Gray & Hull
[2024] FedCFamC2F 1409
•14 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gray & Hull [2024] FedCFamC2F 1409
File number(s): ADC 2792 of 2024 Judgment of: JUDGE JENKINS Date of judgment: 14 October 2024 Catchwords: FAMILY LAW – PARENTING – Application for review – unilateral removal from school and enrolment at new school – common intention of parties – views of the child – acrimonious co-parenting relationship – best interests of the child – application for review dismissed Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 65D Cases cited: Grella & Jamieson [2017] FamCAFC 21
Re G: Children’s Schooling [2000] FamCA 462
Division: Division 2 Family Law Number of paragraphs: 49 Date of hearing: 20 September 2024 Place: Melbourne via Microsoft Teams Counsel for the Applicant: Mr Praolini Solicitor for the Applicant: Lindbloms Lawyers Counsel for the Respondent: Ms Cocks Solicitor for the Respondent: Lynch Meyer Lawyers ORDERS
ADC 2792 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS GRAY
Applicant
AND: MS HULL
Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
14 OCTOBER 2024
THE COURT ORDERS THAT:
1.The Application for Review filed by Ms Gray on 21 August 2024 be 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS:
This is an application to review orders made by Senior Judicial Registrar Lewis on 16 August 2024.
The matter concerns one child, X born in 2016 (“X”) whose mothers, Ms Gray and Ms Hull, are in dispute about which school he should attend.
In May 2024 Ms Gray unilaterally removed X from his school, B School where he had been attending since 2019 and enrolled him at C School.
As a consequence, Ms Hull issued these proceedings in June 2024.
Following an interim hearing Senior Judicial Registrar Lewis made orders for Ms Gray to immediately re-enrol X at B School. Ms Gray seeks that this order be discharged as well as the order restraining Ms Gray from enrolling X in any other school.
In addition, Ms Gray proposes certain amendments to the time spend orders to account for the additional travel to the school. Ms Hull opposes the court dealing with the time issues as she was only made aware of the proposed orders the day prior to the hearing, however, in practical terms it would be necessary to amend the time if X attends C School because she would not be able to collect X at the conclusion of school.
BRIEF BACKGROUND
The parties commenced their relationship in 2013.
X was born in 2016. Although Ms Hull is not on the birth certificate (as the legislation at the time of X’s birth did not allow for same), there is no dispute that the parties consider Ms Hull to be X’s parent.
When X was two years old the parties made the joint decision to enrol him in the early learning centre at B School as Ms Hull was employed at the school. X began attending B School from 2019.
The parties separated under the one roof in mid-2022. The parties physically separated in January 2023.
After separation, X remained living with Ms Gray and spent time with Ms Hull as arranged with Ms Gray. However, in addition to this, Ms Hull took the opportunity to also spend time with X during school recess and lunch periods, as she worked at B School.
Ms Gray was not happy with this ad hoc contact, which she says was distressing to X, and raised this repeatedly with B School. Ms Gray’s evidence is the school failed to address the issue and that she had no choice but to remove him from the school.
In April 2024 Ms Gray unilaterally ceased time between X and Ms Hull, and in May, Ms Gray enrolled X at C School. Both the school and Ms Hull were made aware of this decision in May 2024.
In mid-2024 Ms Gray moved from her home in Suburb D and obtained a rental in the Region E area, about 15 minutes from the new school, C School.
Ms Hull issued these proceedings in June 2024 and Senior Judicial Registrar Lewis made the orders that are subject to review in August 2024, along with other orders for Ms Hull to spend time with X each Tuesday after school and each Saturday from 10:00am to 4:00pm. After 16 November 2024, the time on Saturday is to extend to 10:00am Sunday.
DOCUMENTS RELIED UPON
Ms Gray relied upon the following documents:
·her response to initiating application filed 5 August 2024;
·her affidavit filed 5 August 2024
·her notice of child abuse, family violence or risk filed 5 August 2024
·her application in a proceeding filed 21 August 2024;
·her affidavit filed 4 September 2024; and
·her outline of case filed 19 September 2024.
Ms Hull relied upon the following documents:
·her initiating application filed 14 June 2024;
·her affidavit filed 14 June 2024;
·her notice of child abuse, family violence or risk filed 14 June 2024;
·the order of Senior Judicial Registrar Lewis dated 16 August 2024;
·the unpublished reason delivered by Senior Judicial Registrar Lewis dated 16 August 2024;
·her affidavit of 21 August 2024;
·her affidavit of 5 September 2024; and
·her outline of case filed 13 September 2024.
The parties also each relied upon various documents in their “tender bundles”. I have only had regard to documents to which I was specifically referred in submissions.
THE LAW
Pursuant to section 60CA of the Family Law Act 1975 (Cth), (“the Act”) the best interests of a child are the paramount consideration for the court when making a parenting order.
Section 65D of the Act directs the court to make such parenting orders as it thinks proper. The court may therefore use its discretion to determine what is "proper". In this regard the Full Court of the Family Court of Australia in Grella & Jamieson [2017] FamCAFC 21 has said at [18]:
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.
Section 60CC(2) of the Act specifies six matters which must be considered in determining what is in the child’s best interests at subsection 60CC(2).
