Gantry & Chiswick
[2022] FedCFamC2F 1044
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gantry & Chiswick [2022] FedCFamC2F 1044
File number(s): MLC 14123 of 2021 Judgment of: JUDGE BLAKE Date of judgment: 10 August 2022 Catchwords: FAMILY LAW - Parenting – parents have equal shared parental responsibility – competing applications to award sole parental responsibility for education – practicality of giving mother sole parental responsibility for education when children live with father – mother’s mental health, capacity and judgment considered – mother’s ability to foster relationships with third parties considered – held that father have sole parental responsibility for education of all of the children. Legislation: Family Law Act 1975 (Cth) ss 61DA (2), 61DA (4). Division: Division 2 Family Law Number of paragraphs: 62 Date of hearing: 15 July 2022 Place: Melbourne Counsel for the Applicant: Ms Patterson Solicitor for the Applicant: Perry Weston Lawyers Solicitor for the Respondent: Appeared in Person Solicitor for the Respondent: None ORDERS
MLC 14123 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GANTRY
Applicant
AND: MS CHISWICK
Respondent
order made by:
JUDGE BLAKE
DATE OF ORDER:
10 AUGUST 2022
THE COURT ORDERS THAT:
1.Order (2) of the orders made by Judge Carter on 21 February 2020 be dismissed.
2.Subject to order (3) below, the parties have equal shared parental responsibility for X born in 2005, Y born in 2006 and Z born in 2009 (collectively, the ‘children’).
3.The father have sole parental responsibility with respect to the education of the children.
4.The father is to notify the mother of the dates and times of all Parent Teacher Interviews pertaining to the children and provide to the mother copies of all school reports, school notices and details of extracurricular activities of the children.
5.The father is to provide to the mother all information he receives relating to the participation of Z as a ‘team member’ at any future Sporting Team Championships in which she participates as a ‘team member’.
6.The amount of costs specified in order (6) of the orders of 17 February 2022 be paid by the mother to the father within 21 days of the date of this order.
7.The Amended Response of the mother is otherwise dismissed.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Gantry & Chiswick has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
In this matter, the father seeks orders set out in his Amended Application that he, among other things, have sole parental responsibility with respect to the education of the children X born in 2005 (‘X’), Y born in 2006 (‘Y’) and Z born in 2009 (‘Z’) (collectively, the ‘children’).
The mother in her Amended Response filed 20 April 2022 opposed the orders sought by the father that he have sole parental responsibility for the education of X and Y. She also seeks an order for sole parental responsibility in respect of the education of Z. She then seeks a range of other orders set out in the Amended Response.
For the reasons that follow, I have decided to make orders that, among other things, the father have sole parental responsibility for the education of the children.
background
There is an extensive background to the present litigation. That background is recorded in, among other places, reasons for judgment delivered by Judge Carter (as Her Honour then was) on 21 February 2020: see Gantry & Chiswick [2020] FCCA 362. On that occasion, the Court made orders after a contested hearing that ran for six days. Those orders included that the parents have equal shared parental responsibility for the children, and that the children live with the father and spend time with the mother.
Since the orders were made, it is the father’s evidence:
(a)that X and Y are not prepared to spend any face to face time with their mother. It is the father’s evidence that Z remains primarily in his care but sees the mother five nights each fortnight and for half of school holidays;
(b)the maternal grandmother, Ms S, has offered to pay for the children’s secondary education at L School, a private school in Melbourne;
(c)the mother refused to agree to the children attending L School.
As a result of the mother’s refusal to permit the children to attend L School, the father commenced urgent proceedings in this Court on 20 December 2021. At that time he sought, among other things, not only the order he presses before me, but an order that he be permitted to execute any document required to enrol X and Y at L School for the commencement of Term 1 2022.
On 17 February 2022, Senior Judicial Registrar Glass (as His Honour then was) made orders permitting the father to enrol X and Y at L School. The Senior Judicial Registrar also made an order that the mother pay the father’s costs fixed, in the sum of $3731.
