Fairchild and Medina (No.3)

[2018] FCCA 993

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIRCHILD & MEDINA (No.3) [2018] FCCA 993

Catchwords:
FAMILY LAW – Parenting – best interests of the child – children’s wishes.

Legislation:

Family Law Act 1975, s.117(2)

Family Law Rules 2004 (Cth), r.17.03

Applicant: MR FAIRCHILD

Respondent: MS MEDINA

File Number: SYC 6362 of 2007

Judgment of: Judge Henderson

Hearing date: 23 February 2018

Date of Last Submission: 23 February 2018

Delivered at: Sydney

Delivered on: 23 February 2018

REPRESENTATION

Counsel for the Applicant: Ms Christie

Solicitors for the Applicant: Armstrong Legal

Counsel for the Respondent: Mr Blackah

Solicitors for the Respondent: Horowitz & Bilinsky

Counsel for the Independent Children's Lawyer: Ms Webber

Solicitors for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

1. The Orders of 18 March 2014 be varied as follows:

   (a)Order 1 be amended to read: That the husband and the wife shall do all acts and things and sign all documents necessary to:

   (i)Cause the enrolment of and attendance by [X] at (School A), (omitted) to commence in Year 8, 2018.

   (b)Order 2 be amended to read: “That the father pay all tuition fees, books, uniforms and other necessary fees as are required by each school, and to give effect to this, the following shall apply:

   (i)The mother pay each of these expenses as referred to in Order 1(b) as and when they fall due;

   (ii)Within 7 days of payment by the mother, the mother is to email the father with the invoice and receipt of payment for the relevant expenses; and

   (iii)Within 7 days of receipt of the email by the father as referred to in order 1(b)(ii), the father is to reimburse the mother for the relevant expense to her bank account.

   (iv)In the event the father fails to comply with reimbursement pursuant to order 1(b)(iii), then interest is to accrue on the outstanding amount in accordance with Rule 17.03 of the Family Law Rules 2004 (Cth).

2. All extant applications be adjourned to 23 May 2018 at 9.30am for directions in order to allow time for family therapy to continue.

IT IS NOTED that publication of this judgment under the pseudonym Fairchild & Medina (No.3) 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. The matter of Medina & Fairchild. This is an interim application by the mother to change their daughter, [X]’s school from (School B) to (School A). The father opposes the application.

2. Ms Christie of counsel acted for the mother, Mr Blackah was counsel for the father, and Ms Webber acted for [X] in this matter.

3. The evidence I read was:

   a)the mother’s affidavit and application filed 18 January 2018

   b)the father’s response and affidavit filed 12 February 2018. I rejected him being able to rely upon a late filed affidavit of 22 February 2018, given it had not complied with our practice direction in relation to interim hearings.

4. Exhibit 1 was the school reports of [X] from (School B) for 2017.

5. There was case outline by each Counsel.

6. The Independent Children’s Lawyer’s exhibit 1 was a report of Ms M, who is conducting family therapy for the parents and children, and by consent was requested to provide a report, she says, addressing the issue of [X]’s schooling.

7. [X]’s wishes in that report are clear. At page 5, under the heading [X]'s View, Ms M’s report says this:

   She spoke openly and at length about a number of different things which would seem to be of importance to her, one of which was the school she would like to attend.

8. In summary:

   She loves both her parents … naturally, doesn’t want to be involved in their dispute … greatly misses her father … wants to see him, and finds not being able to do so, difficult … had been heartbroken by the text received from her father at the end of 2017 … has strong views as to how she would like the time to be arranged between the two households –

   which for [X] is an equal time arrangement -

   and she wants to go to (School A)’s, and to choose her own elective subjects.

9. The father, through his counsel and his affidavit, and through Ms M, is of the view he is not convinced that [X]’s views have been formed independently in relation to the schooling issue. [X]’s reasons for this decision she has reached are also set out in the second paragraph, on page five of the report and I will read them out shortly. They are cogent, they are well thought out and based in reality, as one would expect from an intelligent, young girl who will be 14 years of age in mid-2018.

10. Her reasons are this: dynamics in relation to her peer relationships at (School B), which is noted by both her parents and which the school - as she is currently attending (School B) at the moment - had endeavoured to address this year and were cognisant of last year. Her belief that these dynamics would be different at (School A). She has struggled with the amount of work at (School B). She was not given help with her maths she wanted, and did not get to see the school counsellor until almost the end of the term.

11. She, herself, has done some research and read; the word she used was “blurbs” on (School B) and (School A). From her point of view and in her mind (School A) was the one that would more suit her. Her aunt, mother and uncle had attended the school. Her mother thought it would be a good school for her, and that is clear that that is her mother’s position. The school offered her courses that she wants to do, such as (subject omitted). She is passionate about two things: wanting to attend (School A), and wanting a week-about arrangement. Quite frankly, I accept [X]’s views on both those issues.

