Dunstan & Carleton
[2024] FedCFamC2F 290
•22 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dunstan & Carleton [2024] FedCFamC2F 290
File number(s): ADC 242 of 2024 Judgment of: JUDGE BROWN Date of judgment: 22 February 2024 Catchwords: FAMILY LAW – parenting - interim hearing – schooling arrangements for a child aged 12 years old – where child attends two separate high schools during each school week – disagreement between parents as to which school he should attend – where due to time constraints the judge met with child – decision made on attendance at only one school – applications dismissed Legislation: Australian Constitution Ch III
Family Law Act 1975 (Cth) Pt VII, XI, Div 12A, s 60B
Division: Division 2 Family Law Number of paragraphs: 62 Date of hearing: 22 February 2024 Place: Adelaide Counsel for the Applicant: Appearing in person Counsel for the Respondent: Mr Laidlaw Solicitor for the Respondent: Matthew Mitchell Solicitors ORDERS
ADC 242 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DUNSTAN
Applicant
AND: MR CARLETON
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
22 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The child X born in 2011 do solely attend at B School as and from 26 February 2024.
2.All extant applications do stand as dismissed and the matter be finalised.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
EX TEMPOREJUDGE BROWN:
INTRODUCTION
The reasons for judgment in this matter were delivered orally following the interim hearing between the parties concerned. The reasons have been corrected to remove errors of expression and syntax in an attempt to make the orally delivered reasons amenable to being read.
The matter of Ms Dunstan and Mr Carleton comes before me today for decision. It is an unusual case. The parties are the parents of two children, X, who was born in 2011, and his younger sister Y, who was born in 2013.
Ms Dunstan is the applicant in the proceedings. She is a person who is about 42 years of age. She lives in Suburb C and she is an educator by occupation. Mr Carleton is a little older. He is 48 years of age and he lives in Suburb D and he is a tradesperson.
By way of general background, the parties were in a relationship from about 2010 and separated in 2015, and since about 2017 they have had what is usually described as a shared care relationship for their two children.
Essentially, on a fortnightly basis, each of the children live with their mother and father from Wednesday to Sunday and for the rest of the week with the other parent. So, in the jargon, it is a four/three, three/four arrangement.
In the current proceedings I have not been called upon to explore how this arrangement has worked for either of the parties in any great detail and more importantly any view either X or Y have about it.
This is an interim hearing. What that means is that the hearing is truncated in nature and takes place largely on the basis of the evidence contained in affidavits filed with the court, which are not tested through cross-examination. As I will detail shortly, in this particular matter, there has been one significant departure from this practice.
At final hearing, what happens is that each of the parties goes into the witness box and they are cross-examined – asked questions by the other party or his or her lawyer – and I make findings of fact about what did or did not happen in the relationship about issues that are controversial between them. In addition, at final hearing, there is usually more evidence because there is more time to gather evidence about the family concerned, most usually in the form of a family report from a suitably qualified expert.
In the current matter, there has not been time for the case to be fully prepared, because it comes into Court due to a crisis having arisen in the family. As a result, there is simply no time to defer the case for a final hearing, quite possibly in many months’ time.
Both Ms Dunstan and Mr Carleton agree that I have to decide the issue which has arisen and I have to decide it as quickly as possible so that everybody can move on and have certainty, particularly X.
However, having said that, I think I would be naïve to think that the parties’ coparenting relationship was not without its challenges. Certainly, that is Ms Dunstan’s view, and at the present time, it would seem to be the case that handovers are carefully controlled and there is not a great deal of communication that is not strained or tense.
In her submissions to me yesterday, Ms Dunstan essentially said that the parties parented the two children in parallel. That is not an uncommon thing when there is a lot of tension between parents, and essentially, the reality is that it is like oil and water. If you put oil and water into the one container, they take their own level and they never mix.
That seems to be what happens in this family. The two households are quite distinct and never mix and communications are difficult to say the least. Clearly, the children concerned have to move between the two arrangements, and that it would seem can be difficult for them.
Anyway, as I indicated, X is 12, 13 this year, so he has reached the stage in his life when he has to go to high school. This year, I think, school in South Australia started on 29 January 2024.
The parties are not able to agree on which high school X should attend. Regrettably, that application did not come before me until yesterday, 21 February 2024. Today obviously is 22 February 2024, so school has been going for about three weeks.
As a consequence of previous parenting arrangements, and because of the compromised capacity the parties have to make decisions about things to do with their children, something highly unusual has happened.
At the present time, X is going to two secondary schools essentially at the same time, in parallel, if you like. For some days of the week, he goes to F School, which is in Suburb E, and the other portion of the week, he goes to G School, which is in Suburb H.
Both parties, I think, acknowledged yesterday that is unworkable, and I agree with that. I just think it cannot work. I am really concerned about X, because it is an unusual thing for a child to go to two schools at the same time, and he is likely to stand out and perhaps the other kids might comment upon it and tease him. I do not know. I think everyone agrees that X is a shy child to some extent, so that is not good, and obviously, from an educational point of view, it does not help with continuity of instruction in his subjects.