On 14 June 2022, the matter came on for a compliance and readiness hearing before Judge Harland. Her Honour set the matter down for a final hearing on 15 July 2022 with an estimated hearing time of one day. Her Honour also made directions for the filing of trial material. In the notation to the order, Her Honour noted that the issues in dispute for the trial included parental responsibility with respect to the education of the children, and payment of school fees.
the proceedings before me
The matter was called on for final hearing before me on 15 July 2022. The mother appeared before me unrepresented. The father was represented by Ms Patterson of Counsel. After dealing with some preliminary matters, including whether the mother could rely on an affidavit that she had filed late, the mother asked the Court to proceed to determine the matter effectively on the papers and without an oral hearing or cross examination of witnesses. Ms Patterson, after taking instructions, agreed to the Court proceeding in that manner. Accordingly, the oral hearing was adjourned and judgment was reserved.
Prior to adjourning the matter in chambers, I clarified with the parties the material each sought to rely on. The father relies on his Amended Application filed on 7 April 2022, his affidavit sworn 23 June 2022 and his outline of case filed 13 July 2022. The mother relies on her Amended Response filed on 20 April 2022 and a 463 page affidavit affirmed 12 July 2022. I have had regard to all of this material. I have also read the reasons of Judge Carter in respect of these parties dated 21 February 2020.
the proceedings before judge carter
Judge Carter made comprehensive parenting orders following a six day trial. At the end of that hearing, Judge Carter stated that she could not be satisfied that an order for equal time was in the children’s best interests, and also stated that it was not appropriate for the mother to retain primary care of the children (at paragraph [217]). As a result, the children were placed in the primary care of their father with Judge Carter making orders that the children spend significant and substantial time with the mother.
In reaching the conclusion that she did, Judge Carter:
(a)referred to the totality of the evidence prior to stating that she had ‘significant concerns regarding the mother’s mental health’ (at [201]);
(b)stated that the father appeared to have repeatedly and inappropriately involved the children in the dispute between the parents, and that he had demonstrated limited insight into how this had been destructive of the mother’s relationship with the two older children (at [210]);
(c)stated that the mother’s presentation raised significant concern about her mental health and parenting capacity (at [211]);
(d)noted that the mother had failed to undergo an independent psychiatric assessment, refused to answer questions about her mental health, was estranged from her family and that she presented as ‘an emotionally fragile, very guarded, overly suspicious, hypersensitive and perhaps paranoid woman, with eccentric and possibly delusional beliefs around privacy and confidentiality’ (at [213] -[216]);
(e)considered that as the mother appeared to be reasonably functional, the risks to the children in the mother’s care were not such that the time needed to be supervised or significantly curtailed (at [223]);
(f)noted that it remained an option for the mother to promptly obtain an independent psychiatric assessment to confirm her assertion that her parenting was not impaired by mental illness and if she did so, and the parties were unable to agree on care arrangements, that may constitute a sufficient change of circumstances such that further proceedings may be appropriate (at [225]).
Ultimately, after assessing the evidence, Judge Carter considered the question of parental responsibility. While Judge Carter ultimately made an order that parental responsibility be equally shared, she expressed reservations in doing so. Her Honour noted that:
[166] I am satisfied that there has been family violence in this matter. However, despite the parties’ hostility and lack of communication, they both propose that the parties have equal shared parental responsibility for the children. Although I have some concern about the workability of that order, I will not stand in the way of the parties’ agreed position. Both parties have much to offer the children, and neither seems better placed than the other to make decisions for the children’s long-term care, welfare and development.
the law
Section 61DA of the Family Law Act 1975 (Cth) (‘Act’) deals with parental responsibility. Subsection (1) requires the Court to apply a presumption that it is in the best interests of the children for both parents to have equal shared parental responsibility. That presumption was applied in this case by Judge Carter and was reflected in the final orders made by Judge Carter on 21 February 2020 (see order (2) Judge Carter’s orders).
The presumption set out above, however, does not apply if the Court is satisfied about the matters set out in subsection 61DA(2). Furthermore, the presumption as to equal shared parental responsibility may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility (see subsection 61DA(4)).
