Foley and Foley

[2010] FamCA 1175

FAMILY COURT OF AUSTRALIA

FOLEY & FOLEY [2010] FamCA 1175

FAMILY LAW – CHILDREN – where the parties are unable to agree as to the children’s future schooling arrangements – where the parties have equal shared parental responsibility – best interests – orders that the children are enrolled at a new school

Family Law Act 1975 (Cth) ss 43, 60B & 60CC

APPLICANT: Ms Foley

RESPONDENT: Mr Foley

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADC 5437 of 2007

DATE DELIVERED: 17 December 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 17 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: IN PERSON

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: IN PERSON

Orders

1. The interim orders made on 11 October 2010 are continued pending final orders or other order.

2. Both parties forthwith take all steps necessary to ensure that the children K born … December 2000 and J born …July 2001 are enrolled and attend the W Primary School.

3. The final orders application is referred to the Docket Registrar for the appropriate directions to prepare for a First Day Hearing.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 5437 of 2007

MS FOLEY

Applicant

And

MR FOLEY

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I will continue the interim orders I made on 11 October 2007 pending the final orders or other order. 

2. In relation to the issue of schooling, which is the main matter that is before me today, it is clear from the affidavit material before me that the parents are unable to come to an agreement concerning what is in the best interests of their children.  This is so notwithstanding final consent orders were made in relation to the financial and children’s matters in March of 2009. 

3. There is before the Court the Initiating Application seeking interim orders filed by the mother and the response filed by the father and the affidavits which relate to the issue of the children’s schooling being the affidavits of the father and the mother both filed on 14 December 2010.

4. Today, both parties appear before me unrepresented.  I have heard their submissions.

5. The Family Law Act1975 (Cth) (“the Act”), objects are set out in section 43. One of the factors contained therein is:

   The need to protect the rights of children and to promote their welfare and the means available to assist the parties to consider an improvement of their relationship to each other and to their children.

6. The parties have attended upon conciliation services but still have been unable to agree upon an arrangement which would be for the schooling of the children. 

7. The provisions of section 60CC direct the Court to certain matters when considering what is in the best interests of the children.  The best interests of the children are the paramount consideration.

8. It appears that notwithstanding the order that the parties have equal shared parental responsibility, they have been unable to come to any agreement. Section 60B of the Act says that the objects of the Act are to ensure that the best interests of the children are met by:

   “Ensuring that the children receive adequate and proper parenting to help them achieve at their full potential –

   and

   ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.”

9. The principles underlying those objects are set out in section 60B(2) also include subsection (d), “Parents should agree about the future parenting of their children.” 

10. Regrettably, the parents in this matter have been unable to carry out those responsibilities and agree upon what is best for the children so far as schooling is concerned.  It is therefore left to a Judge of the Family Court of Australia to make that determination for the children due to the inability of their parents. 

11. The proposal is put before the Court today by the mother that the children continue at S private school in W and the father continue to pay the school fees.  If that is not possible and the children are to change schools, she proposes they attend G School with the father paying a lesser sum by way of school fees at that private religious school. 

12. The father’s proposal is that the children attend W Primary School which is a state school which will not incur the private school fees. 

13. I have the affidavit material of both of the parties setting out the basis upon which they seek to promote their choice of school for the children.  The affidavit indicates that the father has not paid two terms for this current year at S school.  He claims that he is financially unable to do so and he claims that he is financially unable to pay any private school fees.  There is considerable dispute as to the father’s current financial circumstances how he chooses to organise his finances and other matters relating to his business.

14. It is not possible for the Court to determine, on the face of the inadequate documents before the Court, whether the mother’s case is correct or whether the father’s case is correct. 

15. The father asserts that he is close to bankruptcy and is having difficulty making payments.  It is not possible for the Court to, again, adjourn the matter to require the parties to present their material properly.  They have both chosen to be unrepresented.  It is late in December 2010.  It is important that the children know where they will be attending school in 2011. 

16. The provisions of section 60CC are not in themselves entirely relevant to the Court exercising, what would otherwise be, a parental obligation to decide which school the children attended.  In section 60CC, the primary considerations are the benefit to the children of having a meaning relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.  When deciding which school the children are to attend, those primary considerations are not directly relevant. 

17. Similarly, many of the additional considerations are not particularly relevant except that the Court needs to consider the capacity of each of the child’s parents to provide for the needs of the children including their emotional and intellectual needs. 

18. On the evidence presented before the Court, it would appear that neither party has the capacity to provide for the needs of the children attending S private school which would continue the stability to benefit the children.

19. One of the other significant factors is also subsection (i), the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents.  Both of the parents have demonstrated an inability to carry out their responsibilities to ensure that their finances will allow the children to continue at S school. 

20. The “likely effect of any change in the child’s circumstances” under subsection (d), usually refers to time spent or separation from either of their parents or another child with whom they have been living.  It may be appropriate to consider that in the future, the mother’s other children may not be able to attend the W Primary School.  It is not clear who would pay for them to attend any of the private schools proposed.

21. The most significant factor is subsection (d);  the likely effect of the change for these two children, the subject of these proceedings, caused by a forced removal from the school which they have been attending because their parents are unable to either agree or make financial arrangements for that schooling to continue.

22. The other provisions in subsection 60CC are not of assistance to the Court in this matter.

23. As a Judge of the Family Court of Australia I must therefore make a decision which should otherwise be made by parents.  I must weigh up the evidence including the unsatisfactory evidence in relation to the financial circumstances.

24. My concern about the likely effect of any change in the children’s circumstances means that if the father is correct and he cannot afford to make the payments for any private schooling, then a change to the G School may be a temporary one only.  If the father did not pay the fees, the children would then be required to change schools again. 

25. The disadvantage of the W Primary School is the distance required to be travelled.  However, it is very similar to the distance which would need to be travelled if they continued at S School. 

26. The benefits to the children in relation to the W Primary School are the continuation of schooling in the area that they have been attending with the possible similar range of children attending that school and the possibility of interacting with children who have previously had the benefit of attendance at S School. 

27. It is not possible to make a decision which pleases both of the parties and will ensure the best interests of the children in the future because of the extreme difficulty these parents have in exercising their responsibility as parents to agree upon what is in the children’s best interests.

28. It is of significance that the mother is now applying for sole parental responsibility concerning the children but that decision can only be made to overturn a consent order made as recently as March 2009 after the evidence before the Court has been appropriately tested.  It is not, at this stage, appropriate to pre-empt any decision that might be made by way of final orders. 

29. In conclusion, therefore, and doing the best that the Court can, I propose to order that the parents forthwith take all steps necessary to ensure that both children are enrolled in, and attend for 2011, the W Primary School. 

30. The other applications for final orders and interim orders are referred to the Docket Registrar for preparation for directions for a first day hearing.

31. I have already indicated that I am continuing the orders I made in October until the final determination of the proceedings.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 17 December 2010.

Associate: 

Date:  22 December 2010