12. I have given weight to [X]’s views, both as to missing her father and wanting an equal time arrangement, as well as (School A) being a choice for her of a school that she believes, as Ms Christie put to me, will best fit her. Not a better school than (School B) but one that will best fit her.

13. Now, the issue of the change of the school arose, in large part, due to a most distressing event in late 2017 for the mother, the father and the children. The father talks to Ms M about a mental health crisis. I will use those words here as it is not pejorative in any sense. There is no doubt he suffered from that crisis in late 2017.

14. As a consequence of that he acted in a fashion that he now not take back. He sent text messages to his children, and he wrote letters to their school. And they are here and there’s nothing we can do about that. Most distressingly for the children, as [X] refers to it to Ms M, he wrote to the children and told them that he would not be seeing them until they were, about, 18, that the Court processes was a significant issue for him, and that this was believed this was best for the children at this stage.

15. He sent letters to both the children’s schools, (School C) for [Y] and (School B) for [X], that he wouldn’t be paying the school fees, and the children be withdrawn from the school. This correspondence in relation to the children’s schools was still occurring between the father and, in particular [Y]’s school in January 2018, this year, and they are attached to the mother’s affidavit. The father clearly suffered an awful event for him. The consequences have been that the children have also suffered from that.

16. To use a clumsy phrase, he was not functioning at all well, and certainly not to the level of the competent, capable, intelligent man that he clearly is. Now, I have no doubt, and it is clear from the father’s evidence in his affidavits, which again on an interim hearing I accept wholeheartedly, he regrets his actions and conduct, but perhaps had no control over it at the time. I cannot say. He certainly regrets greatly the hurt and dismay he caused both his children, because it is clear to me these children are very attached to their father.

17. They love their father, and they obtain significant benefit from spending what was significant and substantial time in their father’s care, although the children were on a six/eight care regime. Since those distressing incidents the children have not seen their father in any meaningful sense. That quite frankly, is a significant issue for me today. The father referred to the Court process, as he saw it, being a significant catalyst. I don’t dispute that: I accept entirely what the father says. He had, as he told Ms M an experience of a mental health crisis, but that he has recovered from that. I hope that is exactly correct.

18. [X] says, as I have read out, she greatly misses her father, wants to see him, had been heartbroken by the text she received from him. As a consequence of this event the mother, quite properly - because she also is a competent, capable, caring, intelligent parent - began enquiries in relation to other schools for the children to attend in 2018, given what the father had written to her. I make no criticism of the mother for doing that. That was appropriate, child focused and what she needed to do.

19. In relation to [Y] it is clear and both his parents agree, as does [Y], that (School C) is his school. He benefits greatly from that school. He enjoys that school, and he has re-attended that school. So for [Y] things have continued as they were without much significant change to his schooling. His father continues to pay school fees, as the orders of 18 March 2014 have said he should. However, the consequences for [X] of the events at the end of 2017 have resulted in her doing her own research.

20. Clearly, this change was proposed to her by her mother because the mother talked to her about having to go to a new school, and it was a proposal the mother put forward that she attend (School A) - I do not say [X] went out and found these schools on her own, but clearly this was a hot topic of conversation at the end of 2017 in this household, about what school were these children going to attend - and a school that her mother had some knowledge of, and her adult family members had also attended.

21. Now, that research and the mother’s understandable response to the father’s emails has resulted in [X] clearly expressing a wish to change schools, as clearly as she expresses a wish to live equally with her mum and her dad. It is not a wish, as Ms Webber, the independent children’s lawyer, said because she does not want to attend (School B). We do not have one of those situations. [X] believes that (School A) will be a better fit for her, suit her and the sort of person she is, her personality, her needs, her passions and her desires.

22. There is no doubt, as was properly put to me by the father, her academic achievement at (School B) improved in 2017. She did better in the second half of 2017 than she did in the first half, no doubt about that. She did have peer issues, there is no doubt about that, and they are being addressed in 2018. It is not an uncommon thing, particularly for teenage girls. She was very disappointed that she did not see the school counsellor earlier than she did see the school counsellor. She did not feel that she had been supported in maths tutoring, which she says she needs.

23. That she felt overburdened by the amount of work at (School B), not that she was not coping with it but overburdened by it. Additionally, as [X] says, (School A) will give her an option to do an elective subject she wants, which is (subject omitted) and she wants to do that

24. Now, there is no issue that the (School B), as put to me by the father, is a known quantity for his daughter. She has never attended (School A). She has been attending (School B). We know what it provides. We know what it has achieved for her. She knows that school. She knows the system and regime.

25. (School A) is completely new. Apart from additional courses that the school at (School A) will offer to (School B), the father says that (School B) is the school that she should continue to attend because that is the stability of what has been happening, and what the parents agreed in 2014 as one of the options for a school for her to attend. It is clearly an unknown, as the father put to me, whether apart from the additional courses [X] believes she can take at that school, will she get the same counselling that she got at (School B). Will she have the same or better, or more difficult peer group relationship? Will she get the maths tutoring she wanted? Will she be overburdened or not overburdened with work from (School A)?