In this case, it is of some moment that both parties come to Court seeking that the presumption of equal shared parental responsibility not be applied. The father seeks that he have sole parental responsibility for the education of all of the children. The mother seeks an order for sole parental responsibility for the education of Z, ‘without affecting in any way her parental responsibility’ for the education of X and Y. Given this, on one view it is effectively agreed by both parties that it is in the best interests of Z at least, for parental responsibility for her education not to be shared between them. Clearly, however, there is a dispute about X and Y, and also as to the orders that should flow from the parties respective positions. Further, the mother also contends that the presumption should not be applied because family violence has been present, as contemplated by section 61DA(2) of the Act.
the evidence of the parties
The father’s evidence
In his affidavit, the father deposes among other things:
(a)that the mother behaves irrationally and has clear mental health issues. Despite that and the orders of Judge Carter, the mother has not obtained an independent psychiatric assessment in respect of her capacity or mental health;
(b)that all three children live in his primary care with the two older boys refusing to spend any face-to-face time with their mother;
(c)that [Z] has told him she would like to attend [L School] with her brothers, but that the mother refuses to consider any option other than [T School] for [Z];
(d)that if the dispute between the parents is not resolved now as to responsibility for education, the dispute will arise again in the future and will place enormous pressure on [Z]. Indeed, the father deposes that the only way in which litigation and disputation can be avoided with respect to education matters is for an order for sole parental responsibility for education to be made;
(e)to various examples of what he says is the mother’s uncompromising attitude towards the children and their education including:
(i)the mother’s refusal to agree to [Z] being in enrolled in secondary school and that the only reason [Z] ended up being enrolled in [U School] at [Suburb F] was because it was the default school for her given her primary residence;
(ii)the mother’s refusal to consider or abide by Court orders made;
(iii)the mother’s objection to certain teachers teaching the children, and her demands that the children be moved to other classes;
(iv)the mother’s ‘tirades and rants’ against parents of [Z]’s friends;
(v)the mother’s complaints about [L School] not permitting her to access the school’s portal, in circumstances where she has failed to accept the terms and conditions for access set out in the school’s business notice;
(f)that he is willing to keep the mother informed of all significant matters pertaining to the children’s education and to provide her with copies of their school reports and details of parent teacher interviews so that she can attend if she wishes; and
(g)that he does not understand the mother’s complaints in respect of alleged breaches of privacy or disclosure of confidential information.
The mother’s evidence
The mother’s affidavit is extensive and covers many matters. Much of the material in the affidavit is either of no relevance, or marginal relevance. In her affidavit, the Mother deposes to, among other things:
(a)that she has been notified that the ‘Living Arrangements’ case (which I take to be the decision and orders of Judge Carter referred to earlier) has been overturned;
(b)that the father has delayed or destroyed educational opportunities for the children. She says, by way of example, that he delayed the pursuit by the mother of a scholarship opportunity for one of the children at L School in 2018;
(c)that the father was previously opposed to the children attending private schools;
(d)that she has supported her children in their education, including by seeking information about schools for them, checking up on their calendars, checking their school reports, volunteering at school and extracurricular activities and following up on tasks they are required to complete;
(e)that the father has treated her in a derogatory way, or referred to her in a derogatory way, and in a manner that she says contravenes intervention orders. She also says that she has been ‘gaslighted’ by the father;
(f)that the Father has ‘clipped Z’s ‘wings’ and gives examples of what she says is the lack of support provided by the father to Z;
(g)that the father has by ‘deliberate unspoken acts’ caused Z to stop performing arts, and take up Sports, which ‘has created a significant injury risk which could potentially end her athletics’. The mother also says, in relation to sport, that the father has encouraged Z to play sport like her brothers. The mother says that this has occurred ‘at the expense of her [Z’s] own talents’;
(h)the Universal Declaration of Human Rights, information from the Attorney-General’s Department, and the United Nation’s Convention of the Rights of the Child, which she asserts is relevant in this matter;
(i)that L School reinforces gender stereotypes and unequal treatment of women;
(j)that T School would be the best school for Z. Among other things, the mother has included in her affidavit material information about the asserted benefits of single sex education for girls and has conducted her own analysis of L School and T School.
In addition to what I have set out above, as I have noted, the mother’s affidavit material contains a range of other allegations and complaints. Much of it is irrelevant. A great deal of it is positively scandalous, for example, her assertions that she was sexually harassed by a barrister during a hearing in this Court on 17 February 2022, or the allegation (without supporting evidence) that the father’s current lawyers (who are officers of the Court) have a conflict of interest they have failed to disclose. Even allowing for the fact that the mother is unrepresented, the matters to which I have referred and a number of other assertions or claims made in the mother’s material, and the manner in which these matters are raised in the affidavit, cause me to have serious concerns about the mental health of the mother.
