Ealing and Ealing

[2007] FamCA 625

FAMILY COURT OF AUSTRALIA

EALING & EALING [2007] FamCA 625

FAMILY LAW - CHILDREN - Best interests - Application to change children's school for one term dismissed

APPLICANT: MRS EALING

RESPONDENT: MR EALING

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: BRF 172 of 2005

DATE DELIVERED: 4 June 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 4 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A.I. Strum

COUNSEL FOR THE RESPONDENT: Mr J. Melilli

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Orders

1. The wife's Form 2 application filed 7 May 2007 shall be and is hereby dismissed.

2. The wife shall pay the husband's costs of this application, such sum to be agreed between solicitors within 14 days, and failing agreement, to be taxed.

3. The costs order shall be stayed until the end of the pending property proceedings.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  BRF 172 of 2005

MRS EALING

Applicant

And

MR EALING

Respondent

REASONS FOR JUDGMENT

1. There is a single issue for me as to whether the mother can enrol the parties' four children at the A School at D for Term 3 this year.  B is aged 13; she is in year 8 at T School.  C is 11; she is in year 5.  N is nine.  He is in year 3 at T’s brother school, S, and H is 8 and in year 2 at S.

2. The first issue is as to whether the principles in Rice v Asplund apply.  That is, as the mother brought a similar application this time last year, an application that was dismissed by the court, whether she needs as a preliminary matter to prove new facts and circumstances.  In my view, Rice v Asplund does not apply.  This is a discrete application in the sense that it is brought at a different time, in different circumstances.  It is a new case, a different case, although the fact of and the outcome of the previous application may be relevant as part of the broad-ranging considerations for me as to the children's best interests.

3. The mother says that it is in the children's best interests for them to enjoy this opportunity.  They are keen skiers, a sport and interest that has come to them from both their parents.  It is something that the children enjoyed with their parents when they were together, and have had the benefit of enjoying since then.  B is clearly a very keen skier.  She is a member of the race club at X.  She has had the privilege of skiing overseas as well as in Australia.  Year 8 is the last opportunity according to her mother for her to participate in the program of schooling and skiing for the whole of Term 3.  The mother says that the school approves of this proposal and she has tendered a letter from the principal to that effect.

4. Although the mother had sought to decrease the father's time with the children during Term 3, if they are in X, she changed her approach at the start of the case.  She agreed that the alternate weekend time that the children spend with their father should continue to be from Thursday to Monday as it is now, and by the end of the case, she said that in fact he could also spend an extra week of the school holidays with the children at the end of Term 3. 

5. The father agrees that the children love skiing.  There does not appear to be any disagreement about that.  He says that although last year he did not support the proposal, Mr P’s report did not support it, and the court did not support it, the children have coped in the meantime, and have maintained their excellent relationship with him.

6. The father is correct that the mother's affidavit does not go so far as to claim that B skis at such an elite level that the winter term skiing is imperative for her.  It is also correct that the mother's affidavit says very little about the other children and the need for them to spend the snow season at X.

7. The father points to the fact that the children’s school principal last year was opposed to the proposal, although the mother had at first sworn to the contrary.  This year he has not had the opportunity to check the principal's views, the letter in support only being produced by the mother today.  In any event, the principal's letter, though supportive, is in my view extremely limited in nature.  It says simply:

   “Further to our conversation, I write to confirm [T school’s] support for [the children] to be educated at the [A] School for term 3, 2007.  I see this as an excellent learning opportunity to share time together as a family.   This is the last time the children will be able to spend time together, as [B] will be in year 9 in 2008.” 

8. I am satisfied that it is likely to be a good and enjoyable experience for the children to spend part of the ski season at [X].  It is sad that the parents cannot agree about it, but as the court has been asked to intervene and as the children's best interests must be my paramount concern, it is not the parents' desires that I must take into account.

9. I do not propose acceding to the mother's request.  First, the evidence does not satisfy me that it is imperative for [B’s] well-being or development as an avid, enthusiastic, young race club member and one who is fortunate enough to have bountiful skiing opportunities otherwise presented to her.  Secondly, these children have been at three schools in three years.  They have attended the current school for only five months.  Stability would dictate that this year, their new routines and associations with new teachers and new peers should not be interrupted.  Finally, although money is apparently no barrier, I see it as contrary to the children's best interests for the settled routine of spending Thursday to Monday with their father with various shared activities in Melbourne to be interrupted.

10. The father lives in Queensland.  He flies to Melbourne especially and has a place in Melbourne especially to share that time with the children.  It is likely to be an impediment to that if he has to take additional flights to the snow-fields each second week, with the vagaries of the weather at this time of year and with the children most likely engaged in skiing programs while he is there. 

11. It is for those reasons, in combination, that I determine it is not in the children's best interests to be enrolled in that program and I dismiss the wife's application.

DISCUSSION

1. I am going to make an order for costs. Costs are a discretionary matter for me under s 117 of the Family Law Act.  There is a range of matters that I need to take into account in exercising my discretion in favour of one party receiving costs from another party.  The fact that the wife has been wholly unsuccessful in this case is one factor that I must consider.  The parties’ conduct is another, and I think it is relevant that there were similar proceedings last year. 

2. Mr Strum for the wife is correct in saying that the parties' respective financial positions are also relevant.  It might well be that the husband is in the stronger position in this case, but I am satisfied too that the wife has funds at her disposal, either by way of income or capital from what has been read out to me, so that an order can be paid.  In these circumstances, I am strongly of the view that an order should be made and not simply reserved and potentially “lost in the wash”.

DISCUSSION

1. The orders I shall make are as follows:

   1.The wife's Form 2 application filed 7 May 2007 shall be and is hereby dismissed.

   2.The wife shall pay the husband's costs of this application, such sum to be agreed between solicitors within 14 days, and failing agreement, to be taxed.

   3.The costs order shall be stayed until the end of the pending property proceedings.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  4 June 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as EALING & EALING