Fall and Fall

[2008] FamCA 1007

FAMILY COURT OF AUSTRALIA

FALL & FALL [2008] FamCA 1007

FAMILY LAW – CHILDREN – schooling – application by wife seeking orders with respect to changing school children attend – application relates to 15 year old twins – where one child lives with the mother and one with the father – whether change of school in best interests of the children

Family Law Act 1975 (Cth) ss 60CC

APPLICANT: Mr Fall

RESPONDENT: Ms Fall

FILE NUMBER: ADF 142 of 2006

DATE DELIVERED: 11 November 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 11 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D.M. Berman

SOLICITOR FOR THE APPLICANT: White Berman and Co

COUNSEL FOR THE RESPONDENT: Miss M.T. Pyke QC

SOLICITOR FOR THE RESPONDENT: Sykes Bidstrup

Orders

1. Within seven [7] days the parties give notice to E College that the child C born on the … October 1993 will not be attending E College after 2008.

2. Within fourteen [14] days the parties do all such things as necessary to accept the scholarship offered to C by S College for the 2009 to 2011 school years and to enrol C in S College.

3. If M born on the … October 1993 indicates to both of the parties or, if the parties are in dispute, as to M’s wishes, Ms T or such other expert as agreed by the parties (such agreement to be reached within seven [7] days from today) that she wishes to attend S College after 2008 that the parties also give notice to E College that M will not be attending there after 2008 and take all necessary steps to enrol M at S College in 2009 and thereafter.

4. I make orders in relation to the sale of the J Street property in terms of the minutes this day signed by me, with the husband's solicitors to engross within seven days.

5. That the husband's application in a case in relation to the sale of the other properties is adjourned to 30 January 2009 at 2.15 pm before me.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 142 of 2006

MR FALL

Applicant

And

MS FALL

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application in a case brought by the wife filed on 16 September 2008.  In that application the wife sought orders that:  (a) no later than the commencement of the last school term in 2008 the parties give notice to E College that the child of the marriage, C, who was born in October 1993, will not be attending E College after 2008; and (2) that the parties do all such things as necessary to convey to S College acceptance on C’s behalf of the scholarship offer for the 2009 to 2011 school year.

2. The wife also now seeks, in respect of the child M, orders that provide that if M indicates to both of the parties, or, if the parties are in dispute as to M’s wishes, to Ms T or another agreed expert, that she wishes to attend S College after 2008, the parties also give notice to E College that she will not be attending there after 2008 and take all necessary steps to enrol M at S College in 2009 onwards.

3. This is an application in a case brought by way of an interim application by the wife, in September 2008.  It has been heard by me today, by consent of the parties, on the affidavit material which is before the Court.  Therefore the allegations made in each of the party's affidavits have not been tested by the process of oral evidence and cross-examination. 

4. It is nonetheless a matter which needs to be determined.  It does not readily fit into the description of an “interim” application, requiring as it does a decision which will have an immediate effect upon the children of the parties.

5. I am obliged to consider the provisions of Part VII of the Family Law Act which guide the Court in making decisions concerning children and in particular how the Court determines what is in the best interests of the children, being the paramount consideration as set out in the Family Law Act.

6. The provisions of the Family Law Act contain, in the beginning of Part VII, sections which deal with the objects and principles underlying the objects of the Part of the Act which deals with children. That includes a provision that requires that the objects are to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. One of the principles underlying the objects of the Act is that parents share duties and responsibilities concerning the care, welfare and development of their children and that parents should agree about the future parenting of their children.

7. In this case it is clear from the litigation before me that the parents are unable to agree about the future parenting of the children so far as it concerns the schooling, in particular, of C. 

8. C and M are twins who are now aged 15, having been born in October 1993.

9. The Court has made orders by consent some time ago which provide for M to reside with the husband and C to reside with the wife, with each of the children spending time with the other parent and siblings in accordance with the consent order.

10. The wife alleges in her affidavit that the changes to schooling for C and M arose out of her concern that the fees for E College had not been paid and that approximately $20,000 was outstanding, notwithstanding that she was under the impression that the husband would pay those fees because he had undertaken to the Court on a prior occasion that he would pay the school fees.

11. The wife's evidence in her affidavit is that, following upon her concern about the continuation of the children at E College (their current school) she made inquiries at various schools, including S College where C and M had previously attended some years ago for a period of years.  Arising out of that inquiry, S College has offered C a scholarship of 40 per cent of the normal fees. 

12. I accept the wife's evidence that the arrangements she made at that time were prompted by her concern about the possibility that the children might be forced to leave E College because of the failure to pay the school fees.  I also accept that her affidavit asserts that she originally made inquiries for both C and M. 

13. It is also correct that the original application to this Court was for an order concerning C and not M.  However, the affidavit material filed by the parties includes correspondence from the wife's solicitors to the husband's solicitors of 22 August 2008, wherein it refers to a meeting between the parties and the twins, the day before, and sets out the arrangements proposed by the wife which include that a full-fee place is available for M at S College but that the wife was not in a position to make payment of the fees.

14. Correspondence between the parties thereafter followed and no agreement was reached. However, the letter from the husband's solicitors to the wife's solicitors dated 28 August 2008 sets out certain conditions upon which the husband would agree to the children changing schools from E College to S College.  They commence at the bottom of page 2 and continue on to page 3 and conclude on page 4.  The majority of the conditions relate to the arrangements to be made for the payment of school fees and the proposed sale of properties in D.

15. There is an issue in the affidavit material about C’s wishes.  The wife proposed at one stage that the child C, in particular, be interviewed by Ms T, who has previously prepared reports in the matter, so that the husband could be assured about C’s wishes. 