It is necessary to say something about the position the mother takes in this matter. When she filed her initial Response in this Court on 15 February 2022, she sought sole parental responsibility with respect to the education of all of the children. Subsequently, orders were made after a contested hearing on 17 February 2022 for the father to enrol X and Y at L School. The orders of 17 February 2022 did not, however, give to the father sole parental responsibility for the education of X and Y. Following the orders of 17 February 2022, the mother filed her Amended Response. The Amended Response makes plain that the mother seeks sole parental responsibility for the education of Z, but proposes there be equal shared parental responsibility for the education of Y and X. How equal shared parental responsibility for X and Y might work in practice, given the relationship between these parties, their communication difficulties and the mother’s distrust of and lack of any relationship with L School (see below), is not adequately explained or elaborated on by the mother.
It is relevant to note that while the mother no longer seeks an order for sole parental responsibility in respect of the education of X and Y, she maintains in her affidavit her objection to her sons being enrolled at L School because:
[40]Reason: The private arrangement for the payment for private school fees is unsafe due to person paying refusing to rule out (via lawyer in late Nov/early Dec 2021) restriction, obligation, detriment on children and parents of children, as a result of the private school fee payments. The private arrangement is unsafe also due to a refusal to define "authentic gift'"' (see my first affirmed affidavit: Annexures 6 and 7 for context). A relevant fact is that I have a CAUSE OF ACTION against my mother, regarding alleged defamation of myself (see paragraphs 128-130 of my FIRST affirmed affidavit dated 8 February 2022)
Therefore, there is no consent from myself to enrolment at [L School]. I do not wish or intend to be based in Melbourne in the near future, and want flexibility for all my children's futures in secondary schools (and universities) without restrictions (including location restrictions). I continue to not consent to my sons' enrolment at [L School] until such time that a safe deed/agreement for the payment of private school fees exists, which accurately and clearly reflects the authentic gift continually offered, for more than a decade (ie. since the children were born).
Paragraph 57 in my first affirmed affidavit (dated 8 February 2022):" I will not consent to a coercive funding agreement. The private funding deed/agreement must safeguard flexible futures for parents and all children."
While she seeks to maintain the objection above, the mother also says it would be ‘impractical’ to enrol her sons elsewhere, due to them being in Year 10 and 11 respectively.
Finally, the mother also claims to have been excluded by L School from access to information about her sons, and that L School has interfered in private payment arrangements relating to the payment of school fees.
the best interests of the children
The mother has raised family violence in the context of section s61DA(2) of the Act. Judge Carter considered the issue of family violence and ultimately found that parental responsibility ought to be shared given the position of the parties, though she had reservations about this. Clearly Judge Carter was not persuaded that family violence was at such a level or degree that it posed a risk to the children in the care of the father. Indeed, Judge Carter ultimately ordered that the children live with the father. The principal question that arises from the mother raising this issue before me now is what family violence has occurred since Judge Carter made her orders.
On this question, I have considered the mother’s material. The mother refers largely to family violence that occurred prior to the orders made by Judge Carter. There is little, if any, clear evidence of any significant family violence since Judge Carter made her orders. Intervention orders that were in force have expired and no new intervention orders have been sought. In these circumstances, I decline to hold that section 61DA(2) has been engaged.
It is then necessary to examine the best interest considerations, in the context of section 61DA(4). The presumption as to equal shared parental responsibility may be rebutted if the Court is satisfied that equal shared parental responsibility is not in the best interests of children.
It is relevant to note at the outset that neither parent seeks to alter the living arrangements set out in the orders of Judge Carter. Those arrangements provide for the children to live with the father and spend time with the mother. As I have noted, X and Y are not spending any face-to-face time with their mother, while Z continues to spend five nights per fortnight with the mother. The position then is that the father is principally responsible for the care of these children. Critically, he is principally responsible for ensuring their day-to-day attendance at school, which would include their attendance at extracurricular school activities. The other background matter of some significance is that an order has already been made by this Court permitting the father to enrol X and Y at L School. It is against these matters that the position of each of these parties needs to be assessed.
