Gallieni and Gallieni

[2008] FamCA 1180

FAMILY COURT OF AUSTRALIA

GALLIENI & GALLIENI [2008] FamCA 1180

FAMILY LAW  -  CHILDREN  -  dispute about schools  -  interim order to remain at current school  -  final parenting orders save re schooling

Family Law Act, 1975 (C’th)
HUSBAND:	Mr Gallieni

WIFE: Ms Gallieni

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 7541 of 2008

DATE DELIVERED: 10 December 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 10 December 2008

REPRESENTATION

COUNSEL FOR THE HUSBAND: Mr G. Kenworthy

SOLICITOR FOR THE HUSBAND: Kenworthy Lawyers

COUNSEL FOR THE WIFE: Mr T. Moisidis

SOLICITOR FOR THE WIFE: Slater & Gordon

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER Ms S.E. Mansfield

INDEPENDENT CHILDREN’S LAWYER Victoria Legal Aid

Orders

1. That the parties have equal shared parental responsibility for … born … July, 1993 (“the child”). 

2. That the child live with the wife.

IT IS FURTHER ORDERED

1. That until further order the child remain enrolled at M College in H, Victoria, subject to any agreement in writing to the contrary between the parties. 

IT IS FURTHER ORDERED BY CONSENT

1. That the child spend time with the husband as follows :

   (a)at Melbourne from 21 December, 2008 until 2 January, 2009;

   (b)for the second half of the long summer holidays which commence in 2009;

   (c)for the first half of the long summer holidays which commence in 2010;

   (d)for the first half of the school term holidays in 2009 and 2011;

   (e)for the second half of the school term holidays in 2010;  and

   (f)at other times by agreement. 

2. That the wife facilitate the child contacting/or being contacted by the husband via mobile telephone or internet that he pays for at any reasonable time and in private. 

3. That the husband, the wife and their servants and/or agents be restrained from denigrating the other to the child or in her presence or hearing. 

4. That the husband, the wife, their servants and/or agents be restrained from discussing with the child or in her presence the Family Court proceedings including child support and financial matters between them.

5. That all extant applications for parenting orders be dismissed, save applications relating to the child’s education, which may be re-listed upon notice. 

6. That the evidence of Mr. V be transcribed and a copy made available to the parties.

7. That a transcript of the proceedings be obtained and placed on the court file.

8. That the reasons for judgment this day be transcribed and copies made available to the parties.

9. That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

10. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

AND THE COURT NOTES

The evidence of the wife that she will assume responsibility for the payment of the child’s fees at M College, H, absent any agreement by the husband to contribute or order of the court that he contribute. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7541 of 2008

MR GALLIENI

Husband

And

MS GALLIENI

Wife

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT 

1. Proceedings commenced in the Magistrates’ Court in Perth, where the father filed an application on 9 July 2008.  As I understand, there was some form of case assessment conference and family consultant involvement and an order was m­ade transferring the case to the Family Court of Western Australia.  Thus commenced these proceedings which involve the parties' daughter, born in January 1993.  The child is 15;  she will be 16 soon. 

2. The parties married in 1987. Having lived in Melbourne for years with their daughter, and their twins, now 21, the father obtained work from a Western Australian base in about 2004.  He moved the family across in early 2006.

3. The girls (the subject child and her older sister), had been at L College in Melbourne.  In Perth the child was enrolled at L College Perth and stayed there for 2006, 2007 and into 2008. 

4. There is a dispute as to the circumstances of the parties' separation.  The father's evidence is that just after he had left for a four-week employment stint in the Northern Territory, the mother contacted him and said that they were separating and she was taking the child to Melbourne.  He returned to Perth in early June.  On his material it seems there were then either no discussions, or inconclusive discussions, and it came as a surprise to him when, in early July, the mother advised him that she and the child were going to leave Perth and live with the mother’s sister in T in Melbourne.  By then the parties elder daughter, was also living with her maternal aunt in T, having been enrolled in a university in Melbourne. 

5. The mother's evidence is of long-term unhappiness about the move to Western Australia and of agreeing to move only on the basis that the family would return to Melbourne if not content in Perth.  She dates the separation as late May or early June 2008.  There is a dispute about that.  In any event, around July, the mother moved back to Melbourne with the child and it was that which gave rise to the application which was filed on 9 July.

6. On 31 July, still in the Magistrates’ Court at Perth, and notwithstanding the earlier order for transfer to the Family Court of Western Australia, another order was made which provided that, until further order, the child live with the mother.  An application for a recovery order, presumably brought by the father, was refused and the case was again transferred to the Family Court of Western Australia. 

