Finley & Finley
[2021] FamCA 607
•20 August 2021
FAMILY COURT OF AUSTRALIA
Finley & Finley [2021] FamCA 607
File number(s): NCC 1809 of 2018 Judgment of: CLEARY J Date of judgment: 20 August 2021 Catchwords: FAMILY LAW – BEST INTERESTS – Competing applications over a specific issue as to which schools the children should attend for secondary education, or in the case of the elder child the remaining years of secondary education – Where the parties ask the court to make an order authorising one of them to make decisions about the future school enrolment of both children – Where both parties prefer a private secondary education – Where the father proposes boarding schools in Sydney – Where the mother proposes local schools where the children can attend as either weekly boarders or day students – Where the father accepts responsibility for payment of tuition and boarding fees for both children at whichever school they attend – Where the Court is satisfied that the parties have exercised parental responsibility in a satisfactory and effective way to date – Where the parties agreed after separation that the children live with the mother and spend time with the father by arrangement and expressed a preference for this to continue rather than having defined orders as formally sought – Where neither party wishes to exclude the other from decision making in any other respect – Where the parties have demonstrated an impressive ability to act together in the interests of the children – Where the father would undoubtedly choose the Sydney schools because of his firm beliefs and family tradition – Where the mother will most likely choose the local schools but would not discount the preference of either child if she considered it was genuine and soundly based – Ordered the mother to have parental responsibility with respect to decisions about secondary education. Legislation: Family Law Act 1975 (Cth) Cases cited: Goode & Goode [2006] FamCA 1346 Number of paragraphs: 72 Date of hearing: 9 and 10 August 2021 Place: Newcastle Counsel for the Applicant: Mr Williams Solicitor for the Applicant: Goldsmith Lawyers Counsel for the Respondent: Mr Tregilgas Solicitor for the Respondent: Everingham Solomans Solicitors Counsel for the Independent Children's Lawyer: Mr Guyder Solicitor for the Independent Children's Lawyer: Legal Aid ORDERS
NCC 1809 of 2018 BETWEEN: MR FINLEY
Applicant
AND: MS FINLEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
Other
ORDER MADE BY:
CLEARY J
DATE OF ORDER:
20 AUGUST 2021
THE COURT ORDERS THAT:
1.That the mother have parental responsibility for X born … 2007 and Y born … 2010 (“the children”) with respect to decisions about secondary education for the children.
2.The mother shall keep the father advised of:
2.1Any decision by her to:
2.1.1Change the present enrolment of X to a different school;
2.1.2Enrol Y at a particular school;
2.2Any subsequent change of enrolment for either child.
3.The Amended Initiating Application of the father filed 3 June 2021 and the Amended Response of the mother filed 15 July 2021 are otherwise dismissed.
NOTATION
(A)The children have since the separation of the parties lived with the mother and spent time with the father on alternate weekends, during school holidays and at other weekdays and special times, by arrangement between the parties. Both parties anticipate the continuation of these arrangements, including variation by agreement.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Finley & Finley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CLEARY J
These are competing applications made by the parents of two children, X a girl aged fourteen years, and Y a boy aged ten years.
There is a dispute over a specific issue, namely the schools which the children should attend for secondary education, or in the case of the elder child the remaining years of secondary education.
The parties ask the Court to make an order authorising one of them to make decisions about the future school enrolment of both children. An unresolved difference of opinion on this issue has been rumbling between them for at least the three years since an application was filed by the father. Probably the dispute has been alive for much longer.
THE PARTIES
The parties have been separated for six years. There is about 40 kilometres between their respective homes.
After the decision to separate in 2015 they continued to live in the family home together for about six months. In March 2016 after the mother had established her current home in the local town of C Town, she moved with the children to live there. X changed enrolment to the local primary school. Y was enrolled in Kindergarten there.
The parties are not divorced and there is no application on foot. There is no evidence of a new partner for either party.
The parties reached an agreement about division of their matrimonial property. Orders were made by consent in April 2021.
The father pays to the mother a monthly sum as a contribution to the support of the children. He also meets school expenses, tuition and boarding. The mother is confident that the father will maintain that support.
The Applicant Father
The father is aged 51 years. He is a farmer, living and working on a family owned farming property in B Town in the D region of NSW.
The father was severely injured in a farm accident before the parties met. Subject to the physical disability arising from that accident the father is fit and able to work.
The Respondent Mother
The mother is aged 45 years. She lives in the town of C Town in the D area of NSW.
When the parties married the mother was a manager for a business in G Town. She ceased paid work when the elder child was born. Post separation the mother has tailored her work to the opportunities in the town. She is employed doing administrative work in an office. She is a tutor and domestic cleaner.
THE TRIAL
All parties were represented by solicitors and counsel. The trial was conducted by TEAMS due to COVID-19 Health Restrictions on being present in the courtroom. Both parties and the Family Consultant were cross-examined. The matter was well contained within the two days allocated. Judgment was reserved.
THE ISSUE
There is one issue in dispute, schooling. Both parties prefer a private secondary education for the children. Both place a very high value on education. They do not agree about which schools the children should attend.