A useful way to assess the mother’s proposal is to consider what would happen in the event I were to agree to the mother’s proposal in relation to Z. If I awarded parental responsibility for Z’s education to the mother, I expect the mother given her evidence would seek to enrol Z at T School. It seems to me, various difficulties may arise in the event that occurred. First, there is no evidence before me that the mother could afford the fees at T School on her own. There is no evidence before me that the maternal grandmother would be willing to pay the fees at T School, though the mother seems to consider she would, notwithstanding her apparent estrangement from her mother and her threatened causes of action against her mother. Second, the father would need to ensure that Z could attend T School, while also ensuring the boys attend L School which is in a different location. Third, while the mother would be making the decision about where Z attends school, it would be the father who would primarily be responsible for giving effect to that decision and ensuring its success given Z lives with him nine nights per fortnight during the school term. The mother therefore comes to Court, asking the Court to vest her with parental responsibility for making a decision with respect to the education of Z in circumstances where the principal responsibility on a day to day basis for implementing and ensuring the success of any decision she might make would be left to the father.
The above is a less than optimal outcome. Responsibility for education is more than just about picking the school a child attends. The successful education of a child requires a degree of partnership between the school and the parent. That partnership, in my view, has far less chance of succeeding if decisions about the day-to-day education and progress of the child are being made by a parent who only spends five nights per fortnight with that child. By virtue of the fact that that parent (in this case the mother) is spending less time with the child, that parent has less visibility of the child’s day-to-day progress at school, less visibility of difficulties with homework, less visibility of the child’s friendship groups and issues that may arise at school and less awareness of the other commitments and extracurricular activities the child may engage in and which may need to be fitted around school. Decisions between a parent and school may need to be made at any time, for example, about the amount of homework a child is given, whether homework could be completed, whether extracurricular activities need to be scaled back, whether certain subjects ought not be pursued in the future or whether the child should or should not be encouraged to be involved in particular peer groups at school.
I foresee real difficulties with the mother in this case being able to deal with issues such as those that I have set out above given the current time that Z spends with her, and given the state of the mother’s relationship with the father. Indeed, the issues or difficulties that the mother may confront could not only lead to a less than optimal outcome for Z and her education, but could also place significant pressure on the relationship between mother and daughter. While the father may also confront some difficulties in relation to the issues I have identified, I would not expect those difficulties to be anywhere near as great as those which would confront the mother, given the amount of time that Z lives with the father.
Related to the above are the views of Z. According to the father’s evidence Z wishes to attend L School with her brothers. It is unsurprising that Z would hold such a view and I accept the father’s evidence that it is her view. Z is of an age where I would give some weight to her views. I also observe that granting to the mother parental responsibility for the education of Z (which it seems would result in Z attending a different school from that of her brothers) could damage Z’s relationship with her mother, given her wishes would not be given weight by the mother.
While the mother does not press for sole parental responsibility for the education of X and Y, it seems appropriate to briefly deal with the practicalities of that issue given she is unrepresented and given the father’s position. X and Y are already enrolled and attending L School. The mother in her affidavit seems to accept that the die has been cast in relation to L School being the school for her sons when she says it would be ‘impractical’ to change schools, however, she continues elsewhere in her material to strongly oppose L School. The following matters need to be noted about this. If parental responsibility for the education of X and Y were given to the mother, she may choose not to continue their attendance at L School. Indeed, it is unclear what the mother’s position would be, given her conflicting evidence. That would be very unsettling for them, given that they are in the senior years of their secondary schooling, and given they have only just moved to that school. It would be contrary to X’s express wishes that he attend L School. It would also have the potential to more seriously damage the mother’s relationship with X, given his strong wishes.
Alternatively, the mother may choose to keep X and Y at L School. If she did so, that would create a different set of issues. In particular, given what the mother has to say about L School, I have little confidence that she could meaningfully engage with L School (which she would be required to do) in order to secure the best educational progress for her sons. I pause to observe that none of the issues I have identified above arise if the father is given parental responsibility for the education of X and Y.
Issues similar to those above also arise if the parental responsibility for the education of X and Y continues to be shared. The mother is hostile toward L School. It is therefore difficult to see her communicating with the school and working with it to ensure the progress of X and Y. The mother also does not see X and Y in person. It is not clear to me how she could provide meaningful guidance to them given the state of those relationships. The mother is also in continual conflict with the father (see further discussion below) so it is difficult to envisage them reaching any joint decision in relation the education of X and Y. Indeed, the circumstances of the commencement of this proceeding is evidence of their inability to reach agreement on matters pertaining to education.
