Ericsson and Jarrold (No.5)
[2018] FCCA 81
•19 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ERICSSON & JARROLD (No.5) | [2018] FCCA 81 |
| Catchwords: FAMILY LAW – Parenting – where an (religion omitted) teenager should go to school – where previous orders contain a contradiction in that regard. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2)(b), 60CC(2A) |
| Cases cited: Mazorski v Albright (2008) 37 FLR 518 |
| Applicant: | MR ERICSSON |
| Respondent: | MS JARROLD (FORMERLY BEESLEY) |
| File Number: | DGC 1317 of 2013 |
| Judgment of: | Judge Small |
| Hearing dates: | 11 & 12 September 2017 |
| Date of Last Submission: | 12 September 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 19 January 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Jenkins |
| Solicitors for the Applicant: | Rockman Lawyers |
| Counsel for the Respondent: | Mr Ericsson in person |
| Solicitors for the Respondent: Counsel for the Independent Children’s Lawyer Solicitors for the Independent Children’s Lawyer | None Mr Eidelsen CE Family Lawyers |
ORDERS
Paragraph 12 of the Final Orders made 18 December 2014 shall be varied to read:
“12. THAT the costs of the children’s school fees, books, uniforms, excursions, camps and the like and any extra-curricular activities for the children shall be shared equally between the parties.”.
Paragraph 4 of the Final Orders made 18 December 2014 shall be varied to read:
“4. THAT the children spend time and communicate with the husband during the school term as follows:
a) Each alternate weekend from after school or like time on Friday to 7:00 p.m. on Sunday save that if Sunday is one of the (nationality omitted) holidays specified in paragraph 5 hereof, the children shall be returned to their mother’s care no later than two hours after the conclusion of (church omitted) prayers;
b) As otherwise agreed in writing between the parties.”
Paragraph 7(c) of the Final Orders made 18 December 2014 shall be varied to read:
“c) In the event that the (nationality omitted) festival ends at a time when (omitted) commences then the time to be spent with the party shall be extended to two hours after the conclusion of (church omitted) prayers at the conclusion of (omitted).”
For the sake of clarity, the children X born (omitted) 2003, Y born (omitted) 2006 and Z born (omitted) 2008 shall attend such secondary school or schools as the mother, in her capacity as the parent with sole responsibility for the children’s education, nominates for the duration of their secondary education.
Otherwise the Orders of 18 December 2014 as amended on 24 August 2016 and 12 September 2017 remain in full force and effect.
The Application of the father filed 18 July 2016 and the Response of the mother filed 13 February 2017 are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Ericsson & Jarrold (No.5) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 1317 of 2013
| MR ERICSSON |
Applicant
And
| MS JARROLD (FORMERLY BEESLEY) |
Respondent
REASONS FOR JUDGMENT
Introduction
This is both a very simple and a significantly complex case.
It is simple in that the only issue before the Court in these proceedings is which school a now 14 year old child attends for his secondary schooling.
It is complex because underlying the case are issues of deeply felt religious and cultural identity which the Court cannot ignore.
The proceedings are between Mr Ericsson (“Mr Ericsson” or “the father”) and Ms Jarrold (“Ms Jarrold” or “the mother”).
They relate to parenting orders concerning the parties’ children X born (omitted) 2003 (“X”); Y born (omitted) 2006 (“Y”) and Z born (omitted) 2008 (“Z”) (collectively “the children”).
In the current proceedings, the sole issue before the Court is whether X should continue to attend a State secondary school or whether he should return to (omitted) School (“(omitted) School”), a private, (religion omitted) day school.
All the children attended (omitted) School until mid-2016, when the mother removed Y and Z and enrolled them at (omitted) Primary School. X attended (omitted) School until the end of 2016 when he completed Year 6. He has attended (omitted) High School since the beginning of 2017.
Mr Ericsson concedes that Y and Z should remain at (omitted) Primary School, at least for their primary school education, but argues that X should immediately be returned to (omitted) School.
Ms Jarrold wishes X to remain at (omitted) High School and says she has not decided with any certainty where Y and Z should spend their secondary school years. She intends for both to remain at (omitted) Primary School for the duration of their primary school education.
Background
The father was born on (omitted) 1963 and is 54 years old. He is a (occupation omitted) but has been unemployed for several years due to health reasons.
The wife was born on (omitted) 1974 and is 43 years old. She works full-time as a (occupation omitted) at (employer omitted).
The parties were married on (omitted) 1993 after living together since (omitted) of that year, and separated on 8 December 2012. They were divorced on 15 August 2015.
X, Y and Z are the only children of the marriage.
At the time of the trial which resulted in Final Orders being made by Judge Phipps on 18 December 2014 after a four day trial in May of that year, Ms Jarrold and Mr Ericsson lived in close proximity to each other in the (omitted) suburbs of Melbourne.
In mid-2016 the mother, her husband and the children moved to (omitted), some 47 kilometres away from the father’s home. That move has had an effect on the practical operation of those Final Orders.
The father lives in (omitted) with his current wife, Ms O (“Ms O”), and her two children (who spend half their time with their father) in a house owned by Ms O, and the mother lives in (omitted) with her current husband Mr N (“Mr N”), and the children who are the subject of these proceedings in a house purchased by her.
The children currently spend time with the father pursuant to Final Orders made on 18 December 2014 by Judge Phipps (“the Final Orders”), those orders having been varied by Judge O’Sullivan in contravention proceedings brought by the father against the mother in 2016, and again varied by me in 2017 after contravention proceedings brought by the mother.
Both parties are (nationality omitted), the father by birth and the mother by conversion, but their practices are different – the father’s being more strictly (religion omitted) observant ((omitted)), and the mother’s, while still (religion omitted) ((omitted)), being less strictly observant. That difference has been the focus of a considerable amount of the conflict between the parties over the years and has led to almost continuous litigation since 2013.
Procedural History
The paragraphs of the Final Orders which are immediately relevant to these proceedings are Paragraphs 1 and 12 and I will set them out here for convenience.
1.That the wife have sole parental responsibility for the children of the marriage X born (omitted) 2003, Y born (omitted) 2006 and Z born (omitted) 2008 (“the children”), in regard to the children’s education (both current and future) and health save that the mother shall, prior to making the sole ultimate decision about any such issue:
a)Use her best endeavours to advise the father in writing of the decision intended to be made;
b)Seek the father’s written response in relation thereto;
c)Consider, by reference to the best interests of the children, any such response prior to making any such decision;
d)advise the father in writing as soon as reasonably practicable of the ultimate decision.
12.That the children shall continue to attend (omitted) School and the cost of tuition, books, uniforms, excursions, camps and the like and any extra-curricular activities for the children shall be shared equally by the husband and the wife.
It can be seen from a perusal of those paragraphs that tension may arise about their operation in circumstances where the mother and the children have moved from the (omitted) suburbs of Melbourne to the (omitted), and the children have been taken out of (omitted) School. This dispute arises from that tension.
The father issued an Initiating Application on 14 August 2015, essentially seeking to reopen the proceedings on the ground that the mother had moved to (omitted).
On 27 November 2015, Judge Phipps dismissed that Application on the basis of the decision of the Full Court of the Family Court of Australia in Rice v Asplund (1979) FLC 90-725, as the mother was continuing to comply with the Final Orders, and as the move to (omitted) was not affecting that compliance, there was no new circumstance to be considered.
On 21 December 2015 the father filed a Contravention Application alleging multiple contraventions of the Final Orders by the mother.
On 26 February 2016 the father filed second Contravention Application alleging further contraventions of the Final Orders by the mother.
On 29 February 2016 Judge Phipps recused himself from hearing the father’s first Contravention Application and adjourned that Application to a date to be fixed.
Both the father’s Contravention Applications were heard by Judge O’Sullivan on 21 July 2016.
In a judgement delivered on 24 August 2016, Judge O’Sullivan found that the mother had contravened the Final Orders on four occasions, on two of those without reasonable excuse, and ordered make-up time for the children and the father.
He also varied the Final Orders in the following terms:
5. Pursuant to s.70NBA the orders of 18 December 2014 be varied as follows:
a)The school holiday time in order 8 commences (and the school term time in order 4 concludes) on the last day of school in each school term.
b)Unless otherwise agreed or provided for in these orders, changeover where not otherwise at the children’s school be with the father to collect from the mother at the start and return to the mother at the end.
The mother issued her first Contravention Application on 17 June 2016, alleging that Mr Ericsson had breached the Final Orders on two occasions.
The father issued the current proceedings by way of an Initiating Application filed on 18 July 2016. Those proceedings now relate only to the children’s schooling, the remainder of the father’s Application having been dismissed, again on the basis of the principle set out in Rice v Asplund, after an interim hearing held on 17 February 2017. On that day, that reduced Application was listed for trial for two days from 11 September 2017.
The mother filed her second Contravention Application on 2 November 2016. That application alleged twelve contraventions of the Final Orders and four contraventions of the orders made by Judge O’Sullivan on 24 August 2016 (“the August 2016 orders”). Some of those allegations involve both the Final Orders and the August 2016 orders.
On 2 November 2016, the two Applications were consolidated, and after some further “culling” of the specific allegations, those Applications were heard in a one-day trial on 23 February 2017.
Judgment in that matter was delivered on 12 September 2017, when I found the father had contravened the Final Orders and/or the August 2016 orders on five occasions without reasonable excuse. He was ordered to attend a post-separating parenting program and was placed on a bond, with surety of $1000, to be of good behaviour and to comply with Court orders, for a period of two years.
The Family Report of Ms C, psychologist (“Ms C”), was released on 10 August 2017.
The trial of the father’s Application in relation to the children’s schooling took place over two days on 11 and 12 September 2017.
Witnesses were the father, the mother and Ms C, and all underwent cross-examination.
The father had filed Affidavits from several further witnesses, including Ms O, but neither the mother nor the Independent Children’s Lawyer wished to cross-examine them, and their evidence remains unchallenged.
At the commencement of the trial, the father, who was self-represented, announced that he was now conceding that Y and Z should continue to attend (omitted) Primary School for the remainder of their primary school education.
Therefore the only matter before the Court at trial was whether X should continue to attend (omitted) High School, or whether he should return to (omitted) School.