X
Presently X attends F School in G Town. She is a weekly boarder, returning to the home of one of her parents each weekend. She is in Year Eight.
The father proposes that X be enrolled, commencing Year Nine next year in 2022, as a boarder, at H School in Sydney.
The mother proposes for X to remain at F School either as a boarder or a day student or possibly transfer to K School on either basis.
Y
Presently Y attends J School. The school is in the local area. Y is in Year Five.
The father proposes that Y be enrolled, commencing Year Seven in 2023 at L School in Sydney.
The mother proposes that Y attend at K School as a weekly boarder or day student, for his secondary education.
Both children
The parents agree that all schools in contemplation would provide a high standard of education.
The father accepts responsibility for payment of tuition and boarding fees for both children at whichever school they attend.
The Parents
The father proposes the schools he does for these reasons. There is a tradition in his family of boys being educated at L School and girls at H School. The paternal cousins of the children attend those schools. The father boarded at L School.
Beyond that, the father believes that going to school in Sydney will provide both children with a wider perspective and exposure to greater cultural difference than remaining in the rural area of the D area. He would be open to the children attending other schools of equivalent standing if they were in Sydney.
He also believes that the children will become independent more readily and not be overly dependent on their mother if they are full time boarders in Sydney.
The mother proposes the schools she does because she believes that children should remain within the family, and have close contact with their parents growing up, to give them a solid basis for self-confidence and achievement.
The mother herself attended boarding school in Queensland. She acknowledged that her generation and those before from rural backgrounds went to boarding school but considers that educational standards have so much improved in regional areas that it is no longer necessary. The mother also holds a firm belief that “parenting should not be outsourced”.
There is no basis for criticism of either position, arrived at thoughtfully.
THE APPLICATIONS
Inexplicably, both parties in their respective documents, and the Independent Children’s Lawyer (“ICL”) in a proposed Minute of Order[1] sought that an order be made for the parties to have “joint parental responsibility”. It may reflect the wish of each party, on display during the trial, not to exclude the other from parental responsibility. There is no basis in the legislation for such an order to be made.
[1] Exhibit 5.
The additional orders sought by both parties, in terms so similar that differences are inconsequential, were: detailed orders about residence with the mother and substantial and significant time with the father (2-13); orders compelling the provision of information about the children and authorities in relation to school events (14-20); provision for overseas travel (21-23); and a process for resolution of future disputes.
The ICL
In addition to some defined orders for residence and time to be spent the ICL proposed in the Minute of Order[2] a restraint as follows:
6.The father be restrained from attempting to influence the children’s views in relation to the school they attend and/or from discussing the perceived benefit of the children attending boarding school in Sydney with or within the presence of the children and /or from allowing any third party to do so.
[2] Exhibit 5.
Each party, through their respective counsel submitted that they did not wish for such a restraint to be imposed. Each was confident, as is the Court, that the father would not engage in any conduct which would undermine the decision making of the mother.
Further, the opportunity for the children to speak freely to their father should not be impeded, particularly in circumstances where there is evidence that the father has become more comfortable about listening to the children and considering their views across the board.
EVIDENCE
The documents relied on were as follows:
The Applicant Father – Mr Finley
(a)Amended Initiating Application filed 3/06/2021;
(b)Affidavit of Mr Finley filed 8/07/2021;
The Respondent Mother – Ms Finley
(c)Response to Initiating Applicant filed 15/07/2021;
(d)Affidavit of Ms Finley filed 7/07/2021;
Reports
(e)Child and Parenting Issues Assessment by Ms M dated 7/12/2018
(f)Family Report by Ms M dated 11/03/2021.
THE LAW
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
·Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
·Children are protected from physical and psychological harm;
·Children receive adequate and proper parenting to help them achieve their full potential; and
·Parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
PARENTAL RESPONSIBILITY
Meaning of Parental Responsibility
Parental responsibility in relation to a child means all the duties, powers, responsibilities and authority which by law parents have in relation to children.[3] This is a reference to common law not statute law.
[3] Section 61B Family Law Act 1975 (Cth).
Who has parental responsibility?
Each of the parents of a child who is not 18 years has parental responsibility for the child.[4] That position has effect despite any changes in the nature of the relationship of the child’s parents, for instance separation, divorce, marriage or remarriage.
[4] Section 61C Family Law Act 1975 (Cth).
Parental responsibility has effect, subject to any order of a Court for the time being in force.
In this case, each of the parties has had parental responsibility for the subject children since birth. No order has been made by a Court to date.
The decision in Goode v Goode 2006 FamCA1346 enunciated the different manner in which parental responsibility is exercised where no order has been made and where an order has been made.
From the birth of a child
Parental responsibility which parents have by virtue of becoming and being parents[5] is exercised independently or jointly. It is a private matter for the parents as to how they go about it. One parent may make all or most of the decisions and be trusted to do so by the other parent, other parents will work through every decision until they reach a common position. Some parents consider the wishes of children, others do not.
[5] Ibid.