There is then the question of the capacity of each of the parents to make a decision in the best interests of the children. On this issue, there are concerns I have in respect of both parents. The father comes to Court seeking parental responsibility for the education of the children. X and Y are already at L School and given the father’s initiating application it seems likely that if the father is awarded parental responsibility for education of Z, that she will also attend L School. The father therefore is an active proponent of a private school education for his children, funded by the maternal grandmother. It seems apparent from the material before me, however, that the father was previously against a private school education for the children. He was clearly opposed to the mother’s attempts to obtain a scholarship at L School in around 2018. It is not clear to me what has caused the father to change his mind about these matters. He has not explained his change of heart in the material filed.
My concerns about the capacity of the mother are of an altogether more serious nature. It is clear that Judge Carter held grave reservations about the mother’s mental health. There is no evidence before me that the mother has done anything to have her mental health properly assessed.
Unlike Judge Carter, I did not have the opportunity in this case to observe the mother in the witness box. I have, however, carefully considered the material she has filed in this matter, including her Amended Response and affidavit. It is difficult to follow the mother’s position on a range of issues, including the mother’s complaints in relation to the current lawyers of the father and her complaints about breaches of confidentiality, specifically, what information was confidential, why it was confidential, or how the father has contravened any obligation of confidence. The mother’s material is discursive, disjointed, difficult to follow and in parts scandalous. The nature of the material gives me cause for concern about her mental health. I do not make these observations lightly and in making them, I have taken into account the fact that the mother is an unrepresented litigant.
There are other aspects of the material filed by the mother that give me cause for concern about the state of her mental health. She claims, for example, to have been proactively excluded from the L School portal. Yet, the reason she has been excluded from the portal in part is because her own material discloses that she has not accepted terms and conditions pertaining to access to the portal. She claims that L School has sought to interfere in the arrangement for payment of private school fees, yet there is no evidence to support that claim of interference.
There is then the mother’s capacity to nurture and build relationships of importance. On the evidence, she has not been able to maintain a close relationship with X and Y. She has not been able to maintain a relationship with her mother with whom she says she has a cause of action against, in circumstances where her mother is prepared to pay private school fees for her children. She clearly bears a grudge towards L School.
There are also concerns I have about the mother’s judgement. In her affidavit, the mother says that she intends to reside overseas in the future, regardless of which schools the children are enrolled in, and that Z should have the opportunity to live with her overseas. She asserts that it would be unfair for this Court to take away that opportunity from her daughter. It is not clear to me how this evidence is relevant to any issue in dispute between these parties. The mother seems not to recognise or accept that the existing orders provide for Z to live with her father, and that she could not remove Z without breaching Court orders. She appears to have given no thought to what it would be like for Z to be separated from her brothers or her father, and what impacts such a move would have on each of Z, Y and X. I note that in the father’s affidavit sworn 23 June 2022, the annexed text message from the mother states ‘As I have previously stated (in writing and verbally) I am not going by Court orders’. The importance of that message is clear. The mother seems not to regard herself as being bound by orders of the Court and seems unlikely to follow orders of the Court.
When all of these matters are considered, I have significant doubts about the mother’s capacity as a parent. I have doubts about her capacity to make decisions in the best interests of the children, including educational decisions which will arise regularly. I have doubts about her capacity to build a working relationship with any school or education provider the children may attend for their benefit. In short, I have significant doubts about her judgement and capacity in a range of areas.
On the issue of parental capacity and responsibility, it is also necessary to consider the capacity of both of these parties to arrive at a joint decision in relation to their children’s education. A critical factor in this case, it seems to me, is the inability of these parties to communicate respectfully with each other and reach agreement about matters to do with their children’s education. The material discloses that these parties have not been able to reach agreement about which schools their children should attend for a considerable period of time. This includes prior disagreements about attendance at L School, and disagreements about where Z is to be enrolled. The material discloses that each parent has changed their position about which school is best for their children over the intervening years. The father has also included material which shows that the mother has sought to prevent Z being enrolled in school, and he gives evidence that Z was only able to be enrolled at U School (notwithstanding the mother’s objections) because U School was the default school given where Z lives. When these matters are considered, I have little doubt in concluding that if parental responsibility for education decisions continues to be shared, these parents will continue to fight about key decisions affecting the education of their children. That may inevitably mean, particularly for Z given her age, more litigation down the track if matters are not resolved now.