26. All are these are unknowns. No one can say what is going to happen at that school. Her father is correct to point out that her academic success at (School B), and the manner in which the school has addressed her issues with peer groups, that this school has been very important in maintaining the stability, continuity and what she has effectively known for many years. [X]’s time with the father as with [Y], is still up in the air due, and I have to say this, to the father’s actions in late 2017, which he may have had no control over and so there is no criticism. [X] is the subject of this decision.

27. They are up in the air because his children have not spent any time with him, something that [X] clearly regrets and wishes to redress. There has been a significant disruption to the usual care regimes. Thus, it is tasked to me to make a decision for this girl about which school she should attend, a girl I do not know at all, because her parents cannot agree.

28. As I see it, the salient facts are this. Both schools provide a high quality of education. I am not here today to pick one over the other. I could not do it, would not do it, do not have the evidence.

29. At [X]’s age, her level of maturity and intellect, I must give weight to her wishes. They have been clearly expressed in an expert format. Schooling, that is the school the child attends, is a matter of parental responsibility and not dependent primarily or necessarily on a child’s wishes. [X] is likely to do well or as best as she can, she appears to be that sort of student, at any school she attends.

30. Going to the Act, I need not go through all the factors. The parties have consent orders about equal shared parental responsibility in their children’s life. I am not cutting across that at this stage, and I would not at all.

31. The factors that are relevant to me in this matter are clearly the wishes of the child, [X], expressed by the expert, the insight and capacity of the parents to provide for the child’s emotional, psychological needs, and the nature of the child’s relationship with each of their parents.

32. Now, the insight and capacity to provide for a child’s needs was lacking in the father in late 2017, and I make no criticism, in light of his startling emails to his children and communications with the school.

33. The mother’s actions in exploring new schools for her children was protective and appropriate. This has resulted in, as Ms M calls it, and I will just read it out so I get it correct, created an opening:

    Given that the opening for [X] to choose a different school came about through Mr Fairchild’s initial communication to the effect that she would no longer be attending (School B), it may now be hard to convince her to change her views as to which school she should attend.

34. If her wishes now at this stage are not honoured by her parents and by the Court, this may have a very negative consequence for her, and her relationship with her father, and her relationship with her mother. If [X]’s views, well expressed, well thought out, well supported by cogent reasons, are not now supported that may have implications, as I have said, for her relationship with both parents, and for her resuming her all-important relationship with her father.

35. The father, himself referred, in his emails to his children, a one-sided attitude or approach of the Court, that the Court did not take account of his well thought out and positive position in relation to matters that the Court was tasked to deal with, and that they were not accepted by the Court. He quite properly, found that hard to accept. Again, I make no criticism. But it is referred to by the father in his emails to his children that these were issues he found difficult to accept and understand. No criticism.

36. However, the father is an adult, and [X] is a child. It may well be the same for [X], that is that if the Court and her parents do not now accept her well thought out, cogent, well-reasoned reasons, her position, that she may, herself, also find this a very, very difficult decision to deal with and cope with, and she does not have the emotional capacity, or experience, or life to draw upon to accept an unpalatable decision as adults do.

37. The mother has made an application for her costs in this matter, and I accept that the mother has been successful in her application, and the father unsuccessful. However, there must be some impellor in Family Law proceedings where each party generally bears their own costs that would cause me to exercise my discretion under 117(2).[1] This is a matter about a child’s school. The mother sought the child be removed to a new school. The father sought she remain at the current school that she is attending.

    [1] Family Law Act 1975 (Cth), s.117(2)

38. Although it may be, ultimately, that perhaps this has come about because of conduct of the father towards the end of 2017, that issue has yet to be explored, how that came about, and I could not say that this was an intentional act of the father, if he was not functioning as well as he usually does, and we have talked about a mental health crisis, nervous breakdown, whatever condition you call it. The father retrieved himself fairly quickly, and offered to continue to pay the children’s school fees, and for them to continue at their schools.

39. [Y] continues at his school, (School C). His daughter, [X], wishes to change school, and I found in favour of that order, namely the application which the mother brought. However, I found this a finely balanced matter. This was not a matter which had inevitability about it. I certainly needed to look at the facts. I certainly needed to review the evidence. This was not a matter I could simply give a decision upon after evidence closed. In those circumstances I do not propose to exercise my discretion to make costs orders, despite what I know to be disparity in the parties’ financial position.

40. Given, as I said, the absolute imperative importance of [X]’s ongoing relationship with her father being restored as soon as is possible, I find that the order that is in [X]’s best interest is that which provides for her to attend (School A) as set out in the mother’s interim application. That is the order that I find will hopefully restore this all-important relationship with her father, and give [X] that which she has clearly set out she desires.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date:  23 April 2018