The Evidence
The father’s evidence
The father’s evidence in relation to the sole issue before the court is found in his Affidavits affirmed 14 and filed 18 July 2016, affirmed 21 and filed 22 August 2016, affirmed and filed on 2 November 2016, affirmed and filed 16 February 2017 and affirmed and filed 29 August 2017, in his Outline of Case Document filed on 16 February 2017, and in his oral evidence at trial.[1]
[1] It should not be assumed that I have not considered a piece of evidence if it is not specifically mentioned in these Reasons for Judgment. I have read all affidavit material filed in this matter, and in addition to the impressions I gained of the parties at trial, I have had the benefit of reading the entire transcript of the proceedings.
I note that he attempted to file further Affidavits without the leave of the Court after the deadline set out in the Trial Directions issued on 23 February 2017, and that the Court declined to provide that leave at trial. I have not read that material.
I note that at trial, the father was offered a (omitted) upon which to swear, but he declined saying that he did not know where it had come from. I took that to mean that his religious beliefs would have required him to examine the (omitted) thoroughly so that he could be satisfied of its integrity before he could swear on it. I note that only as an example of Mr Ericsson’s particularly observant religious practice, and because the effect of that practice is an issue in these proceedings, and not to criticise him in any way whatsoever.
In his affidavit affirmed 14 July 2016 and filed 18 July 2016, Mr Ericsson states that he received a letter from Ms Jarrold, which was sent to him by email on 2 July 2016 at 11:27pm, advising him that she intended to remove Y and Z from (omitted) School and enrol them at (omitted) Primary School. He received confirmation of the children’s enrolment at (omitted) Primary School on 13 July 2016. He complains that the mother’s notice was given only one week prior to the third government school term and two weeks prior to the (omitted) School new term and that he had not had the opportunity to discuss these matters with the children’s teachers at either school.
It was his evidence that the mother’s move to (omitted) had made the orders of 18 December 2014 impracticable and that it had raised a conflict between paragraphs 1 and 12 of those orders.
Mr Ericsson states that:
9. The children do well in (omitted) School. School caters to their emotional, social academic and spiritual needs, and therefor there is no reasonable base to remove them to another school.[2]
[2] Mr Ericsson speaks and writes English as a second (or even third) language and I have set out his evidence as it appears in his affidavit material without correction as to spelling, syntax or grammar. That should not be seen as a criticism of Mr Ericsson’s language skills.
Mr Ericsson deposes that the children had only ever attended (omitted) School until mid-2016 and that in circumstances where their parents have divorced and both have remarried, (omitted) School has provided “the only unchanged familiar environment for the children since their kindergarten age.”
It is his evidence that the children were happy at (omitted) School and he annexes a letter from the (omitted) School principal confirming that “It is clear that the children are happy and doing well socially and culturally, they are well integrated”.
Mr Ericsson states that as government schools are not aligned to (nationality omitted) holidays and festivals, the children would inevitably have to miss some school days at (omitted) Primary School, while (omitted) School structures the school timetable to account for those holidays and festivals.
In addition, Mr Ericsson deposes that if the children attend government schools, they would need “special consideration” when sitting for exams which are scheduled on (nationality omitted) holidays.
Further, he rejects Ms Jarrold’s assertion, set out in her letter of 2 July 2016, that it is appropriate that the children “will continue to uphold (religion omitted) education through online learning”, stating that there is no comparison between online learning and the immersion in the (religion omitted) faith the children would receive at (omitted) School. He says “It is important to highlight that the X’s online learning offers only technical reading skills. It is not provided to replace the important collaborative educational aspects provided by school”.
Mr Ericsson expresses concern that there is no (church omitted) or (nationality omitted) community close to the children’s new home, and that therefore the school would provide a major venue for them to “spend (omitted) and festivals experiences with their peers”.
In response to Ms Jarrold’s claim that most children at (omitted) School come from “families of privilege”, Mr Ericsson asserts that “currently, over 54% of the school families receive some level of financial aid, more than half school members”. I note that the question of how (omitted) School’s fees would be paid became a matter of considerable importance over the course of the proceedings, with Mr Ericsson asserting multiple times that he had made an arrangement with the school in that regard, although he was not able to provide proof of any firm arrangement.
Mr Ericsson then says:
27. I am concerned about X taking public transport. X’s daily journey will take approximately 2 hours in no traffic scenario one way. Double this daily journey can compromise X’s sleep and his learning.
I note that by the time of trial, the proceedings only related to whether X would return to (omitted) School, Mr Ericsson having conceded that Y and Z would remain at (omitted) Primary School for their primary education.
In his affidavit affirmed 21 August and filed 22 August 2016 deposes as follows in relation to this issue:
15. Per the following; I am concerned with Ms Jarrold’s lack of regard to the children’s challenges precipitated by the sudden move to (omitted) Primary School.
a.The children relation with their (omitted) School peers that commenced in (omitted) School early learning centre since the children were three years old were abruptly terminated.
b.The move of the children from (omitted) School was sudden and no preparation of the children to the move.
c.Severing the children from their natural environment, removing the children from their familiar setting of school.
d.Discontinuing the cultural and religious foundation of the children and simply Transferring the children to an environment that does not have the capacity to culturally or religiously support the needs of the children.
e.Ignoring previous purported statement to Court and family consultant – that are;
f.Ms Jarrold is committed to preserve the children Ethnicity and natural upbringing environment.
g.Ms Jarrold is living in close distance to the father in a neighbourhood that culturally and socially supports the children needs.
h.Ms Jarrold’s purported statement of agreement to the continuous education of the children in a (nationality omitted) school.
i.The children last term reports are testimony to their fit and performance at (omitted) School.
Mr Ericsson further deposes that X has expressed to him his concerns about “the practical aspect of commuting from (omitted) to school and back every school day”.
In his affidavit affirmed and filed on 2 November 2016, the father again complains about the lack of notice given to him in relation to the mother’s move to (omitted), and provides further indirect information, in the form of annexures, about (omitted) School’s policy regarding school fees and X’s equipment requirements at the school.
He complains further that while the mother gave positive evidence about (omitted) School in the original proceedings in 2015, her affidavits in these proceedings have failed to mention “positive aspects that (omitted) School provide the children. No reference was made to the children’s friends’, Teachers’ reports on Y and Z’s conduct, excellent reports and support they always got from (omitted) School”.
In his affidavit affirmed 16 and filed 17 February 2017, Mr Ericsson describes (omitted) School thus:
19. (omitted) School provides a modern (omitted) education, including reading and writing and learning and speaking (language omitted), which is necessary to study (religion omitted) texts, prayers, festivals and philosophy. The school provides:
- Bible studies
- Celebrations and study of (nationality omitted) festivals and important cultural days
- Morning prayers for 30 minutes each day, learning all the customs, meditations and their meanings
- Community engagement, participation in volunteer programs and (nationality omitted) youth leadership programs
- (omitted) food
- Early school finishes for (nationality omitted) holidays in the weekly (omitted)
He then sets out the history of the previous proceedings referring to the judgment of Judge Phipps, and describes the dilemma the parties now find themselves in as a result of the conflict between paragraphs 1 and 12 of the Final Orders raised by the mother’s decision to move a significant distance from both his home and (omitted) School.
Mr Ericsson annexes to that affidavit a letter from Mr G (“Mr G”), the (omitted) Priest of the (church omitted) attended by Mr Ericsson and a teacher at (omitted) School for more than 20 years. The information provided in that letter sets out many of the academic, religious and cultural advantages for (nationality omitted) children attending (omitted) School, and I found that information quite useful.
Mr Ericsson also annexes a letter from Mr M, who Mr Ericsson describes as “my (omitted)”. That letter too is informative, although the detail of the information in it is not as great as that provided by Mr G.
Unfortunately, Mr G did not swear or affirm an affidavit in these proceedings, which means that his information does not hold the weight that it might otherwise hold. Mr M affirmed a later Affidavit and I will come to that evidence in due course.
Mr Ericsson filed his trial affidavit affirmed 29 August 2017 on that day.
In that affidavit Mr Ericsson again refers to the circumstances which led to Judge Phipps making the Final Orders, saying that those orders “valued and protected the need of the children to continue their education in a (nationality omitted) school. This was done with the consent of the parties and supported by the ICL”.
He then refers to Judge Phipps’ Reasons for Judgment in the 2015 proceedings, pointing out that His Honour had rejected his application to reopen the previous proceedings on the ground that although the mother had moved to (omitted), the children were still attending (omitted) School and were progressing well.
Mr Ericsson notes that it was eight months after that judgment that the mother removed the younger children from (omitted) School and enrolled them at (omitted) Primary School.
He then spends considerable time responding to the family report of Ms C in the current proceedings, stating that Ms C had not mentioned important information he had given her, and stating that he wished to “provide reasonable grounds for why X’s view of his schooling should not be dismissed”.
Much of that affidavit, like sections of previous affidavits, falls more into the realm of submissions than of depositions of fact, and I will return to Mr Ericsson’s view of the family report in my discussion of Ms C’s evidence.
Annexed to this affidavit are three affidavits affirmed by Mr A (“Mr A”); Ms O; and Mr M. I will discuss that evidence later in these Reasons.
At trial, the father was cross-examined by both counsel for the mother and counsel for the Independent Children’s Lawyer.
Under cross-examination by counsel for the mother, Mr Ericsson said that while he was appreciative of the mother’s attempts to maintain the children’s (nationality omitted) identity, he did not believe that the online learning she had arranged for them was sufficient either to teach them about (nationality omitted) traditions or to make them sufficiently fluent in the (religion omitted) language.
He said:
[..] in a nutshell, giving the child the opportunity to actually gain knowledge and collaborate with other students, give – giving them early information of their identity, give them power to leverage on that, and when they reach the – an age where they can make their decision, at adolescence, like (religion omitted) who wants to practice in a (religion omitted) school, or (religion omitted) wants to learn in a (religion omitted) school, it’s fine – it’s – it’s normal. But in order to make an informed decision, one has to gain some knowledge, and not just knowledge, collaboration – remember that (nationality omitted) are only half a percent of the population.
He also made clear that in his (nationality omitted) tradition it was important to learn (religion omitted) in the context of his faith’s spiritual and ritual practices, rather than simply as a language to be spoken or written. He conceded that X is fluent in (language omitted) but expressed considerable concern for the younger two children.