I have noted elsewhere the views of the children. It is apparent that X wishes to attend L School. It is apparent that X and Y do not wish to see their mother in person. It is apparent that Z wants to attend L School. I give all the children’s views weight in this case given their ages.
The material before me discloses that each of the parents has taken an active interest in their child’s schooling. Clearly the father wants the children (now) to have what he sees as the benefits of a private school education. The mother has, in her material, considered a range of information about the benefits of L School and T School. That the mother has undertaken such an extensive analysis in my view demonstrates that she wants to participate in making a decision about which school, particularly Z, wishes to attend.
orders
Parental responsibility
In my view, the presumption of equal shared parental responsibility for the education of the children in this case is rebutted. The best interests of the children means that sole parental responsibility for education should be awarded to one parent. The parents effectively conceded as much when each approached the court seeking orders for sole parental responsibility for all or some of the children. A review of the evidence against the best interest considerations set out in the Act confirms that sole parental responsibility for education should be given to the father. The children live with the father for the majority of the time. It is impractical to award the mother sole parental responsibility for the education of the children given the living arrangements that exist between the parties, the fact that X and Y do not spend face to face time with the mother, the fact that X and Y attend L School (which the mother opposes) and Z wishes to attend there, and the practicality of day-to-day schooling. The practicality of the father being given sole parental responsibility for the education of the children is underscored by the fact that these parents are simply unable to communicate and agree on education matters, and that this situation has subsisted it seems for a considerable period of time including by affecting Z’s enrolment in secondary school.
Added to what I have set out above is the fact that I have very serious concerns about the mother’s capacity to make decisions in the best interests of the children. I have serious concerns about her ability to maintain a working relationship with the people she would need to have a working relationship with in order to take responsibility for education matters. What the mother proposes is simply not practical. Nor is it grounded in any reality, for example, there is simply no evidence that the maternal grandmother would support the mother in enrolling Z in T School and there is no evidence that the mother could afford a place for Z at that school herself.
Finally, the mother’s wish to have responsibility for the education of Z and enrol her in T School runs counter to Z’s wishes to attend the school which her brothers attend. The mother’s proposal seems to be oblivious to this fact. The mother also appears oblivious to the fact that making a decision against the wishes of Z may result in her own relationship with Z being undermined.
In respect of education matters more generally, the mother sought an order that L School College provide to her identical access to ‘parent-teacher -student interviews/meetings /correspondence and consent/authorisations for both [children]’. I decline to make any order directed to L School in circumstances where it is not a party to the proceedings and where the evidence is that the mother has refused to accept terms and conditions relating to access to the portal. I will make orders that the father keep the mother informed of all matters pertaining to the attendance of the children at L School, noting his offer to do so in his affidavit. This will include that he send the mother copies of the children’s school reports, and inform her of details of the children’s extracurricular activities at L School, and of their parent teacher interviews, so that she can attend if she wishes.
Neither party sought an order that the parent who is not awarded parental responsibility for education have a right to be consulted about educational matters, prior to a decision being made by the parent who has parental responsibility. Given the way matters unfolded before me, I did not have an opportunity to ask the parties about this. Having seen the material, I am of the view that any requirement to consult would simply lead to further disputation between the parties, to which the children may be exposed or become aware. In the circumstances, I decline to make such order.
Z’s participation in the Sporting Team Championships
The mother sought an order that the father provide to her ‘written proof that the Respondent requested the terms and conditions, or equivalent, relating to the voluntary services the youngest child as a ‘Team Member’ in the Sporting Team Championships 2022’ [sic]. She also sought an order that copies of the terms and conditions be provided to her in any future years in which Z participates as a ‘Team Member’ in the Sporting Team Championships.
The basis of this complaint by the mother, and the order she seeks, seems to be that the father has enrolled or permitted Z to participate as a ‘Team Member’ in the Sporting Team Championships and has not provided the mother with information relating to Z’s participation in this event, including the terms and conditions relevant to Z’s participation in the event. The father has not addressed this matter in his trial material. Given that the father has not addressed that material, I accept the mother’s evidence that she has not been provided with information relating to Z’s participation in the Sporting Team Championships. She should be provided with that information. The orders made by Judge Carter provide for equal shared parental responsibility. The parties will continue to share equal parental responsibility for the children, except for education.
