Fairchild and Medina

[2016] FCCA 1945

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIRCHILD & MEDINA [2016] FCCA 1945

Catchwords:
FAMILY LAW – Parenting – application by the father to allow the child to play (sport omitted) – mother did not agree to child playing – child’s welfare not at risk whether he plays or not – parents cannot agree – no orders are to be made and the application is dismissed.

Cases cited:
V R & R R (2002) FLC 93

Applicant: MR FAIRCHILD

Respondent: MS MEDINA

File Number: SYC 6362 of 2007

Judgment of: Judge Henderson

Hearing date: 25 May 2016

Date of Last Submission: 25 May 2016

Delivered at: Sydney

Delivered on: 25 May 2016

REPRESENTATION

Counsel for the Applicant: Ms Gillies of Counsel

Solicitors for the Applicant:            Swaab Attorneys

Counsel for the Respondent: Mr Livingstone of Counsel

Solicitors for the Respondent: Armstrong Legal

ORDERS:

1. The Father’s application in a case regarding their son, X, playing (sport omitted) is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6362 of 2007

MR FAIRCHILD

Applicant

And

MS MEDINA

Respondent

REASONS FOR JUDGMENT

1. This is the matter of Fairchild & Medina, and is an application by a father for his son X to continue to play in a (sport omitted) competition that he has played in for the last two years.

2. The nature of the orders sought is set out in an application in a case supported by two affidavits filed by the father. One of the affidavits is in support of his initial application and the other is answering the mother’s allegations. Despite the fact that the issue before me is whether X plays (sport omitted), there has been a plethora of evidence and the matter has taken some time to read and some time to deal with.

3. The mother does not want X to play (sport omitted) and she asks that the father’s application be dismissed and, that if I do not grant that application today, that from 2017, the father be restrained from enrolling him in (sport omitted).

4. Now, it is true X has played (sport omitted) for two years, and there was no formal complaint made by the mother, such as is being raised with the Court now nor were her concerns that she now clearly raises in her material as to why she does not want her son to play (sport omitted).

5. The mother sets these reasons out in her affidavit filed in support of her response. It commences at paragraph 32 where she says that when this issue of (sport omitted) first arose in 2014 she sent an email to her husband:

   Sorry, I’m not happy with X playing the high-contact sport like (sport omitted).

6. The response comes back 23 March 2014:

   We can always ask the judicial system to sort such matters.

7. That is an approach that the father takes. It is clear in his emails, it is clear in his affidavit and it is clear in correspondence. The mother sets out a table of what she would regard as harassing and threatening behaviour by the father annexed to her affidavit and marked as annexure F. I am not going to go back in time, because the matter has been dealt with by orders made in 2014.

8. For example, on 28 January 2016 the mother says:

   I received a letter from Mr Fairchild’s lawyers stating I was in contravention of the orders for taking unilateral action to submit a form directly to the registrar of (omitted) School.

9. On 3 February 2016:

   I received a letter from Mr Fairchild’s lawyer informing me I was in contravention of the orders for driving X from (omitted) to his residence.

10. On 15 February 2016 the mother says:

    The father threatened her with breaching the orders when she offered to pick X up from the (omitted) School’s placement exam.

11. On 18 February 2016:

    I received a letter from Mr Fairchild’s lawyer informing me that urgent orders with costs will be sought unless I agree to X playing (sport omitted).

12. On 25 February 2016:

    Mr Fairchild refused to allow X, who was off school sick, to be collected from our residence by his parents. He insisted I deliver him to school or I would be in breach of orders.

13. And so on. I have read out a few of the many letters in her material that are relevant. So there is clearly an extremely rights’ based approach here by the father which is that he will, as he perceives it, come to the court to deal with matters concerning the parenting of his children when he and the mother disagree.

14. That is completely contradictory to the best interests of children. A Court is no place for parents to come to make decisions about what extra-curricular activities they engage in, let alone such important things, such as schooling, education and medical assistance. Yet, that is what is happening in this particular matter.

15. The mother did allow X to play and apparently consented to X playing (sport omitted) for the last two years. She now has withdrawn that consent and has clearly and squarely placed on the Court record by her affidavit in her response that she no longer wants her son to play (sport omitted) in this particular competition. The father is desirous of X continuing to play (sport omitted).

16. As I see it, this is not a dispute that has an impact on the welfare of the child. It is not a dispute that requires this Court to interfere in order to make a decision about an extra-curricular activity a child is to play. That is a matter for parents to agree upon or disagree upon. It is not a matter for this Court to determine whether X is going to play (sport omitted) in 2016, despite the fact he may have played for two years, when his mother has clearly set out reasons why she does not want him to play now. She is concerned that it is a contact sport and that X could sustain an injury. Despite the fact there are specific rules for children’s (sport omitted), it cannot be denied that it is a high contact sport.

17. Secondly, she says her son has expressed to her a desire that he does not want to play (sport omitted). I accept X has said to his father he enjoys playing (sport omitted) and really likes playing (sport omitted). I accept that is what he said to his dad.

18. Thirdly, she is concerned about travel and, fourthly, about the children being in different activities. I do not see those issues are really weighty, because these children will, as it was submitted by Ms Gillies, when they attend private schools next year, will be attending different schools and they will be going all over the state. X may well be playing (sport omitted) next year when he attends his private school, and that will be a matter for his mother to determine with the school.

19. However, for this Court today, in using the words of the decision in V R & R R, paragraph 30:

    In our view it is not the role of the Court to identify and then seek to determine every matter that is in issue between two estranged parents who cannot agree in the way their child is to be raised. The Court should only interfere in the way in which a parent proposes to raise a child to the extent that the welfare of the child requires interference.

20. I am not satisfied today that the welfare of X is at such a risk whether he plays, or does not play (sport omitted), that this Court should interfere. Given the parent’s cannot agree, I propose not to make any order about X playing (sport omitted) and as such, the father’s application in a case is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 27 November 2017