It was his view that without regular and frequent practice of the language and learning about its place in (religion omitted), X’s knowledge of the language may “regress”. He said:
[…] in the context of the previous education, (religion omitted) is just one component of learning and identity, and so there are other (nationality omitted) that do not speak (language omitted), they speak (omitted), and they speak (omitted) language, they’re fluent with that, but it doesn’t mean they speak (omitted), so for the purpose of learning, overall way of learning, just (omitted) language will give you something, which is good, but doesn’t give you the overall experience.
He did accept however that X has a very strong identity with the (religion omitted) faith and that he wears his (omitted) to his current State high school every day.
He was very concerned that the children might attend school on (omitted) Holidays when the Final Orders provided for them to be in their mother’s care, as Y and Z had attended school on (omitted) Holiday in 2016. He nevertheless accepted that Ms Jarrold had deposed that the children would not in future be going to school on those holidays.
Mr Ericsson’s evidence in relation to fees owed to (omitted) School was somewhat curious.
He acknowledged that he had received an invoice from (omitted) School in a sum “similar” to the $41,100.40 deposed to by the mother, but appeared to be saying that that invoice had been generated by (omitted) School for taxation purposes, and that he did not expect (omitted) School to enforce payment of that sum.
He made further assertions that arrangements could be made with (omitted) School for reduced fees to be paid but was unable to provide any direct evidence of such arrangements.
When it was put to him that paragraph 12 of the final orders provides not only that the children continue to attend (omitted) School but that he would be liable for half of the schools extracurricular costs, he claimed that he was “living on a very, very modest budget and in that budget I am paying quite a lot of things […] for the children (and) my expenses on the children are quite high”.
He was then asked whether he was seeking that the portion of paragraph 12 which dealt with his obligation to pay half the school fees ought to “be discharged or do you simply intend not comply with it?”.
He said:
No, I’m thinking that if I would be in a financial situation that is different to what it is today, I will be sharing the cost with the mother on the basis of the … (sic in transcript) but adhering to the order in full, and assume the order – I believe – assumed (sic) that I have the capacity to pay for that.
When it was pointed out to him that he had been very critical of the mother for not complying with the part of paragraph 12 which requires the children to attend (omitted) School, while at the same time he had not been complying with the rest of that paragraph, Mr Ericsson went into some detail about all the things he had paid for the children, including X's (omitted) and associated costs, and his laptop/tablet which had been required by the school. He said: “if I had more, I would give more. I will never short-change my children for nothing. That’s – that’s my attitude”.
It was his evidence that he receives a Disability Support Pension as a result of a depressive illness in the sum of $400 per week. However he talked about the possibility of there being a time “when I will be in gainful employment” and that “I definitely will have to pay my fair share of child support”.
He stated that his depressive illness was largely the result of the almost continuous court proceedings between him and Ms Jarrold. I note in that regard that he has been in receipt of Centrelink benefits and has not been in employment since the date of separation between him and Ms Jarrold.
What became very clear from Mr Ericsson’s evidence on this issue was that he would continue to pay for items for the children as he saw fit, even quite expensive items, but that he considered himself financially unable to comply with the Final Orders which provide for him to pay half of all the children’s regular school and extracurricular expenses.
When asked about X’s progress at (omitted) High School, Mr Ericsson acknowledged X’s achievements both academically and in relation to his participation in the (omitted) School Competition, but essentially said that X would succeed no matter which school he attended because “I have encouraged X, and I’m sure that his mother too, to continue studying regardless of which school it is”.
He was clear in his disagreement with the mother’s evidence that X had not been fulfilling his full potential at (omitted) School because of his shyness and his struggle to connect with his peers. He said:
He keeps attachment to his friends at – to his relationship that he forms from the age of three in kindergarten. He still maintains those relationship. In the very little time that I have with him I send him away from me, “Go and see your friends.”
He reported X as missing his friends “badly” and said that X had expressed disappointment that he had did not have more time with them.
Later during the father’s cross-examination the following exchange took place:
Counsel: You reported, I believe, in the family report that the children all distressed (sic) at being removed from the (nationality omitted) community in (omitted); is that right?
Mr Ericsson: When?
Counsel: Well, I understand that that’s what you reported in the family report. I will just check the paragraph. At paragraph 27, the report writers says (sic in transcript) that you believe the children are distressed about being removed from the (nationality omitted) community. Is that a correct statement?
Mr Ericsson: No, it isn’t. That’s not what I said to the family reporter. There’s a lot of things that I said to the family reporter that are not in the family report at all or have got out of context, so. No, that’s not correct.
Counsel: So the – – –?
Mr Ericsson: I deny it. No.
Counsel: So the children were not distressed?
Mr Ericsson: I’m putting it – I’m answering you very simply that I have not said to the family consultant something…
Her Honour: So you didn’t say to the family consultant that all the children were really distressed being removed from the (omitted) area?
Mr Ericsson: No. I said ---
Her Honour: No. Okay?
Mr Ericsson: I said that earlier in their move, they were distressed, and they have adjusted, as children do. They adjust better than adults usually, but it doesn’t mean that they’re happy.
Counsel: Well, they’ve taken some time to make new friends. That’s natural, isn’t it?
Mr Ericsson: Absolutely. Well, they should make friends. They should make friends.
Counsel: And they have. Z and Y and X all have friends in the area?
Mr Ericsson: Well, I don’t live with them. I know they have school friends. How much social friends they have out of - out of the – the school hours, I don’t know about that. I assume that over time they will be forming some friendship, but that does not mean that they do not miss their friends. The fact that they miss their friend when they come and see me – they ask for their friends.
Counsel: And ---?
Mr Ericsson: So… the attachment that started very early in their life is still there.
In response to questions about the mother’s belief that the children felt different at (omitted) School because of their economic circumstances, Mr Ericsson said that (omitted) School has “programs of fee relief of – of – of – of grants”. Otherwise, it was his evidence that the children at (omitted) School “come from all walks of life and some are richer, some are poorer”, and that there was no difference in the way children were treated because of their economic circumstances.
Mr Ericsson was then taken to his affidavit affirmed and filed on 16 July 2016 where he had expressed a concern for X taking public transport from his home in (omitted) to (omitted) School as it would take approximately 2 hours each way. In that affidavit he had said that that journey “can compromise X’s sleep and his learning”.
His response was first that he had estimated that time in the context of there being “major works” done “in public transport and railway” at that time, and then that X was now 12 months older than when he had written that affidavit and that he would now be able to cope with the travel.
Counsel for the mother then took Mr Ericsson in some detail through the evidence relating to the travel times from X’s home in (omitted) to (omitted) School and to (omitted) High School.
Mr Ericsson conceded that if X remained at (omitted) High School he would catch a bus to (omitted), then a train from (omitted) to (omitted), and then he would walk from (omitted) Station to school.
If X were to return to (omitted) School, he would catch the bus to (omitted), then take a train from (omitted) to (omitted), change trains for the journey to (omitted) station, and then walk to (omitted) School.
Mr Ericsson insisted that the difference between the two journeys, based on his investigation of Google Maps, was only about six minutes. He conceded that his calculation in relation to (omitted) School relied on X catching an express train but was very insistent that his data were correct and that there was little difference in travel time between the two schools.
It was his evidence that when X was living in (omitted) and attending (omitted) School in 2016, he had taken the 6:40am train from (omitted) and arrived at (omitted) School at 8:14am, a journey of one hour and 34 minutes not taking into account the travel from X’s home to (omitted) station.
Mr Ericsson denied, when it was put to him, that one of the major reasons he wished all the children to attend (omitted) School was that it was close to his home and he would not have to drive to (omitted) to collect them so that they could spend time with him. However, that evidence was mostly in relation to the younger two children, as X takes public transport from his school to his father’s home in order to spend time with him.
Mr Ericsson’s cross-examination was conducted over the two days of the hearing, and on the second day, counsel for the mother showed him a printout from the website of Public Transport Victoria showing train timetables on that day.
Mr Ericsson challenged the integrity of that document and appeared affronted that he had not seen it before. I explained to him that counsel would tender the document after she had asked questions about it. Mr Ericsson appeared flustered and began to examine documents of his own until Counsel said to him “Mr Ericsson, if you will forget your documents and just listen to what I’m putting to you it will go a lot quicker”.
It was Mr Ericsson’s evidence that morning prayers, or (omitted), begins at (omitted) School at 8:30am after home room at 8:15am. He agreed that it was important to him that X attends (omitted).
Counsel put to him that if X were to attend the school assembly at 8:15am, and the walk from (omitted) Station to (omitted) School takes about seven minutes, X would be cutting it extremely fine if he caught the 6:43am train from (omitted), as the connecting train from (omitted) would arrive at (omitted) at 7:59am.
He did not concede that that was the case, saying that the timetable as he had proposed it would have X arriving “even early, actually”.
Counsel then referred him to an earlier train leaving at 6:19am from (omitted) with the connecting train arriving at (omitted) at 7:37am, and put to him that that was the only train that would allow X to arrive at school by 8:15am “with more than a five minute buffer”.
Mr Ericsson’s response to that was “okay”, but then he said: “No, no, because he shouldn’t be back at school at 7.37. There is no point it being at school an hour or 53 minutes before the time of school”.
Counsel then provided him with a document taken from the (omitted) School handbook which showed that for secondary school students (omitted) begins at 7:30am.
It was Mr Ericsson’s evidence that the 7:30am (omitted) was “an option for students to commence at that time”. He said that while there was (omitted) at 7:30am, secondary students had the option to attend the 8:30am session.
A similar rather torturous process was then undertaken in relation to the time it would take X to travel from (omitted) School back to his home in (omitted). I do not intend to go into that evidence in any great detail, save to say that it shows that if (omitted) School finishes at 4:15pm, the earliest train X could take from (omitted) is at 4:35pm, and that with connections at (omitted), he would arrive at (omitted) at 5:51pm. He would then have either to catch a bus or be driven home.
Mr Ericsson was then asked about his view that X could use his time on the train to do his homework, and he confirmed that he believed X could make good use of that time, and that he had done so in the six months and he was travelling between (omitted) and (omitted) School.
