86,000.00, this error would not have been material. In our view the father’s admissions established the gravamen of her Honour’s concern which was that he had not complied with his legal liability in the past and she was, in our view, entitled to rely on that in determining the likely future course.
Taken in the context of the evidence to which we have referred, her Honour was well entitled to conclude from this evidence that not only did the father have no intention of paying child support in the future, he had no intention of reducing the arrears of child support, which on any view of the evidence were significant.
As part of the general challenge to her Honour’s findings about the school fees, senior counsel for the father argued a further error. At paragraph 31 of the judgment, the trial judge said:
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 …
This point arose during the discussion between the trial judge and counsel for the father to which we have referred. It was in response to her Honour’s question about the enforceability of any order for payment of school fees in light of the structure of the father’s finances, that his counsel suggested that the orders could be, “conditional to and subject to a fund being set up, that is, out of the family trust obviously, because it’s the family trust that clearly meets all of the … father’s expenses in relation to everything”. There was a discussion with the trial judge about the amount required for such a trust. Her Honour suggested something in the order of $200,000 to which counsel countered (p 53 of the transcript of 11 November 2010):
Well, if not - $200,000, your Honour, might be a bit heavy, because why would he be expected to put all of the funds in today for four or five or six years; but certainly a substantial amount. One wouldn’t argue with it all and I think that would be a very fair proposition to put …
It was argued before us that at no time did the trial judge suggest the sum of $250,000.00 to counsel for the father during this discussion and that to suggest in the reasons for judgment a sum of between $200,000.00-$250,000.00 was an error. As we indicated to senior counsel for the father, that range is immaterial because the figure of $200,000.00 was rejected by the father. Further, no counter position was ever put by the father. It is to be observed that her Honour reserved her decision and it was some two weeks before judgment was delivered. If the proposition of establishing a fund from which the fees could be met and thereby allay her Honour’s expressed concerns found favour with the father, he had ample opportunity to make arrangements and, perhaps seek leave to call further evidence. He did not. We find no substance in this asserted error.
Her Honour’s expressed reservations about the father’s commitment to pay, even if the child was enrolled at the school for which he contended, were well within the ambit of her discretion. Significantly in our view, the trial judge reached her ultimate conclusion about this issue being that if the father did not pay the school fees it would create dissention between the parents and difficulties for the child and she was loathe to make orders which were, in that event, not going to be in the child’s interests.
We found that these grounds of appeal were not made out.
Mother as the more intuitive parent
Under this heading it was asserted that there were inconsistent findings made by her Honour which impugned her finding, in particular paragraphs 52 and 53 of her reasons. These two paragraphs have to be read with paragraph 51.
At paragraphs 51, 52 and 53 of the reasons, her Honour said:
51. 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.
52. 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.
53. 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 interest to change, at least in the school setting, his friendship circle. This matter strongly weighs in favour of the mother’s approach.
The motor cycle incident to which her Honour referred was one in which the child was part of a group, although apparently not an active participant, engaged in deliberate vandalism of a teacher’s motor cycle. This incident was brought to the mother’s attention by the child’s principal. When the mother discussed the incident with the child he asked that she not tell the father. The reference to the child discussing H School with his L School teachers is found in the mother’s affidavit filed 10 November 2010 in which she recounted a number of discussions that she had with the child after he had spent time with his father and in which the child expressed concerns that he would be bullied and picked on at H School. On 8 November 2010 the child told his mother that he had spoken to the teachers who had, effectively, reassured him that he would be assigned a senior boy to help him integrate into senior school at H School.
The asserted inconsistent findings which amount to appealable error were said to be her Honour’s agreement with the father’s position that maintaining the child’s group of friends would be a bulwark against bullying, and her finding that the mother’s reasons for severing those friendships weighed in favour of the mother’s preference for H School.
We find no such inconsistency. Her Honour did indeed accept the father’s position about the bullying but it is clear from her reasons that this consideration was outweighed by the mother’s concerns for the adverse peer pressure and bad conduct engaged in by the child under the influence of that circle of friends.
It was also argued that her Honour’s finding that the child preferred to discuss important personal issues with the mother and therefore she was likely to have a deeper insight into his needs was flawed because the disclosure about the vandalism came not from the child but from the school. While the initial disclosure came from the principal, the child discussed it with the mother and asked that the father not be told. Further, as the mother’s affidavit filed on 10 November 2010 deposes, there were other discussions between them that did not include the father. We find no error in her Honour’s findings.
Views of the child
Her Honour found that the child’s clear preference for school was K School and found that this was a view arrived at without pressure from his father. In fact the evidence was that the father was inclined to favour T College for the child but when the boy indicated a desire to attend K School, he supported him in that.
Her Honour said (at paragraphs 40 and 49 of her reasons):
40. 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 …
49. … 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.
Having ascribed “considerable weight” to the child’s views, it was argued that the trial judge failed to give them that ascribed weight and/or failed to provide sufficient explanation as to why, in that event, she made orders that did not give effect to his views.
We do not find this ground of asserted error made out. Her Honour found (at paragraph 50 of the reasons) that it was, “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”.
Her Honour then considered and weighed all the relevant matters together with the child’s views. These included:
a)The parents’ positions about maintaining existing friendships and her Honour considered and made findings about potential bullying and protections against it (paragraphs 51 and 52). In this regard her Honour took into account the mother’s view that it was in the child’s interest to cease his association with some of his current friends (paragraph 55);
b)Her Honour found that at either school, his parents will assist him to make and foster friendships (paragraph 55);
c)She considered the child’s relationship with the mother (paragraph 53);
d)Her Honour found that the child’s relationship with both parents would not be adversely affected, no matter which school he eventually attended (paragraph 54);
e)She took into account and discussed the pros and cons involved in the travel that would be required between the parents’ homes and both schools (paragraphs 54 and 55);
f)Her Honour found that as a talented sportsman the child was likely to excel at either school (paragraph 56);
g)Although it was intended the child be a day pupil at either school, boarding was an available option at both schools (paragraph 57);
h)H School is a Catholic school at which his religious education in that faith would be continued. Both the child and his mother are practising Catholics and the child was recently confirmed. Her Honour found that the values and religion which have figured significantly in his primary education can be continued into senior school and that these were important factors in favour of H School (paragraph 58);
i)Finally, her Honour considered the payment of fees and, as we have noted, found that there was a likelihood that the father would not make good his promise to pay the fees to K School, thus causing distress for the child which would not be in his interests (paragraph 60).
Her Honour concluded at paragraph 60:
I am persuaded it is in the child’s best interest that he attends [H School]. I am conscious that 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 …
Having found that the child’s views were (of themselves) deserving of considerable weight, it is clear in our opinion that her Honour then considered them in light of the factors that were discussed in her reasons, finally concluding (as she said in paragraph 60) that her decision was not the child’s first choice. It was a finding not only open to her Honour but we are satisfied that her reasons for not giving effect to the child’s views, albeit they deserved considerable weight, were adequately explored.
We do not find this ground of asserted error made out.
The appeal therefore failed and was dismissed.
Costs
The father argued that, in the event the appeal was unsuccessful, each party should bear its own costs. We disagree. As senior counsel for the father conceded at the outset of the appeal, this was a challenge to a discretionary judgment beset with the associated difficulty to which we have earlier adverted. We determined that there to be no substance in the asserted grounds. The appellant should pay the respondent’s costs of the appeal.
I certify that the preceding fifty one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Finn and Ainslie-Wallace JJ) delivered on 28 January 2011.
Legal Associate:
Date: 28 January 2011
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