The father should provide the mother with information relating to Z’s participation in the Sporting Team Championships in any future year in which she may participate in that event as a ‘Team Member’. I will make an order to that effect.
Supervision of the maternal grandmother
The mother seeks an order that the father supervise the children’s time with the maternal grandmother and inform the mother of concerning behaviour of the grandmother.
There are at least four matters to note about the order sought by the mother above. First, Judge Carter noted the mother was estranged from her family and did not know how the estrangement occurred. I am in the same position as Judge Carter – I do not know the details of the mother’s estrangement from her family. Second, Judge Carter did not make any order requiring the father to supervise the children’s time with the maternal grandmother following a six-day trial in 2019. Third, there is evidence before the Court that the children (at the very least, X) get along with the grandmother and are comfortable communicating with her. Fourth, the maternal grandmother is paying the fees for X and Y to attend L School, and is prepared to pay private school fees for Z. Fifth and most significantly, there is no evidence that the grandmother poses any risk to the children that would warrant such an order being made.
I observe that the father has attached to his affidavit a document entitled ‘Agreement to restrict contact between children and uncle, uncle’s wife and associates’. The document purports to be an agreement between the father and the mother. The version I have seen is signed by the father. The agreement is to commence on 31 March 2020. A provision within the agreement stipulates that the father may only leave the children with the maternal grandmother on the condition that she [grandmother] promises to prohibit contact between the children, Mr V and any current or future wife of Mr V’s. The mother relies on this agreement.
While I was not addressed on the issues or background relating to this ‘agreement’, a cursory review of it reveals the following. Firstly, the agreement is not signed by the mother. Second, I doubt that the provision which I have referred to above could be enforced. Third, the father says in his evidence that he was effectively coerced into signing this agreement by the mother, and the mother in her material does not contest that account of events.
I decline to make any order that restricts the children’s time with the maternal grandmother. There is nothing before me in the evidence which would warrant the Court making such an order. There is no evidence of any threat that the grandmother may pose to the children which would require supervision.
Orders relating to breach of confidentiality and related matters
The mother sought ‘orders as the Court deems fit regarding multiple very serious breaches of confidential information by the Applicant’. In her material, the mother complains, among other things, about what she alleges to be breaches of confidentiality by various persons including the father. Much of this evidence was difficult to follow. Some of the complaints appear to relate to alleged disclosure by the father to L School (and perhaps) others as to who is responsible for paying the school fees of the children. Other complaints appear to relate to the fact that at one point, the father used a lawyer also used by the maternal grandmother. Yet, other complaints appear to relate to the father’s current lawyers not answering questions the mother feels they should answer so that she can be satisfied as to whether they have a conflict of interest in representing the father.
The mother’s complaints, as I say, are difficult to follow and largely amount to unsupported assertions. The father’s current lawyers are officers of the Court and I would expect them to disclose to the Court if they had a conflict of interest. They have not done so and there is no admissible evidence to suggest that they have breached any of their duties. There does not appear to be any basis for the mother’s complaints that the father has somehow breached confidentiality by disclosing to L School or potentially others who is paying the children’s school fees. In particular, it is not clear to me where any obligation of confidentiality arises, what the source of any obligation of confidence is, or how it has been breached. In the circumstances, I decline to make any order in the terms sought by the mother.
The costs order of 17 February 2022
On 17 February 2022, this Court awarded costs to the father in the sum of $3731. The amount remains unpaid. The father seeks an order that the mother pay the amount within 14 days. The mother seeks that the costs order made on 17 February 2022 be dismissed.
I had the opportunity to ask the mother about this order. She told me she was not in breach of the order because, effectively, it did not specify a date for payment. I accept that the order in the present form does not specify the date by which payment is to be made. The fact remains, however, that it must be paid. The mother did not appeal the orders sought. I have previously noted the mother’s attitude in relation to complying with orders of this Court. In the circumstances, I regard it as appropriate to make an order that the mother pay to the father the amount of the costs order made by the Court on 17 February 2022 within 21 days of the date of this order.
conclusion
I have stepped back to consider the orders made in this case. Regrettably, in this case I am satisfied that it is in the best interests of the children that parental responsibility for education not be shared. I regard it as being in the best interests of the children that the father have responsibility for parental decisions relating to education. Orders will be issued to that effect.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 10 August 2022
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