Counsel then put to him that “he can’t, clearly, practice his music on the train, can he?”, to which Mr Ericsson replied “sometimes he does, quietly”. Given that the instrument X plays is a (omitted) and that he also has an (omitted), it is unlikely that a shy child like X would be playing those instruments on a train.
In relation to whether X would be tired after a full day of travel, school and then more travel, Mr Ericsson said that he had completed that journey successfully in the six months when he was at (omitted) School in 2016. He then said:
I say that X have experienced his journey and his school marks and what he has told the consultant in the family report is that he made this informed decision on the basis of his experience. He has done the journey. He’s happy to do that journey. That’s what he told the family consultant.
When the question about X being tired if he were to attend (omitted) School was repeated, Mr Ericsson became quite agitated and simply did not answer the question, taking the opportunity to again blame Ms Jarrold for having moved to her current home in the first place.
Mr Ericsson’s evidence on this particular issue was presented in a somewhat defensive manner, and with little concession that in fact X would have to travel less time to attend (omitted) High School than if he returned to (omitted) School. He was extremely reluctant to agree to any proposition put to him that wasn’t in a document that he himself had prepared or previously perused, and appeared to respond with rigid and uncompromising thinking.
He did, however, concede that X was able to take public transport from (omitted) Station to his home in (omitted) in time for (omitted) on Friday nights.
Towards the conclusion of his cross-examination by counsel for the mother, counsel referred Mr Ericsson to the family report where Ms C expresses a view that the children had been prepared for the interview with her. He did not actually deny that he had spoken to the children about the interview with Ms C, but said that Ms C’ report does not name him in relation to that issue and that she had not put to him that he had prepared the children for their meeting with her.
I must say that I found that answer curious.
Mr Ericsson then underwent cross-examination by counsel for the Independent Children’s Lawyer.
Counsel first asked Mr Ericsson about whether he had complied with paragraph 5(b) of Judge O’Sullivan’s Orders of 24 August 2016, which varied the Final Orders in the following terms:
Unless otherwise agreed or provided for in these orders, changeover where not otherwise at the children’s school be with the father to collect from the mother at the start and return to the mother at the end.
Despite conceding that he refuses to take the children back to their mother’s home after their Thursday evening time with him, so that Ms Jarrold is forced to drive to his home to collect them, Mr Ericsson insisted that he has complied with that order, which he interprets in a way that does not require him to travel both before and after that time.
His response can only be described as argumentative, evasive and even misleading, although I am sure he did not see it like that.
Mr Ericsson insisted that while the current proceedings related to matters of education, for which Ms Jarrold has sole responsibility under the final orders, they also related to matters of religion, for which the parties have joint responsibility.
It seemed that every time counsel asked Mr Ericsson a question, Mr Ericsson responded obliquely and in a way that diverted attention from the question. It appeared that he simply could not give a plain answer to a plain question, which led to several quite heated exchanges between him and counsel, none of which provided any clarity to the court.
Just one example of that is seen in the following exchange between counsel, Mr Ericsson and the bench:
Counsel: Are you suggesting that you should have equal shared parental responsibility in relation to the children’s education?
Mr Ericsson: We do have.
Counsel: You do not?
Mr Ericsson: Yes. We do. We do.
Her Honour: In relation to the education?
Mr Ericsson: Well---
Her Honour: No. You don’t?
Mr Ericsson: The---
Her Honour: Judge Phipps made an order that Ms Jarrold has sole parental responsibility in the area of education.
Mr Ericsson: I understand that.
Counsel: Now and in the future.
Mr Ericsson: It’s in the mother’s order in 2014 that the children are continuing at (omitted) School, and it’s made by consent.
Her Honour: I understand that’s your – I understand. We not talking about that at the moment, but you understand that she has sole parental responsibility in relation to education?
Mr Ericsson: Yes. I do.
Her Honour: Yes. Okay?
Mr Ericsson: I do. I do.
Counsel: So why did you say a moment ago that, in fact, it is currently shared?
Mr Ericsson: Because it’s not just an education matter. It’s a religious matter.
Counsel: You see Sir, the impression I’m getting right now is that you comply with orders when it suits you, and, when it doesn’t suit you, you make up some explanation as to why you don’t need to. That’s the impression I’m getting?
Mr Ericsson: All right.
Counsel: What do you say to that?
Mr Ericsson: I say that I will reserve my question – my answers to you and I will be replying to that later.
Counsel: You’re saying that you’re not going to answer that question?
Mr Ericsson: Yes. I don’t – I will not answer---
Counsel: I see?
Mr Ericsson: …that question.
Counsel: I see. Thank you. Now, it couldn’t be clearer, could it, that the school is owed money. (omitted) School is owed money; that’s clear isn’t it?
Mr Ericsson: Is owed money?
Counsel: They’re owed money?
Mr Ericsson: Not that – I don’t owe them money.
Counsel: You’ve received a bill for 41,000 thereabouts, and she has received the same bill, 41,000 or thereabouts. They’re owed money aren’t they?
Mr Ericsson: I don’t owe money to the school. She has got a separate account – her account.
Counsel: See, yesterday you said you had received the same account – $41,000 or thereabouts?
Mr Ericsson: I said that there is an email confirmation. I will give it to you now.
Counsel: Just answer the question. It’s clear they are owed money?
Mr Ericsson: No. No. I disagree with you. I will explain exactly why.
Counsel: No. Thank you. You’ve disagreed. That’s your answer. Let me move on?
Mr Ericsson: I disagree with that.
Her Honour: So you deny that you owe money to (omitted) School?
Mr Ericsson: I don’t owe money for (omitted) School…
Her Honour: Yes. That’s what you say?
Mr Ericsson:….and I’ve got a statement from (omitted) School that shows that.
Despite Mr Ericsson’s agitation and apparent inability to answer questions as asked, what was clear from his evidence overall is that he interprets paragraph 1 of the Final Orders as being subject to paragraph 12. That is, that the order providing for the children to attend (omitted) School takes precedence over the order bestowing sole parental responsibility on Ms Jarrold in matters of education both current and future.
Counsel went on to ask questions about Mr Ericsson’s alleged arrangement with (omitted) School for fee relief.
What became clear was that the college’s offer to waive fees was dependent on the mother’s support for X remaining at (omitted) School for the duration of his secondary education. Clearly the evidence shows that Ms Jarrold no longer provides that support, and while Mr Ericsson accepted that, he continued to insist that he had an arrangement with (omitted) School to waive X’s fees.
Counsel asked Mr Ericsson about his depressive illness which forms the basis of his eligibility for a Disability Support Pension, and his evidence that that illness had been caused by the court proceedings. Mr Ericsson was forced to concede that it was he who had commenced the original proceedings, and I note that he is the Applicant in the current proceedings.
Mr Ericsson could not predict, when asked, what the impact on him would be if the decision of the Court were to be that X did not immediately return to (omitted) School.
When it was suggested to him that his feelings about X returning to (omitted) School were very important to him the he said “it’s not about my feelings.” And later, when counsel suggested that it would be “a worry” for him that X would not get the same support for his (nationality omitted) identity in a state school as he would (omitted) School, Mr Ericsson replied: “it’s not about me. It’s about his choice”. Given the intensity with which he answered questions in general, and particularly those questions he found difficult, I found that to be a rather disingenuous statement, or at least one that displayed a distinct lack of insight.
In relation to X's (religion omitted) identity, Mr Ericsson agreed that X’s practice of wearing a (omitted) in a State school where he is not surrounded by other (nationality omitted) children indicates a real commitment and strength of character in him as well as a sound (nationality omitted) identity.
However he was not prepared to agree that there was no possibility that X would not continue to see himself as a (nationality omitted) man. Further, it was Mr Ericsson’s evidence that if “a child that is (omitted) and that committed to actually go and congregate every morning and – and (omitted) or pray with others, congregate and pray with others and associate with people which he grew up with since the age of three, is otherwise depriving him of his rights”.
The fact that X will still be spending every second weekend, half school holidays, and (nationality omitted) holidays with him was not enough, in Mr Ericsson’s view, for him to be assured that X would remain an observant (nationality omitted) man. He does not trust Ms Jarrold and her husband to provide a sufficiently observant home environment for X and he believes sincerely that if X does not return to (omitted) School his (nationality omitted) education, and therefore his (nationality omitted) identity, will be compromised.
Throughout his cross-examination by counsel for the Independent Children’s Lawyer, Mr Ericsson professed not to have any judgmental view of people who claim (nationality omitted) identity but do not practice the (omitted) form of (religion omitted) that he follows. He also professed to understand that a person’s view could change with circumstances. However, those statements sounded somewhat hollow in light of other evidence he gave in relation to Ms Jarrold’s religious practice and therefore the practice that X is exposed to in her home.
When I asked Mr Ericsson about his own background, he said that he had been raised in a “mixed” rather than an (religion omitted) household, that he had gone to (nationality omitted) schools in (country omitted), and that the formation of his (nationality omitted) identity had come in large part from his maternal grandparents.
He agreed that he had moved away from (religion omitted) practice but described himself as “I had money in the bank to actually come back”, and agreed with me that that “money in the bank” had been “deposited” by his grandparents and his parents.
However, he was unable to agree that therefore the (nationality omitted) identity that he had developed as child came from his family rather than from his school.
Nor was he able to agree that X, at almost 14, has enough “money in the bank” to ensure his (nationality omitted) identity in the future. In fact he said that he believed “that he really wished to draw on that money now. He wants this cash to be for – for him”. He repeated then that it was X’s wish to return to (omitted) School and, when questioned, he said that he would “absolutely” respect X’s wishes if he wished to remain at (omitted) High School.
In light of all his other evidence, I find it difficult to accept that Mr Ericsson is genuine in that view.
Overall though, I found Mr Ericsson to be a sincere man, wholly and genuinely committed to his faith and its practice according to (religion omitted) principles, but one who finds it very difficult to think beyond that commitment to what his children might actually experience and need in life.
He impresses as a man who cannot contemplate any view but his own and who evades difficult questions which challenge that view. When that view is challenged, and his evidence is questioned, he becomes agitated and argumentative and reverts to issues which are not relevant to those he is being asked about.
There is no doubt in my mind that Mr Ericsson is genuine in his desire for his children to have an (religion omitted) education, and that he genuinely believes that their (nationality omitted) identity is much better supported in the environment provided by (omitted) School than in a state school, despite the fact that they live in an (religion omitted) household in each parent’s home.