7. On 8 August there were further proceedings and another order made in the Magistrates’ Court in Perth. That order, which really is the starting point for these proceedings, provided that the mother have sole responsibility for the enrolment of the child into L College in Melbourne. An order was made pursuant to s.139 of the Child Support (Assessment) Act that the father pay the sum of $12,000 by way of contribution to the child’s education costs, in addition to any assessed periodic child support.  That amount was to be paid into a named account with Westpac and the mother's solicitor was restrained from disbursing the proceeds other than for payment of fees to L College.

8. The court noted that the order was made subject to further characterisation of that $12,000 lump sum and without prejudice to the rights of either party to seek final orders in relation to the child’s education.  At the end of those proceedings, the Magistrates’ Court transferred the case to the Family Court of Australia, in Melbourne. 

9. On 28 October the father filed an application for contravention, seeking that the mother be dealt with for contravening that order made in the W.A. Magistrates’ Court on 8 August.  He alleged she had breached the order by failing to enrol the child in L College and had instead enrolled the child at M College, in H.  That application was returnable in this court on 10 November, and it seems it was mentioned by phone before Bennett J.  The wife was ordered to file and serve affidavit material in response to the application for contravention.  Various orders were made, relating to the lease of a commercial property at C.  Bennett J. referred the matter to the coordinating registrar to arrange an issues assessment by a family consultant, a conciliation conference and at least a half-day hearing of the contravention application. 

10. The matter was before her Honour on 12 November and was adjourned to today.  The issues assessment was arranged for Monday of this week.  The independent children's lawyer had been asked to interview the child by the time that issues assessment was undertaken, and I am grateful to the independent children's lawyer for doing that on very short notice.  The parties were ordered to attend a conciliation conference tomorrow, at 12 noon. 

11. The father filed material in support of the contravention application.  The mother, as she was entitled, did not file any material in response.  I have heard briefly from each of the parties today and had them confirm those statements on affirmation.  I heard an oral issues assessment from Mr V, and will ensure the parties get a transcript of that in due course. 

12. Mr V met with the child and the parties on Monday.  He saw the key issues as the father's difficulty in coming to terms with what is still a very recent separation and breakdown of a marriage which, on his account, was not something he wanted and is still not something he wants.  Ideally, he would like the child to return to Perth.  His position, as relayed to Mr V, is that irrespective of the outcome, he himself proposes to live in Perth.  His preference would be for the child to live in Perth and go to L College, whether living with her mother or living with him.  If she attends a school here he would like it to be a private school, but not a Catholic school.

13. The mother gave a very different perspective to Mr V.  From her perspective the marriage was problematic for years and while she would like the child to go to a private school, she has no funds which will allow that. 

14. Importantly, Mr V described the child as a mature, articulate and well‑balanced child.  It must be said that she sounds a delightful teenager and a credit to both of her parents.  In his opinion, the child was not unduly influenced by her mother, but her primary connection and attachment was with her.  Her father's work has taken him away a lot, but it was clear that she loved her father and was struggling with the pressure this litigation was imposing on the family.  She was worried about her future and worried about financial matters, which is not a healthy position for a girl of her age.

15. Mr V saw the child as having well-considered views.  She wants to stay here in Melbourne.  She was clearly able to say that she had been sorry to lose friends in Perth but that loss was compensated by her happiness at returning to the place where she had lived for her first 13 years.  She felt settled at M College, even though she has only been there a term or so.  She clearly wanted to spend time with her father. 

16. Mr V’s recommendations was that the child should be allowed to stay at her current school.  Ideally, she should attend a school agreed to by the parties, but that is a pious hope in the context of this case.  Absent agreement, she should remain at M College.  He thought both parents need to work on redefining their parental relationship;  both might benefit from some form of counselling.  He saw it as important for the mother to actively facilitate the child’s relationship with her father.

17. Today the parties have agreed on final orders pursuant to which they will have equal shared parental responsibility for the child and the child will live with the wife in Melbourne.  They have agreed on arrangements for holidays, which will result in the child spending frequent and regular time with her father, including arrangements - again, much to their credit - for the coming summer school holiday.  They have agreed on injunctions, aimed at not implicating the child in their dispute.  They have not been able to agree on what should happen about her schooling. 

18. It must be said that the evidence about what has happened since the orders were made in Perth is inconsistent and contradictory.  Without testing by cross-examination, I cannot determine the contested accounts. 

19. The father's position is that the mother told the court in Western Australia there was a place for the child at L College.  On making enquiries, he found there was not a place at L College, so did not pay the $12,000, as ordered.  The mother's evidence is that the father told her there was not a place at L College.  When she contacted L College, she was told that was not right, and there was a place.  But as the father had not, or would not, pay the money to the mother’s solicitors,  the child clearly could not go to L College. 

20. The father has suggested the child attend either E College or H Grammar but has not advanced an order requiring him to pay fees at either of those schools. 

21. It is clear from counsel for the mother's submission that there was some mention of the child attending H Grammar in the proceedings in Western Australia.  The father cannot be criticised for not agreeing to that school then, if the parties were then talking about attendance at L College.   