In that context, I took the unusual step of saying that I personally, as a judge, would speak with X. That is not something that is routinely done. However, I thought this crisis really had to be resolved sooner rather than later.
If I had got a family report or a child impact report, even if I had asked for it to be done urgently, there was the possibility that that would not be available until April, most of term 1 would have been over.
I was worried about X and what going to two schools would mean for him for a whole term possibly. Yesterday, it was apparent that neither of the parties was prepared to budge. Each thought they were right, and it was a matter of principle for each of them.
For that reason, I decided that I would speak with X. I did so for a number of reasons. Firstly, I wanted to check in with him and explain to him that it was going to be my decision not necessarily his. Secondly, I wanted to see what he was like and if he had any thoughts he was willing to share with me.
Clearly, the outcome of the case must have implications for X, because he will have to live with the decision. It is his life we are talking about. I am not simply resolving a dispute between the parents, who are citizens, who are unable to agree about some controversy which is arisen in their lives. It is more complicated than that.
This is not like other incidents of civil litigation, which are relatively commonplace. People in our society have disagreements with their plumbers or their electricians or their tradespeople who assert that they have done a poor job or have not given value for money, and those types of cases end up in Local Court or, if there is a lot of money involved, in a higher Court.
After those decisions are made, the people concerned can elect never to see the plumber or electrician ever again. You go your separate ways. In this type of dispute, you are not in that happy position, because you are locked together as the parents of X, and indeed, X is not a party to these proceedings, but he has to live with the consequences of it.
For those reasons, attempts have been made by the Commonwealth Government to make proceedings involving children a little less adversarial. Whether those efforts have been successful or not I do not know, but if you are interested, they are contained in Division 12A of Part VII of the Family Law Act 1975 (Cth)[1], where are set out a number of principles regarding how I am directed to conduct child-related proceedings.
[1] Hereinafter referred to as “the Act”.
I have got to consider the needs of the child who is concerned and the impact the proceedings are likely to have on X. I have got to take control of the proceedings if I possibly can and direct them.
I have got to protect children from coming to harm, including from being exposed to parental conflict. I am also directed to conduct proceedings without undue delay and with as little formality and legal technicality and form as possible.
In that context, I decided that I will take the unusual step and meet X, and the parties agreed that I should. I was not, I hope, on a frolic of my own, and I decided that I would speak with X with the assistance of an expert, who is a psychologist. She is a Court Child Expert, and her name is Ms J, and she helped me speak to X.
It is also necessary for me to explain as best I can what are the legal principles I have to apply to a case such as this one. As everyone knows, it is X’s interests that are the most important, not the parties. His best interests are the paramount concern in the case.
In so doing, I have to look to a long list of matters in the Act. I have got to ensure that he has a meaningful level of relationship with his parents. I have got to ensure that he is protected from coming to harm as a consequence of being exposed to neglect or abuse or family violence.
There is a long list of other matters, which are called additional considerations. There are about 14 of those, and in a case like this one, the views of the child are to be given weight, according to his maturity and his level of understanding. I have also got to consider the nature of the relationship with each of his parents and also practical considerations.
The authorities, so far as schooling is concerned, are relatively clear and consistent. It is not my job to consider the merits of schools; is one school particularly better than the other? I have to think about issues to do with the practicality of a parent who’s the primary carer of a child.
Within the theoretical underpinning of the Act, which is contained in section 60B, basically I have got to select the school that I think will best serve X’s best interests. Section 60B contains the principles and objects of the Act, which includes a number of things. I have got to ensure that the children are right to be cared for by both their parents, and in general terms, I am required to encourage you, if at all possible, to make joint decisions in respect of your children.
Having given a bit of a background to your relationship, it is necessary, I think, to underline what brings you in this Court. Clearly, each of you knew leading up to the start of 2024 that X would have to go to high school. It is not a new issue. It has been on the table since at least last year.
Initially, I think it was the case that it was hoped that X could attend K School, which is a selective school. Neither of the parties live in its zoning area, as I understand, and X had to do an exam. He was not accepted into K School. So, there was a gap in the decision making process given K School was out.
The difficulties have arisen as to how the decision which follows that gap are to be resolved. Each party seems to have taken some steps unilaterally leading to the current impasse. Ms Dunstan’s position was that F School was the second choice and so it was obvious that this was what would happen.
Mr Carleton has it slightly different and he made some inquiries at G School, when K School fell through and took X for a view of the school, and it was all good, and the enrolment was made. He asserts that X said he was very impressed with G School.
After that, apparently, acceptance came from F School, but Mr Carleton, in chronological terms, got in first with G School, but Ms Dunstan was not far behind with F School.