The father’s wife’s evidence
Ms O’s evidence is found in her affidavits affirmed 6 July 2016 and annexed to the affidavit of the father affirmed 14 and filed 18 July 2016, and that affirmed on 28 August 2017 and annexed to the father’s affidavit affirmed and filed on 29 August 2017. She was available for cross-examination at trial but neither the mother’s counsel nor counsel for the Independent Children’s Lawyer sought to cross-examine her. Her evidence is therefore unchallenged.
In her first affidavit Ms O the sets out her experience of Mr Ericsson as both partner and father. That evidence paints a glowing picture of an empathic, loving and supportive husband, father and step-father who deals with family conflict, when it arises, in a sophisticated and positive manner. She notes particularly that Mr Ericsson has a positive relationship with her ex-husband, the father of her children, who spend their time equally with each of their parents.
I cannot help but note that that evidence is in glaring contrast to the picture of Mr Ericsson painted by Ms Jarrold throughout several sets of proceedings between them in this court.
Of course, that does not mean that one of the women is being less than truthful. It may merely mean that the combination of the personalities of Mr Ericsson and his first wife provided a very different dynamic than his experience with his second wife.
Ms O’s second affidavit essentially complains about the contents of the family report of Ms C, but in relation to the children’s schooling she says the following:
5. I am a (occupation omitted) in (employer omitted). (omitted) School program is similar to (omitted) in the primary years. It is my humble opinion that both Y and Z haven’t made a visible progress in their (religion omitted) learning. On the contrary. They require revision of basic script letters, basic verbs and simple sentence structure. Sadly, I am unable to take upon myself the commitment of teaching the children. I have a heavy workload and own commitment to my own children. I am simply saddened by the visible decline in their language skills. Moreover there is no progress in all children (nationality omitted) studies knowledge that is, to my understanding, excluded from their online learning.
Ms O makes no specific reference to X in that affidavit.
Further information given by Ms O to the family report writer will be discussed later in these Reasons.
The Mr A evidence
Mr A (“Mr A”) describes himself in his affidavit affirmed on 25 August 2017 and attached to the husband’s affidavit filed 29 August 2017 as “(religion omitted) Priest of (omitted) Church Congregation and President of the (religion omitted) of Australia (omitted)”. I accept Mr A’s evidence as expert evidence in relation to the practice and tenets of the (nationality omitted) faith, and I again note that neither the mother’s counsel nor counsel for the Independent Children’s Lawyer sought to cross-examine him at trial.
Mr A deposes that (religion omitted) requires parents to provide their children with a sound (nationality omitted) education and that such an education cannot be obtained outside a (nationality omitted) day school.
He says that financial constraints do not relieve (religion omitted) parents of the obligation to provide such an education for their children, and while he states that “there are specific (nationality omitted) schools in Melbourne which offer significant fee relief for parents experiencing financial difficulties or other challenges”, he makes no specific reference to arrangements made at (omitted) School in that regard.
Mr A says that the (nationality omitted) tradition involves “the practical observance of (nationality omitted) law and ritual”. He sets out the importance and pervasiveness of (nationality omitted) law in (nationality omitted) family life and says that “(religion omitted) may be rooted in faith but it is manifest and expressed in behaviour”.
He explains that there is “a broad spectrum of streams within (religion omitted), as with other religions, and each stream possesses its own customs, ideologies and unique ways of celebrating (nationality omitted) festivals and life cycle events”. However, Mr A says the “core practice of basic (nationality omitted) law is identical among all streams of (religion omitted).”
He then deposes as follows:
5. It is crucial to note that (nationality omitted) children who attended (nationality omitted) school are benefited not only by the virtue of the sound (nationality omitted) education they receive, but more importantly by the social connections and friendships experienced with others who share the same values. It is the spiritual environment and human context in which (nationality omitted) students spend so much of their day which allows them to enhance their (nationality omitted) identities. This is, in my informed opinion, extremely difficult to achieve in a non-(nationality omitted) school system, especially when this school is at a significant geographic distance from the (nationality omitted) community in which the child’s friends reside. Strengthening of children’s (nationality omitted) identities occurs through the regular, daily interactions with their (nationality omitted) peers. It is difficult to replicate this through generic educational programs if there is little if any interaction with other (nationality omitted) children.
6. Finally, the notion that a (nationality omitted) child may grow up and be educated in a (omitted) environment, and then make an informed decision as to his/her path in life when he/she mature, is highly questionable to say the least. Attending school outside a structured and nurturing (nationality omitted) school environment, particularly when a child spent his/her formative years in that school environment and was suddenly removed from it, is unlikely to equip the child with the ability to make an informed decision as to which path he/she chooses as an adult. Simply put, the odds of a child identifying as a (nationality omitted) adult when growing up outside a (nationality omitted) environment, are stacked heavily against that child. Our society is predominantly (omitted) in nature. Minimal exposure to (nationality omitted) education and friends during the child’s formative years will almost certainly result in that child’s non-engagement with his or her (nationality omitted) culture. Only the consistent and sound education in an inclusive and nurturing (nationality omitted) school can afford children a realistic possibility of making an informed decision that goes to the very heart of his or her identity.
While I accept Mr A’s evidence as set out in paragraph 5 of his affidavit, there is clear evidence before the court that X's (religion omitted) identity is very strong, despite his not attending (omitted) School in 2017. In addition, X is not cut off from either (nationality omitted) practice or other (nationality omitted) children, as (religion omitted) is practised in the mother’s as well as the father’s home, albeit in a less strictly observant form, and he spends every alternate weekend, and half school and (nationality omitted) holidays in his father’s more observant home, attending (church omitted) and celebrating (religion omitted) traditions with his peers as well as his family.
I also simply observe that the evidence of Mr A as set out in paragraph 6 of his affidavit is contradicted by Mr Ericsson’s own life experience. He was raised in an observant household but did not practise his faith in that manner during his adolescence and early adulthood, returning to a strictly observant form of (religion omitted) only after his marriage to Ms Jarrold.
In his affidavit affirmed on 28 August and filed as an annexure to the father’s affidavit on 29 August 2017, Mr M[3] (“Mr M”) describes himself as an “(religion omitted) Priest” who was “the (omitted) Priest of Mr Ericsson and his family whilst they were living in the (omitted) area, from before the children were born. Both father and sons were regular attendants at our (church omitted)”.
[3] While Mr M refers to himself by this name on the front page of the affidavit, he signs his affidavit as "Mr M".
He sets out, very briefly, his history with Mr Ericsson and his family and then makes essentially the same points as are set out in Mr A’s affidavit, albeit in a much briefer form.
I would make the same observations in relation to Mr M’s evidence as I make in relation to the affidavit of Mr A.
The mother’s evidence
The mother’s evidence is found in her Affidavits affirmed and filed on 26 August 2016, her Affidavit /affirmed on 10 February and filed on 13 February 2017, in her Trial Affidavit affirmed and filed on 28 August 2017, and in her oral evidence given at trial.
At the time of filing her first Affidavit, X was still attending (omitted) School, and therefore the Affidavit does not address the issue of which school he should attend.
She does, however, depose to matters involving fees at (omitted) School, stating:
16. […] The fees ordinarily payable for each student at (omitted) School ranges between $15,000 to $30,000 per annum (depending on their year level) and in addition to this there are security and building levies. The financial agreement that I reached with the school for the 2015 year was that I would pay fees of $2,400.00 for the children’s tuition and all of the levies. Due to my strained financial circumstances I was only able to pay the tuition fees for last year but not the levies and I currently owe the school more than $7,000.00 for the balance of last year’s levies ($2,064.40) for this year’s levies ($2,962.50) and this year’s tuition fees.
Ms Jarrold notes that Mr Ericsson had not complied with Judge Phipps’ orders that the children’s school expenses be shared, and that he had not paid costs of $5,889 awarded by Judge Phipps on 27 November 2015.
It is Ms Jarrold’s evidence that in June 2016, because of her “precarious financial position”, she left her part-time position at the (employer omitted) in (omitted) and took a full-time position at the (employer omitted) in (omitted).
It appears to have been that move, in addition to the move to (omitted), which had made it impracticable for her to take the children to and from (omitted) School each day.
In her second Affidavit, Ms Jarrold deposes that she did not move X from (omitted) School in mid-2016 because it was his last year of primary school, his (omitted) would be taking place in the second half of the year, and she “felt that it was important not to move him at a time that he was already burdened with the additional study for his (omitted)”.
It is her evidence that X had “struggled to connect with many of his peers at (omitted) School who largely have different interests to him and enjoy different financial circumstances”.
In addition, Ms Jarrold says that X was finding the daily travel to (omitted) School burdensome.
She says she investigated several high schools for X, but decided on (omitted) High School because it provided a musical program suited to his interests, as did the school’s focus on science and technology. She says further that “(t)he location is an easy direct train journey and is a very supportive environment”.
It is her evidence that when she informed Mr Ericsson of her decision about X’s secondary education, he contacted (omitted) High School and told them that they could not enrol X without his consent. The matter was referred to the Department of Education and ultimately, when the school was shown the Final Orders, which give Ms Jarrold sole parental responsibility in the area of education, X was enrolled.
Ms Jarrold then states:
23.Naturally X was a little apprehensive about starting at a new school particularly as Mr Ericsson has made every effort to stop his enrolment and had continually spoken to X about his opposition to the move from (omitted) School. I had attempted to shield X from this issue and simply advised him that I felt that the move was for his benefit and I encouraged him to give his new school a fair chance. To his credit, X has done this and having spent the first few weeks of the school year at (omitted) High School he is settling in well and the teachers report that he is progressing well, making new friends and enjoying his time at school.
24.X’s day has become considerably shorter as the hours of (omitted) High School are 8.40am to 3.15pm and given that the school is a thirty minute train ride away from our home his travel time to and from school has halved. This is important as it allows him additional time to complete his homework and pursue his musical interests. Currently he is enjoying walking to the train station with his school friends who also travel by train to their respective homes.