When an order for parental responsibility is made by a Court
When an order provides for two or more persons to share parental responsibility, and the exercise of that parental responsibility involves making a decision about a major long term issue in relation to the child, the order is taken to require the decision to be made jointly. That is to say each person is required to consult the other in relation to the decision and to make a genuine effort to come to a joint decision about that issue.[6]
[6] Section 65DAC Family Law Act 1975 (Cth).
Parental responsibility diminished only expressly
Further, when a parenting order is made by a Court, that order does not take away or diminish any aspect of the parental responsibility of a parent (or a non- parent with an order for parental responsibility), except to the extent, if any, expressly provided for in the order or necessary to give effect to the order.[7]
[7] Section 61D Family Law Act 1975 (Cth).
Presumption of equal shared parental responsibility
When making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.[8]
[8] Section 61DA Family Law Act 1975 (Cth).
The presumption does not apply if there are reasonable grounds to believe that a parent of a child has engaged in abuse of the child or family violence.
The parties engaged in verbal arguments which the children overheard. During the period of separation under one roof in 2015, there was a physical encounter between the parties. During an argument between the parties the father pushed the mother who fell backwards onto the floor. X, aged about seven or eight years was present to see that happen.
Neither party raised this incident in their affidavit. The information was elicited by the Family Consultant asking about the issue of family violence in interview.[9]
[9] Family Report dated 11/03/2021, par 19.
Without evidence about the event, the Court cannot find on reasonable grounds that the parties or the father alone engaged in family violence.
There is no evidence of any other incident before or since which could constitute family violence.
The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
In this matter there is such evidence which rebuts the presumption. The Court is satisfied that the parties have exercised parental responsibility in a satisfactory and effective way over the fourteen years to date. Not every decision has been made jointly.
The parties agreed, after their separation, that the children should live with the mother and spend time with the father by arrangement. The father lives on a family owned rural property and the mother lives in the local township. The parties have respectfully discussed and implemented arrangements for the children. The children have maintained close contact with both parents and extended family and have thrived as a result.
Even so after the application of the father was filed in mid-2018 the parties agreed that the elder child could start at the school she presently attends to obviate the need for an interim decision.
Neither party wishes to exclude the other from decision making in any other respect but this one, of schools.
They should, in my view, be free to continue in that way without the mandatory obligation to make joint decisions on every occasion through consultation and joint agreement.
The respective Initiating Application and Response of the parties set out a raft of orders defining residence, time to be spent with each parent and other specific issues relating to provision of information.
Despite that, each parent responded in the witness box that they had no wish to be constrained in that way. The Family Consultant expressed the view, with which the Court fully agrees, that the parents have demonstrated an impressive ability to act together in the interests of the children, to their benefit.
BEST INTERESTS OF THE CHILDREN
The Family Consultant referred to the parties being “exceptional parents”. This assessment aligns with the view formed by the Court.
The evidence supports a finding that the mother is closely attuned to the children, listens to them and acts to support their relationship with the father, the extended paternal family and friends at school. They feel free to complain to the mother about what upsets them. She is supportive of that.
The evidence also supports a finding that the father understands the children at the emotional level but has been less inclined to listen to them, or more significantly to let them know that he has listened to them before deciding something against their wishes. He encourages emotional resilience and independence.
In her initial assessment the Family Consultant highlighted that the children felt the expectations the father had of them and worried about letting him down. The father in evidence said he was “getting better at that” which was a reference to listening and engaging with the children’s views.
X has confided in her father that she would like to attend H School. She knows he wants her to go there but she may also be genuinely interested to have that experience. She told the ICL that she had a strong wish to attend that school and that her current school was her third preference.[10]
[10] Exhibit 4.
Y has enjoyed a very close warm relationship with his mother and sometimes struggled to leave her to spend time with his father. More recently his midweek time with his father has been increased at his request and that is working well.
Y has expressed strong interest in attending L School. He knows his father wants him to go there but he may also be drawn to the shared experience with his cousins who live with their parents on the same property as the father. He is also interested in visiting and viewing K School and another school, in G Town.
CONCLUSION
In the event that the father was given the responsibility to determine schools he would undoubtedly choose the Sydney schools because of this firm belief about the benefits which would flow to the children from their attendance there.
It is most likely that with the authority to do so the mother will choose schools in G Town. Nevertheless, the Court is confident that the mother, who has a history of attending to the children’s ideas, feelings and aspirations would not discount the preference of either child if she considered it was genuine and soundly based.
For that reason, and further because I am confident that the mother would set aside her own sense of loss if she did decide that either child or both should be schooled in Sydney, an order will be made in favour of the mother on this specific issue.
Both parties when asked, expressed a preference for continuing to work out arrangements for the children between themselves, rather than having defined orders as formally sought.
For that reason and because the Court considers that the best interest of the children are served by each party continuing to have full parental responsibility, with the exception of the schooling issue, no orders about time and specific issues will be made. There will be a Notation about current arrangements as a point of reference.
The parties will otherwise be free to go on exercising parental responsibility in the unfettered way they have to date.
Orders are made accordingly.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cleary. Associate:
Dated: 20 August 2021
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