Each party has a view as to why his or her preference is the better one, and each has prepared a lengthy affidavit. Ms Dunstan’s affidavit is 55 paragraphs long. She is clearly an articulate and intelligent person.
I suspect she may have had some legal assistance in preparing her affidavit, but she is not to be criticised for that. Mr Carleton’s affidavit is 82 pages long, and it was assisted by his solicitor, Mr Laidlaw.
I am not going to get into the technicalities of the spacing or how many words there are, but each party has clearly put his or her best foot forward as to why they want the particular decision made.
From Ms Dunstan’s point of view, there are issues to do with financial matters. There is a child support assessment, and as both of the parties will know, child support is calculated by reference to child support income and also percentages of care, which are the same, I would think. I have not seen an assessment. It is fifty-fifty.
Mr Carleton has, apparently, estimated child support income for the mother, who is a PAYG taxpayer. Anyway, there are issues about that, and Ms Dunstan has been assessed to pay Mr Carleton child support. Fees for G School are about $5,000 a year and F School is much less, $840.
Mr Carleton has said he will pay for the fees, but that worries Ms Dunstan, given the child support position. Her preference is for X to attend a non-religious school, as it is her position that neither of the parties is religiously inclined.
The parties live in outer suburbs of the CBD of Adelaide. On my very peripheral preliminary investigations, they are not really that far from where F School is located.
X is accustomed to bus travel. Ms Dunstan’s view is bus time is about the same. Mr Carleton has pointed to the fact that there is more walking for X, but significantly, the issue from Mr Carleton’s perspective is that G School is close to where X has got really strong sporting connections, and it is a short walk from the school to Suburb H.
Both parties assert that the child has expressed a preference for each school to the parent who advocates it, “I like [F School]” to the mother and the opposite to the father. In these circumstances, it was arranged that he would come in right after school to see me and Ms J.
So, he would, basically, come in cold. He would not have a chance to worry about it or stew or anything like that, and I met X. Thank you for letting me see him. He is delightful, and he is quite shy. He was incredibly nervous.
From my perspective, it was quite brave of him to come in, but I guess at the same time, he did not have much choice. Anyway, I had a bit of a chat with him. He is a sporting child. He barracks for a sports team, because his dad does. He also follows a sports team.
I asked him if he was familiar with people being in a muddle or an upset. We got through that. I think he understood the concept, and I said, “The muddle about where you go to school; did you know about that mix-up?”, and he said, “Yes”.
I asked him how he felt about that mix-up; he said he “did not like it”. He did not like it. I thought about that for a bit, and then I explained to him that you, each of you, had asked me to sort it out: to make a decision.
He was pleased about that, I thought, and I promised he did not have to make the decision. That was my job, and I got paid for it. I would make it. That is why I am keeping my promise to him, not to you, that I will make the decision.
I am not going to make the decision to please either of you, and I concede I do not have extensive knowledge of either of you apart from what you have said in your affidavits, and each of you has a valid reason to select the school that you have, but you each agree that I should make the decision. X also agrees with that, and he is expecting me to make a decision because he also does not like going to two schools at the same time.
One of the things I am required to take into account is his views, but I am not going to put the thumbscrews on him and tell him, “You have to tell me which way it is”, and I did not. But it was my impression, which I concede was a fairly cursory one, that he us under quite a level of stress, being fairly acute at the moment. He told me he had not slept well the night before, that he was getting a cold or something. Whether that is so or not, I do not know.
He said to me he did not wake up in the middle of the night worrying about stuff, but, clearly, he is well aware of the momentum of this issue for each of you, and he is very, very concerned about making a decision that will upset one or other of you.
So that was my pact with him, that I would make the decision, and I also said that I would underline to each of you that you are not to ask him questions about what he said. After that, we attempted to do some analysis of the pros and cons from his point of view about the two schools. They were essentially:
·Friends: about the same
·Teachers: about the same
·Bus: about the same
·Ovals: more at F School.
·Bus: he thought the length of the trip was a bit better at F School
He was being studiously even-handed, I think. Overall, it was my impression that there were more factors in favour of F School than G School. However, X did not specifically say that. He was being even-handed and evaluative.
From my perspective, in a legal sense, the big issue is the nature of your relationship, which is not good, and school fees. I suspect, regardless of undertakings, to pay them, that will be a potential problem. I am not going to enter into the merits of religious education as opposed to secular.
I am, by the Australian Constitution, strictly forbidden to do so, because we live in a secular society. X is clearly a sporty kid, and he did not seem to think that he would lose his sporting friends by going to F School, because that was something that was canvassed by Ms J.
On balance, having considered the affidavits and each of your submissions and having met X, I have concluded that F School is the best option for him. A decision having to be made expeditiously, it being patently absurd that he goes to two schools at the same time.
I want to emphasise that again that I told X that it was my decision to make not his. In this context, I direct that neither of you question him about his meeting with me.
For all these reasons the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Brown. Associate:
Dated: 6 March 2024
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