In relation to the issue of (nationality omitted) education, Ms Jarrold says that “like many other (nationality omitted) families in Melbourne, I came to the conclusion that (nationality omitted) schools were not suitable for my children’s needs and were also unaffordable to me”. She says that as her husband, Mr N, is a native (nationality omitted), and they practice (religion omitted) in their home including the (religion omitted) dietary requirements and (omitted) rituals and celebrations, the children’s (nationality omitted) education could be “supplemented by various reading and online resources that are readily available”. She notes that “(i)ndeed X studied for his (omitted) (at the request of Mr Ericsson) via an online education program which taught him how to read the portion that was required for his (omitted)”.
Ms Jarrold states:
32.Contrary to the impression given by Mr Ericsson there are many families within the (nationality omitted) community that do not send their children to (nationality omitted) schools for a variety of reasons. Many of these children still gain a knowledge of their religion, tradition and customs which as many leading (nationality omitted) educators advise is largely taught in the home rather than the classroom.
Further, Ms Jarrold notes that X has the benefit of spending alternate weekends, major (nationality omitted) holidays and half school holidays with his father, which will ensure that his experience of (religion omitted) as his father practises it is a regular and frequent part of his life.
She is clear in her denial of the father’s assertion that the only way for X to solidify his (nationality omitted) identity is for him to attend (omitted) School.
She deposes that if (nationality omitted) holidays fall on the children’s school days “the children can miss school for the days to observe the major religious holidays”. However, it is her evidence that there are only 13 major (nationality omitted) holidays each year and not 22 as is claimed by Mr Ericsson. She states that these are “…(omitted) and (omitted) Holiday ((omitted) New Year), (omitted) Holiday (sic) (omitted)”. As Ms Jarrold notes, (omitted) almost always coincides with Easter and the first term school holidays, and in 2017, only 7 of the 13 holidays fell on days when the children would have been at school.
Ms Jarrold concedes that Y and Z attended school on (omitted) in 2016 as she had been forced to work and had no other options, but then states “I intend in future to ensure that the children do not need to attend at school on the major (nationality omitted) holidays”.
In this Affidavit Ms Jarrold repeats her evidence that she cannot afford to send X to (omitted) School. She deposes that while she works full time, she receives only minimal child support from Mr Ericsson and that she therefore bears the much greater burden of the children’s financial support. She also deposes that she owes her lawyers significant amounts of money and that (omitted) School is still pursuing her for debts relating to the children’s previous school fees and levies. Ms Jarrold repeats her previous evidence that Mr Ericsson has failed to pay for half of the children’s school expenses and that he has still not paid the costs order made by Judge Phipps in late 2015.
Ms Jarrold draws attention to the decision of Judge Phipps in the 2013-2014 proceedings, saying:
70. […] His Honour Judge Phipps also ordered that I have sole parental responsibility “in regard to the children’s ongoing education (both current and future)” [4] as it was recognised by the Court that the children’s ongoing attendance at (omitted) School may not continue and for the reasons stated in his Honour’s Judgement responsibility for making decisions in relation to the children’s education was left solely to me.
[4] Emphasis in the Affidavit
To her third and final Affidavit filed in these proceedings, filed midway through Term 3 in 2017, Ms Jarrold states:
9. In his (omitted) High School 2017 School Report X’s teachers in English, Maths and Science describe his Behaviour and Effort as “Excellent”. X is assessed as being above average in a number of areas including Maths which is significant as it represents improved results for him.
[…]
12. Aside from the matters detailed in his School Report it is evident that X is also benefitting greatly from the music program offered at (omitted) High School. He has been selected to play (omitted) as a member of the (omitted) Hobby. […] X’s music teacher has already moved X to the next year level of learning in (omitted) due to his achievements and it is apparent that he is thriving and enjoying these opportunities that compliment (sic) his academic studies.
Ms Jarrold deposes that X's (nationality omitted) identity is strong and that he wears a (omitted) to school each day. She says that the reduced travel times have benefitted him greatly as “(h)e is now able to practice (sic) his music, complete homework and have social relaxation time after school and he is also able to sleep longer in the mornings”.
It is her evidence that she has arranged correspondence lessons for the younger children through the New South Wales Board of (nationality omitted) Education, and that X is enrolled with the (omitted) School for extended (religion omitted) learning.
Ms Jarrold again repeats that her financial position is “extremely precarious”, saying that the debt owed to (omitted) School is now said to be $41,100.40, because the college requires her to pay full fees for Y and Z for 2016 as she withdrew them mid-way through the year. In addition, she is still responsible for her legal fees.
At trial, Ms Jarrold was cross-examined by Mr Ericsson. Counsel for the Independent Children’s Lawyer did not seek to cross-examine her.
Under cross-examination from Mr Ericsson, Ms Jarrold conceded that, with the exception of a few matters, she had been “not unhappy” with the education the children had received at (omitted) School, and that X’s academic progress was satisfactory. However, she disagreed with the suggestion that “(omitted) School is a school that in its philosophy supports the entire community, regardless the difference in the observed practices”.
She conceded further that she had deposed in previous proceedings before Judge Phipps that the children were studying diligently at (omitted) School and that they were obtaining good academic results. However, she stated that the major reason she had opposed Mr Ericsson’s application in those proceedings was that his time with the children had not changed, and that the children’s progress at (omitted) School was included “as part of the overall picture of our lifestyle”. She said at the time she affirmed that affidavit, the effect of the Final Orders had not changed.
When asked whether a (omitted) School education was a matter not only of education but of religion, Ms Jarrold said the following:
I think that’s your view that where you attend – where children attend school is to – is primarily to do with their education. Faith, views, deeply held views are – and the principal of (omitted) School stated come from the home.
It was her evidence that Mr Ericsson had wanted to send the children to an even more religious school but that she had not agreed to that.
When asked whether X’s needs could be adequately supported at (omitted) School in academic terms, Ms Jarrold gave the following response:
Academically, there were areas for improvement. It was noted in all of his reports that he had social difficulties, and that he needed to work on integrating with other children, particularly in group work, partly because he has an auditory processing disorder which has been documented that you did not want him to have therapy for, or the other therapies that he had. And the – so the reports consistently noted that, and I found it was hard for him in such a small homogenous group to overcome those, and partly because it was such a small consortium, and when you break it down to genders, it is even smaller. So a small group of boys that perpetually excluded X because he is – he is a wonderful, gentle child but he is a bit different. And in a larger consortium where he is now, and exposure to a less homogenous group, he appears to be managing very, very well and there are no such comments in his current report. And, of course, I did speak to those teachers back in (omitted) School, and currently in (omitted), and examined those and understood them and tried to support X at home by talking about, you know social skills, how to approach other children, listening skills…
In relation to the suggestion that the online learning she had arranged was “second best” in terms of X's (religion omitted) education Ms Jarrold said:
[..] so what actualises in our home after school is the children undertake a – workbooks of (nationality omitted) learning as well as online (religion omitted) learning as well as, of course, participation in (nationality omitted) life, which is an everyday factor, and I don’t propose that as a substitute for learning in a (nationality omitted) school, but it’s a – a supplement to their general education and I believe it’s of value.
When asked why she had not returned to Court to seek a variation in the Final Orders before she removed the children from (omitted) School, Ms Jarrold said that she had understood, on legal advice, that as she had sole parental responsibility in the area of education, both current and future, she would not be in breach of those orders if she followed the requirements of informing Mr Ericsson about that decision.
In response to a question about whether she agreed that Judge Phipps had made the Final Orders in the children’s best interests, Ms Jarrold replied:
I believe the context of the paragraph 12 was to just ensure in the aftermath of very difficult separation and divorce that there was some stability built-in for the children, but with the mindfulness that future – current and future education decisions lay with myself, and that was the best interests of the children. […] It was on the understanding that it provided the children stability, and also my fear that you would seek to have them put in a different, much more restrictive male only environment.
In relation to the practical elements involved in X attending (omitted) School, Ms Jarrold stated that her legal advice was that (omitted) School “can and are likely to call in” the sums for which she had been invoiced, and that if that happened it would be “likely to bankrupt me”.
I note that Mr Ericsson did not ask Ms Jarrold any questions about the issue of the travel time between X’s home and the two schools proposed.
When asked about Ms C’s evidence of what X had told her about his views, Ms Jarrold said:
I know X to be, at times, very conflicted about differing views. You hold very strong views, and I think X feels under a great deal of pressure to align himself with those, and I have witnessed myself, his own state of panic when something goes a little bit wrong that he feels may somehow interfere in the balance of that in – out of your favour, and I – I have seen his physical symptoms of suffering, and I try very hard to be as – not, you know, not give him pressure - to give him the impression of what my views are as being important, but just to allow him to live as happy and secure life as I could offer him.
When the question was pressed, Ms Jarrold replied that she believed that X’s views, as told Ms C, reflected not his own views, but his “desire to reflect his father’s views”.
She was clear that she did not wish Mr Ericsson to attend the children’s schools because of past experiences which had led to proceedings in the Magistrates’ Court of Victoria in relation to family violence. I stopped Mr Ericsson from asking further questions about the detail of what had happened in court in those proceedings as they were irrelevant to the matter before the Court.
When asked whether she would support X if I made orders for him to return to (omitted) School, Ms Jarrold said that she would comply with any order I made by facilitating him to attend. Given the comments of Ms C in relation to the need for Mr Ericsson to support X if I were to make orders in accordance with his Application, and that Ms C’s evidence was given before that of Ms Jarrold at trial, I found that answer a little lame.
In general, however, I found Ms Jarrold to be a truthful and credible witness. Her responses to questions were thoughtful and considered, although it was clear from some of those responses that the mistrust Mr Ericsson feels for her is entirely mutual.
The Family Consultant’s evidence
Ms C's Family Report was released on 10 August 2017 and she gave evidence at trial, undergoing cross-examination from Mr Ericsson, and, to a lesser extent, counsel for Ms Jarrold and counsel for the Independent Children’s Lawyer.
Ms C notes in her report that hers is the third family report prepared about this family since 2013. She refers to previous reports provided by Ms E on 15 August 2013 and 14 March 2014 in previous proceedings, and sets out the history and current circumstances of the matter in some detail.
Ms C interviewed the mother, her husband, the father and his wife, as well as the children, for the purposes of her report.
Her report of what Ms Jarrold told her about her relationship with Mr Ericsson, her own (nationality omitted) practice and identity, and the progress of the children was consistent with the mother’s Affidavit evidence.