22. The independent children's lawyer has had no time to make inquiries about either E College or H Grammar.  The heart of the father's objection is his wish that his daughter not attend a Catholic school.  Insofar as the parties have a religious background, I understand it is Macedonian Orthodox.  That faith has many parallels and some intersections with the Catholic Church, but there are different nuances and some differences of principle.  Broadly, both might be called Christian religions.  There is little evidence about the parties' own religious practices, if any, as is not uncommon in cases such as this.  The two girls were at L College in Melbourne prior to the family’s move to Perth, a church which has religious origins, but is now a broadly non-denominational Christian school.  Religion is an important part of its ethos and no doubt underlies its principles.

23. M College is a Catholic school.   As the child’s draft report shows (I stress it is a draft report, and the one her parents get in due course might be a bit different) religion is an important aspect of the school's curriculum and an important part of the school community's ethos.  To that extent it is different and it has a more focussed religious base than a broadly based non‑denominational Christian school. 

24. Although I do not have specific evidence of this, the court can take notice, after many cases over the years, that H Grammar comes out of the grammar school tradition, which is more usually an Anglican based tradition.  Again, the school will rest on a religious ethos, but it will not be as specialist and focussed as M College.  E College is more likely to be a secular school. 

25. Mr V’s evidence was that the child told him that her older sister was paying her fees, which are around $5,000 a year at M College.  That would be a much, much lower sum than either H Grammar and certainly L College.  E College fees may fall somewhere between $5,000 and the fees charged by mainstream private girls’ schools, but I am not sure.

26. The father has not sought an order which would require him to pay private school fees for the child himself;  his focus has been on the school, not on payment.  The parties are attending a conciliation conference tomorrow and these issues may be raised there.  But it is not a case in which the father says :  "I'd like her to go to one of these two schools and I will pay all the fees."  

27. About the law I will say only this.  It is the best interests of children which are paramount and parents' wishes and desires must give way to those best interests.  By agreeing to final parenting orders today, both parties have compromised but the major compromise has come from the father, who has been able to put the child’s best interests ahead of his own and agree to orders  which will allow her to stay here in Melbourne.  That was no doubt difficult for him to do. 

28. The primary considerations, set out in the Family Law Act 1975, are not of great assistance in this case. The legislation stresses the importance of children maintaining a meaningful relationship with both parents and the importance of protecting them from psychological and physical harm. Those are often vital determinants of children's cases, but they are not of assistance in this dispute. Education and religion are matters about which parents who share parental responsibility must confer, and about which they are required to agree. But if they do not agree, the court must determine the issue.

29. Looking at the statutory additional considerations, the court must place weight on the child’s views, particularly given her age and maturity.  A child of 15 is not necessarily the person who is in the best position to make a decision about long-term education, which is why adults decide where children should go to school.  Nevertheless, a child of 15 is in a good position to give an indication of how comfortable he or she feels with a particular school and whether happy or unhappy at the school.  The strong sense of Mr V’s evidence is that the child wants to be settled.  To some extent, the school she attends may be secondary to that desire.  She moved from L College Melbourne to L College Perth, moving with her mother and siblings, and no doubt believing she was to stay there.  She has now come back to Melbourne, in the context of family breakdown, a very, very different way to return.  She finds herself, for reasons I cannot be sure of, at a different school but one where she is settling and has friends.

30. In my judgment and despite legitimate complaint by the father that the child was enrolled at a school with an ethos he does not share, I do not find it to be in her best interests to move to another school now.  I propose to order that, until further order, the child continue to attend M College. 

31. The continuing proceedings relate mainly to financial matters but the child’s schooling could be reconsidered when the parties have come to terms with their separation.  But this order will allow the child to remain at the school for the balance of this year and be confident of attending again next year.

32. I will note on the order that the mother has been accepting responsibility for the payment of fees and has indicated, through her counsel and to me, that if she must, she will continue to do so.  I do not order her to do so;  no application before me would allow me to make such an order.

33. The father may feel the child is not getting as good an education now as she got at L College.  By that I mean nothing derogatory about Catholic schools in general or M College in particular.  The fee structure of such Catholic schools is different to that of large schools like L College, which may be indicative of the respective opportunities available.  But the bottom line is that children who are secure in family situations and who feel that their parents are supportive of their education are more likely to be resilient and do well, whether at a State school, Catholic school or private school.  There is much more at stake than brochures about what is on offer at individual schools.

34. I will order that, until further order, the child continue to attend M College in H, unless the parties agree to the contrary.  I will put the note to the order that I have foreshadowed.  The applications for parenting orders will be dismissed, save as they relate to the child's school.  I will not discharge the independent children's lawyer now.

35. I will grant the father leave to withdraw the contravention application.   

I certify that the preceding
35  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2009.

…………………………………………
Associate.