16. The wife asserts that C is keen and committed to the proposal to accept the scholarship and for C to attend S College.  The husband does not accept that allegation and says that C is ambivalent to the concept.  He says that M is only agreeable to the concept of C attending S College if she too can attend at S College. 

17. The husband alleges that the wife is attempting to drive a wedge between C and M.  This is denied by the wife.  In her responding affidavit she asserts that M continues to want to go to S College and denies that C is ambivalent. 

18. The husband asserts, in his affidavit and through counsel, that it is not appropriate for me to determine, on the evidence currently available before me, which is the better school, whether it be academically or otherwise.  I accept that is correct.

19. This is a decision that has to be made based upon what is in the best interests of the children, bearing in mind the provisions of the Family Law Act and in particular section 60CC.

20. The primary considerations, namely the question of protecting the child from harm by being exposed to abuse, neglect or family violence, are not relevant in this matter.  Nor is it relevant to consider the benefit to the child of having a meaningful relationship with both of the child's parents in this context.

21. It is not submitted that there is any risk to the meaningful relationship between C and the parents or M and the parents. 

22. It is submitted that the clear indication from C, through the wife's affidavit, is that it is C’s wish to attend S College and accept the scholarship.  The husband asserts that the method used by the wife is one which has deliberately influenced C inappropriately and that it is not up to C or indeed either of the children to decide for themselves where they attend school.

23. I accept that it is the responsibility of parents to make that decision.  In this case, however, the parents have been unable to agree upon a decision about what is in the children's best interests, so it falls to the Court to decide the same on the limited amount of evidence available to the Court.

24. One of the considerations that has to be borne in mind is the additional consideration in section 60CC(3) which is:

    “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.”

25. I have the wife's evidence that the views expressed by C are strong.  I have the husband's evidence that her views are ambivalent.

26. In relation to the issue of maturity I note that M and C are now 15.  It appears their level of maturity and understanding of issues is not one which is challenged.

27. I take into account the offer the wife made for M and C to be interviewed by an expert, to put before the Court an independent indication of the views of the children, but that offer is rejected by the husband.

28. I also take into account the provisions of subsection (b); namely the nature of the relationship of the child with each of the child's parents and other persons. 

29. The nature of the relationship of C and M, with each of their parents is such that a decision has been made which means that the children, albeit twins, live in separate households most of the time; M resides with the husband and C resides with the wife.

30. C spends more time with the wife; similarly, M spends more time with the husband.

31. It is particularly important in this case to also consider the nature of the relationship of M and C with each other and with their older sibling W.  W attends E College and is about to go into year 12.

32. When I take into account the nature of the relationships between each of the daughters, their parents and each other, I have to do that in the context of the living arrangements which have been put in place by their parents.  I also need to consider the likely effect of any change in the child's circumstances, including the separation from any other child or other person. 

33. If C attends S College and M decides that she does not want to attend S College, then the likely effect will be that C and M will obviously not spend time together at school.  The wife submits that her proposed move in the near future will mean that the children, M and C, will reside closer together than they do now and there is the potential for them to spend more time out of school hours together.

34. W will be in year 12 in 2009.  Bearing in mind the differences in age, a change of school may not necessarily be as significant a change in relationship between W and C.

35. The capacity of each of the child's parents to provide for the needs of the child, including emotional and intellectual needs, the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child's parents are relevant factors.

36. The husband submits that the wife has set about deliberately to make these arrangements without his cooperation and is deliberately driving a wedge between M and C.  The evidence does not establish these allegations even on the balance of probabilities. 

37. The parents have the capacity to provide for the children's day-to-day needs, and emotional and intellectual needs.  Both parents have entered into an arrangement whereby M resides with the husband and C resides with the wife.

38. The other provisions of section 60CC are not significant, save and except that it is preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children.  It is not established that either the order proposed by the husband or the order proposed by the wife would bring about a situation that would be least likely to lead to the institution of further proceedings concerning these children.  They are now 15 and will be 16 next year, so it is to be anticipated that, in any event, litigation would need to come to an end fairly soon.

39. C has allegedly indicated to the wife that she wants to accept the S College scholarship and on that basis would be willing to use funds which C has apparently described as her funds.  The wife indicated she would only contemplate that proposal on the basis that, when the property settlement proceedings between the parties has concluded, C would be refunded any amount paid.

40. The husband points to this as another example of improper behaviour by the wife.  I would concede that if a parent sought to use a child's savings by their own initiative it would not necessarily be in the best interests of that child.  However, the wife alleges that C has, therefore, a strong wish to be enrolled at S College and to take advantage of the scholarship which she has obtained.

41. I gave consideration to whether I should make any order in relation to C which left the question of the issue of M undecided and therefore leaving it up to M to bring about discussions with her parents.  However, in view of the difficulty the parties have in agreeing upon their parental responsibilities that is not a burden I think M should bear. 

42. At the moment the father has asserted that it would be best if C and M attended the same school, and set out in his letter certain conditions which he placed upon any agreement that they attend S College.

43. It is necessary to weigh up the evidence, which has been untested, to determine what is in the best interests of both C and M. 

44. I have weighed all the matters carefully.  In relation to C I am satisfied that it is in her best interests that she be given the opportunity to accept the scholarship that has been offered to her at S College and attend there for the conclusion of her secondary schooling. 

45. I also am of the opinion that it will be in the best interests of both C and M for M to be given the option for her to attend at S College, on the understanding that the Court has ordered that C is to be enrolled at S College.

46. The orders which the mother proposed in her application need further consideration.  At the moment paragraph 1 related to "no later than the commencement of the last school term in 2008".  That time has passed.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  24 November 2008