Ms C describes Ms Jarrold as being “of pleasant demeanour” and “cooperative” at interview. Later in the report, Ms C describes her as “deeply thoughtful about the children’s formation”.
She describes Mr Ericsson a “intense at the commencement of the interview” but “by the end of the process he appeared to have relaxed significantly”.
Again, what he is reported to have told Ms C is consistent with his Affidavit material.
However, Ms C makes the following observation in relation to Mr Ericsson:
26. Mr Ericsson strenuously denied being controlling or violent with Ms Jarrold. He said there had been issues in the relationship which were related to a previous experience she had, which was traumatic. His attitude about her experience indicated a lack of empathy for her and concern primarily for himself. Mr Ericsson showed no indication of insight about the information provided in the previous Family Reports and s11F Memorandum.
Ms C interviewed Ms O, and notes that “Ms O described her and Mr Ericsson’s (sic) observance of (religion omitted) as a total cultural and deeply spiritual immersion. She said words to the effect of “we don’t do (religion omitted), we are”. She described it as a deep sense of identity as opposed to religiosity.”
Ms O rejected Ms Jarrold’s view of (omitted) School as having a sense of judgmentalism about financial diversity and told Ms C that (religion omitted) is about diversity and inclusion. She denied that “elitism” was practised at (nationality omitted) schools.
It was Ms C’s opinion that Ms O and Mr Ericsson were “very well matched on values and commitment to traditional (nationality omitted) culture and spirituality”, and that Ms O understood her husband very well. Ms C considered that Ms O’s influence on Mr Ericsson in their relationship would be likely to assist Mr Ericsson in his parenting role.
Mr N is described as “casually dressed and spoke with a strong (omitted) accent”. He told Ms C that his role with the children was more like that of a friend than a parent, and said that “it was his observation that X struggled and was confused when he was changed from (omitted) School to (omitted) High School. He said he observed that seemed to be associated with his father’s religious observance and that X seemed worried that he was not observing in the same way. He also said he had noticed that X seemed to enjoy his musical instruments and that it seems to help him emotionally. He said they have set up the garage with a sofa and as a place for him to play music.”
That is, in the context of this case, if the relationship between X and each of his parents can be said to be important, significant, valuable, healthy, worthwhile and advantageous to him, and each of his parents provides a positive role model for him, then the benefit to X in maintaining and developing that relationship must be a primary consideration of the court in considering what orders might be in his best interests.
Mr Ericsson argues that his relationship with X can only be fully meaningful if X practises the (religion omitted) form of (religion omitted) that he practises. He says, in effect, that unless the example he sets to X when he sees him each fortnight is reinforced on a daily basis by X attending (omitted) School, he fears that X’s commitment to (religion omitted) might be compromised.
I understand and believe that Mr Ericsson is sincere in holding those views, and they are supported by those of Mr G and Mr A. However, in terms of X’s development, and the clear evidence before the court that he identifies strongly as a (religion omitted) man, I do not agree with Mr Ericsson that the meaningfulness of his relationship with X would be compromised if X were to remain at (omitted) High School.
All the evidence before the Court indicates that Ms Jarrold’s relationship with X can be said to be “meaningful” in the terms set out above.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
I note that in previous proceedings findings were made in relation to family violence perpetrated by Mr Ericsson, and that several Family Violence Prevention Orders have been made against him.
I note also that it is Ms Jarrold’s evidence that she continues to be exposed to what she sees as controlling behaviour by Mr Ericsson, including his refusal to return the children to her on Thursday evenings, and indeed the very existence of these proceedings.
It is vital that these children are protected from any of the obvious and continuing conflict between their parents. Both parents have heard that message multiple times, and in multiple courts. Yet the conflict continues.
I must therefore make orders which protect X as much as possible from that conflict, although given that I must accept one party’s proposal and reject the other’s in this case, I have little doubt that the children will continue to be exposed to that conflict until one or both parents come to the realisation that only they are able to end it.
Section 60CC(2A) states that in weighing the two primary considerations, the Court must give more weight to the need to protect a child from harm than to the benefit of the child having a meaningful relationship with both parents.
That requirement is a major factor in these proceedings, as it means that even if I were to find that X’s relationship with his father might be somewhat compromised by a decision to leave him at (omitted) High School, I must give greater weight to his need to be protected from the conflict between his parents.
The Act then sets out 14 Additional considerations that the Court must take into account.
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
X’s views as conveyed to Ms C, and to the Independent Children’s Lawyer only days before the trial, are, on their face, very clear. He wishes to return to (omitted) School immediately.
However, Ms C was concerned that X’s views may have been influenced by one or other of his parents.
I found her evidence about the incongruence between X’s words and his body language, together with X’s mother’s evidence about the nature of his personality, quite compelling.
I find that X’s views are genuine and that he wants to return to (omitted) School. However, the evidence of Ms C and Ms Jarrold, which was challenged in some detail at trial, leads me to believe that those views have been influenced by a feeling of alignment with his father.
I can make no finding as to whether that feeling of alignment has been deliberately induced by his father, but it is clear to the court that the father’s religious belief and uncompromising practice has had some influence on X’s views.
In addition, I note that the Independent Children’s Lawyer, having heard X’s views directly only days before the trial, does not recommend that he return to (omitted) School.
That does not mean that I have not considered X’s views and I repeat that I find those views to be genuinely held.
Mr Ericsson should understand that while X’s views are clear on this issue, those views are only one of the 16 matters that I need to consider in deciding what orders might be in his best interests.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
There is no evidence to suggest that X’s relationships with both parents are anything other than close, loving and respectful.
There is also evidence that he has a warm relationship with Ms O, although there is some evidence that his relationship with Mr N is not quite so tranquil.
However, his relationships with his step-parents are not major issues in these proceedings.
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
The Final Orders provide for the parents to have equal shared parental responsibility in all areas other than education and health, which remain the responsibility of Ms Jarrold.
The practical reality of X’s life is that his mother has made a decision about his education with which his father vehemently disagrees. The court does not criticise Mr Ericsson for wishing to be involved in decisions about major long-term issues such as his sons’ education, but I find that that issue was decided by Judge Phipps after a four day trial in 2014.
Both parents have taken every opportunity to spend time and communicate with the children, and in this regard I do not criticise Mr Ericsson for agreeing to orders curtailing his Thursday evening time with the children for the practical reasons that are set out above.
The (ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
It is said that child support is every child’s right and every parent’s responsibility.
Mr Ericsson pays formal child support pursuant to an assessment provided by the Department of Health and Human Services (Child Support), and because of his lack of employment and receipt of Centrelink benefits, he pays only the minimum amount.
That is a source of considerable tension between the parties, as Mr Ericsson provides other financial support for the children by way of buying them items he considers they need outside that assessment process.
Nevertheless, I cannot find as a matter of fact that Mr Ericsson has failed to fulfil his obligations to maintain his children, and it is not in dispute that he provides for their material needs whenever they spend time with him pursuant to the final orders.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
In practical terms, this is a very important consideration for the Court in these proceedings.
Of course, in reality, my decision does not involve a consideration of whether X might be separated from either of his parents or any other child or person with whom he has been living.
However, it does involve, at its heart, a consideration of X’s separation from his (religion omitted) education and community provided by his attendance at (omitted) School, and the effect on him of that separation, and thus I will deal with this issue here.
It is the evidence of Mr Ericsson, Ms O, Mr A, and Mr G that the impact on X of not being able to be immersed in his (nationality omitted) culture on a daily basis will be to diminish his identity as a (nationality omitted) man, and that it will be unlikely that he will be able to return to the (religion omitted) form of (religion omitted) as practised by his father as an adult.
While I understand the importance to those witnesses of their own deeply spiritual practice and lived experience of (religion omitted), and their desire to have X join in that daily practice for his own benefit, I cannot ignore the example of Mr Ericsson himself, who rejected an (religion omitted) path as an adolescent and young man, only to return to it later in his life.
That example indicates that X, who, it must be remembered, lives in two (religion omitted) households, and was, until the end of his primary school education immersed in those practices and that culture, is well able to return to (religion omitted) practice in later life, if indeed he ever leaves it.
There is no evidence before the court that X wishes to depart from the (religion omitted) practice of (religion omitted), or that he had done so in the seven or eight months he had been attending (omitted) High School at the time of trial of this matter.
I accept that his daily experience is different at (omitted) High School than it would be at (omitted) School, in that he is not exposed either to the culture or the curriculum of (religion omitted) during school hours.
Nevertheless, I find that the arrangements Ms Jarrold has made for him, together with the fact that her home is an (religion omitted) home, and that his fortnightly weekends and half holidays are spent in his father’s more observant (religion omitted) home, are adequate for him to practise his faith and keep contact with his (religion omitted) roots should he wish to do so.
The impact of this decision on him might well be negative in the short term, as he told Ms C that he would have “a big disagreement” with a decision requiring him to remain at (omitted) High School.
However, that impact will be greatly influenced by the way his parents deal with the decision, and it was the evidence of Mr Ericsson himself that children usually manage change more positively than do adults.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
Ms Jarrold and X live in (omitted).
X attends (omitted) High School, a distance of some 42 kilometres from his home. The evidence of his mother and of Ms C is that he travels to (omitted) High School by train from (omitted) Station to (omitted), a journey of about one hour, and then walks the remaining distance to (omitted) High School which takes about 10 minutes or so. He catches a bus or is driven to (omitted) Station.
(omitted) School is in (omitted), about 44.3 kilometres from X’s home by road. In order to attend (omitted) School, as he did for the second half of 2016, he would have to take two trains, one from (omitted) to (omitted), and then another from (omitted) to (omitted), a journey of about 2 hours, after which he would need to walk to (omitted) School, which takes another 10 to 15 minutes.
So the practical difference in travel time between the two schools is a little over one hour each way, or about two-and-a-half hours per school day. That is a significant amount of time for any child.
Mr Ericsson says that X could use the extra time on the train to do homework or other study, which would reduce the amount of time he would need to spend on those tasks at home.
However, he deposed previously that the journey from (omitted) to (omitted) was indeed burdensome on X.
It was Ms Jarrold’s evidence that the extra time spent travelling is not beneficial to X and that he was coming home very tired when he was travelling to (omitted) School in 2016. I accept that evidence, which was not challenged by Mr Ericsson at trial.
It was Ms C’s clear evidence that the difference in travel times, and the burden that would place on X, were significant factors in her recommendation that he remain at (omitted) High School.
I find that simple commonsense indicates that the difference in travel arrangements between X’s home and (omitted) High School, and his home and (omitted) School would mean that he would have to rise and leave home earlier, and would return home later if he were to attend (omitted) School.
That difference in time means that he would spend less time with his mother, and make little or no difference to the time he spends with his father.
It would therefore have little or no impact in practical terms on his ability to maintain his relationship with his father, but it would mean that he would spend more time at his home with his mother and his siblings.
(f) the capacity of:
(i) each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The Court has no concerns about the ability of the parties to provide for X’s material needs. He is housed, fed and clothed appropriately in both parents’ households.
He is reported to be progressing well at school, so there are also few if any concerns about their capacity to provide for his intellectual needs.
It is in the area of X’s emotional needs that the Court has serious concerns.
His father’s deep belief in and passion for his religious practices sometimes gets in the way of his capacity to recognise X’s emotional and psychological needs, and Ms C was convinced that Mr Ericsson had placed pressure on X, or, at very least, that he had influenced his wish to return to (omitted) School.
X has lived with the conflict between his parents ever since separation, and that conflict has only worsened since Ms Jarrold and the children moved to (omitted), which created significant practical problems for the operation of the Final Orders. That is not a criticism of Ms Jarrold, but merely an observation of the reality of the children’s situation.
I take those issues very seriously in these proceedings.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
I have already stated Ms C’s view of X’s level of maturity and her concerns that, despite his clear communication to her, he might have been influenced in his views.
Mr Ericsson presents as a passionate and sincere man, whose personal difficulties do not arise from any lack of maturity in itself, but from an apparent inability to consider views apart from his own. It is the rigidity of his thinking which has contributed to his part in the conflict between him and Ms Jarrold, although it is difficult to say whether that rigidity is caused by his religious faith or whether he was attracted to (religion omitted) because its rituals and practices satisfied his need for certainty in his world.
Ms Jarrold presents as a mature woman, who holds a significantly responsible job, although the filing of multiple Contravention Applications might indicate that she is not yet ready to fully let go of her relationship with Mr Ericsson.
What is very clear in these proceedings is that there is a clash of personalities between the parties which has yet to be resolved, if indeed that is even possible.
The consideration of the “lifestyle, culture and traditions of the child and of either of the child’s parents” is at the very heart of these proceedings.
It is Mr Ericsson’s clear view that unless X experiences the immersion in (religion omitted) culture and religion that can only be provided by (omitted) School on a daily basis, he might lose his (nationality omitted) identity.
That gives X little credit. He is now 14 years old. He has had his (omitted) and is therefore considered to be an adult in his (nationality omitted) community. He wears a (omitted) to school, even though he is probably the only child at (omitted) High School who does so.
Ms C says X has a very clear and heartfelt (nationality omitted) identity.
I understand Mr Ericsson’s position. He feels his own (nationality omitted) identity is inextricably entwined with his (religion omitted) beliefs, rituals and daily practices.
But as Ms C also points out, he came back to the more “traditional” and (religion omitted) practice of (religion omitted) later in his life after having been raised (religion omitted), but having drifted away from those practices in his youth.
He himself is a salient example of an adult who practises (religion omitted) without having done so as a teenager and young adult. He should give his son credit for his strong (religion omitted) identity and have faith that, while his daily practices might not be as strictly observant as Mr Ericsson would like, X’s religious and cultural identity is unlikely to diminish as a result of attending a (omitted) school so much that he cannot regain it later in life. That is especially so when X spends each alternate weekend, school holiday time and half (nationality omitted) holidays with his father.
Ms Jarrold’s evidence was clear: she is an (religion omitted). She and her family (omitted). They go to (church omitted). They celebrate all the important days in the (nationality omitted) calendar. It might sometimes be necessary for her to use motorised transport and electronic devices on days when Mr Ericsson would not, but it was clear from her evidence that that does not affect her view of herself and her family as (religion omitted).
She has done all she can to ensure that the children keep up their (nationality omitted) studies by arranging online programs for them. While Mr Ericsson is pleased that she has been able to do so, he does not believe those programs are sufficient for the children, and complains that the children’s education level is actually higher than the standard of the online programs.
He says that their level of (religion omitted) fluency has already been diminished by not attending (omitted) School, despite the fact that their step-father, Mr N, is a native (language omitted) speaker.
I take all of that evidence into account – it is very important evidence.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
X does not have any Aboriginal or Torres Strait Islander heritage.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
It is obvious to the Court that X’s parents both love him dearly and I am satisfied that both want only what is best for him.
His father’s strongly and viscerally held belief is that he can only have “the best” by being immersed in the (religion omitted) tradition at (omitted) School. That may well be so, but the Act requires me to consider what orders might be in X’s best interests in his current reality, rather than what might be “the best” for him in an idealised “best of all possible worlds” scenario.
X’s mother, who has cared for him since birth, believes that his (nationality omitted) identity is solid and can be maintained through his online study and the religious practices of her family in X’s home, as well as those of his father’s household when he is in his father‘s care.
(j)any family violence involving the child or a member of the child’s family;
In the current proceedings, there have been few if any allegations of ongoing family violence, although in previous proceedings Judge Phipps found, as a matter of fact, that Mr Ericsson had engaged in family violence.
I am also aware that Ms Jarrold sees Mr Ericsson’s ongoing behaviour in not returning the children after their time with him, and in bringing these proceedings as indicative of an ongoing desire to control her.
As there have been findings of family violence, both physical and emotional, made against Mr Ericsson in previous proceedings, I do not think it is fanciful for Ms Jarrold to hold that belief.
Nevertheless, it was Ms C’s view that Ms O, and her relationship with Mr Ericsson, had had some positive influence on Mr Ericsson’s wellbeing as Ms O told her that there was no family violence in their relationship, which is consistent with Ms O’s affidavit evidence, which I accept.
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
There have been several Family Violence Intervention Orders between these parties, and there were criminal proceedings against Mr Ericsson in 2014-15 for breach of an Intervention Order that led to him being convicted and fined.
The latest Intervention Order was made against Mr Ericsson on 8 June 2016, that Order expiring on 8 June 2017.
That order was made by consent without admissions as to the allegations contained in the Application and Summons.
There was also a suggestion that Mr Ericsson either had sought, or would be seeking an Intervention Order against Mr N but there appears to be no clear evidence in relation to that Order.
Therefore, there must have been evidence at the time the 2016 Order was made that there had been family violence and that it was likely to recur, as that is the test for an Intervention Order to be made pursuant to the Family Violence Protection Act 2008 (Vic).
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is almost always preferable to make final orders after a trial, and I will do so in relation to X’s schooling.
Because of the circumstances of this case, and because Mr Ericsson’s views are so deeply felt and genuinely held, it is likely that he will attempt to obtain orders for Y and Z to return to (omitted) School for their secondary education.
I will therefore make a specific order in relation to their secondary education in an attempt to avoid further proceedings between these parties on substantive issues relating to the children’s care arrangements.
However, I have little confidence that that will be the end of the matter given the parlous state of the parental relationship.
(m)any other fact or circumstance that the court thinks is relevant.
There are no other facts or circumstances I believe to be relevant in these proceedings.
Decision
When I take all of the above evidence and legal issues into account, I find that overall, and on balance, it is in X’s best interests for him to remain at (omitted) High School, or such other secondary school as his mother, in the exercise of her sole parental responsibility in matters of education, might nominate.
Because Y will complete his primary school education at the end of 2018, in an attempt to provide certainty for the children, I will also specifically leave the question of his and Z’s secondary education to the mother, again in the exercise of her sole parental responsibility in matters of their education.
Those findings will require me to discharge or vary certain parts of the Final Orders, particularly in paragraph 12, and I will make orders to that effect.
I note that during the trial, it became clear that the parties were in agreement that the time spent between the father and the children on Thursday afternoon/evenings during term times had become problematic for all concerned, and that I should make an order discharging that time and for the regular weekend time to be extended to 7:00pm on Sunday, and I will also make orders to that effect.
Conclusion
As I noted in my judgment in relation to the mother’s Contravention Applications,[11] this is a very high conflict family, and as I stated in my Introduction to these Reasons, the issue between them in these proceedings is both fairly simple and very complex.
[11] Beesley & Ericsson (No 4) [2017] FCCA 2189 at paragraphs 165 to 169
The father is a deeply passionate, and sometimes even volatile man who practises his faith sincerely and in accordance with the strictly observant (religion omitted) traditions of (religion omitted). His heartfelt belief that those traditions provide the most acceptable way of being (nationality omitted) leads him to try to ensure that his sons are raised in that tradition both spiritually and culturally.
The mother, on the other hand, is not so strictly observant, although she was offended by suggestions that she might practise a “Liberal” form of (religion omitted). She presents as a rather intense and somewhat world-weary woman who has some fear of the father as a result of family violence which was found to have occurred in previous proceedings, and she impresses as having been somewhat worn down by the constant litigation between the parties, although I note that it was she who instigated the last Contravention proceedings and that she filed yet another Contravention Application on 10 November 2017, some two months after the trial in the current proceedings.
I note that both parents have been found by this Court to have contravened the Final Orders, and it does not seem credible that their religious practice differences can be held solely responsible for the entirety of the proceedings between them.
At the trial of the previous Contravention proceedings on 23 February 2017, I said the following to counsel:
I suspect that these parents are going to be in this court arguing about their arrangements for the children until Z (sic in transcript) is 18; that’s what I suspect. It’s going to make a motza for the lawyers, and it’s going to take up a lot of this court’s time. That’s what I think is going to happen […].
It must be said that there is nothing about the current proceedings that has led me to change that view.
The file in this matter now fills two large cardboard boxes - it is what we refer to as “a box file”. It now contains seven volumes of documents. Most cases before this Court contain one, or perhaps two if a matter is particularly complex.
I have noted that there are other proceedings currently before the court in relation to further contraventions said to have been committed by the father.
I suspect that these proceedings form only the latest chapter in what has been and will continue to be a saga of disputes between these parties in relation to the children’s upbringing.
I can only hope that I am wrong.
I certify that the preceding three hundred and sixty nine (369) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 19 January 2018