The matters to be considered pursuant to section 60 CC(2) include:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
In contemplating the foresaid matters, the court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child together with any family violence order that current or has previously applied to a child, or a member of the child’s family.
Whilst I have taken each of these matters into consideration, I shall only refer to matters that are relevant to my decision.
In the case of Re G: Children’s Schooling [2000] FamCA 462, the specific factors relevant to determining schools were identified as:
·the views of the child when appropriate;
·any prior agreement in selection of schooling;
·any change to existing arrangements;
·other siblings current and/or future schooling arrangements;
·any anxiety the child may experience as a result of changing peer groups;
·the views of the parties about the effect of the change on the child;
·travel time to school; and
·costs of education.
These factors are not exclusive. Each decision will turn on its own facts and being a parenting order the child’s best interests remain the paramount consideration.
Views of the child
Ms Gray says that X was so distressed at Ms Hull visiting him at school that it ultimately led to his school refusal and Ms Gray’s decision to remove X from B School.
Ms Gray says the court cannot rely on contrary reports from the school counsellor, Ms F, who says X has never told her he is upset by these visits, because she is aligned with Ms Hull.
Indeed, Ms Gray says that all of the staff at the school are “on her side”, referring to Ms Hull, and points to emails with a class teacher in particular which indicates a certain degree of familiarity as well as other correspondence which Ms Gray says evidences preferential treatment of Ms Hull, including by Ms F.
In addition, Ms Gray says she does not feel supported at the school or comfortable engaging with the staff given she says Ms Hull has involved the staff in their personal business.
However, whilst it is likely that Ms Hull does have close friendships with staff at the school, I am not satisfied that the material produced demonstrates preferential treatment of Ms Hull. Indeed, Ms Hull complains at one point about Ms Gray being advised about an issue first rather than the other way around.
Furthermore, Ms Gray appears to have likewise endeavoured to involve Ms F in the dispute, who to her credit appears to have taken a fairly even-handed approach with both parties.
The fact that Ms Gray complains that she was notified by the school of an issue via the school diary whereas Ms Hull received an email, says more about Ms Gray’s level of suspicion than any actual differential in the treatment of the parties.
Furthermore, the school records do not support Ms Gray’s assertion about school refusal. X school attendance was not remarkably different in the years between 2022 and 2024. In 2022, there were 19 absences for the year and in 2023, there were 13.5. Whilst there were 14 absences in semester 1 of 2024, this included seven days in which Ms Gray had removed X from the school but was yet to inform B School. Furthermore, at no stage does Ms Gray appear to raise school refusal with the teachers or Ms F.
The information from the school does however confirm that X was observed to be notably sadder in early 2023 and that he subsequently began attending upon Ms F. As this is an interim hearing, the court is unable to make a finding of fact as to the precise cause or causes of X’s distress at that time however there could be a myriad of reasons, the most of obvious of which is that his parents had just physically separated in January 2023. He was also spending less frequent time with Ms Hull, the parties relationship was completely acrimonious, and adding to this, X experienced the loss of his aunt passing away in that year. Nonetheless, although X re-engaged with Ms F in term 4 of 2023, by April of this year, Ms Gray advised the school, that X no longer needed any additional support. I presume from this that X’s emotional state had substantially improved.
Despite this, Ms Gray maintains that she had no choice but to remove X from the school because of his ongoing distress. Further to this, she says that in contrast to the sadness X was experiencing at B School, he has settled very well into C School. Ms Gray says that X’s demeanour has improved, that he has made friends and transitioned well. However, this is not supported by the observations of the counsellor at C School who reports that as recently as August 2024, X was said to be “sad and angry” and that his teacher was requesting he have further sessions with the school counsellor.
Agreement
It is not in dispute that the parties made a joint decision to educate X at B School from a very young age and that part of the rationale was that because of Ms Hull’s employment, they would receive a discount on the school fees.
Any change to existing arrangements
X has been at C School school for a term and a half. Whilst an order was made for X to return to B School, at the time of the interim hearing in September 2024, Ms Gray had been unable to get X to return to B School.
Nonetheless, X had attended B School from the age of two. He is now eight years of age. In early 2024, Ms Gray expressed her reservations about moving X as he was “very happy” there. In addition, his class teacher reported at the end of 2023:
It has been a pleasure teaching [X] this year. He’s a beautiful boy, and has enjoyed a highly successful year. I am thrilled to have taken part in his educational journey.
X’s school reports from B School show a child who was thriving both academically and socially.
Travel time to the school
At the time of X enrolment in C School, neither of the parties lived or worked near the location of the school. Ms Gray lived in Suburb D which is about 55 minutes to one hour drive to the school. The organisation at which she works, being in Suburb G, is about a 50 minute drive to the school. It was only after the enrolment that Ms Gray moved to live in the Region E area to be close to the school.
Ms Hull lives in Suburb H. Although this is only about half an hour or so from C School by car, because she works nearby it means she would not be able to collect X at the end of the school day. This would necessarily impact on Ms Hull’s ability to have regular involvement with teachers and other incidental school involvement during the school week.
Cost of education
Ms Gray argues that if she lost her job, they may not be able to meet the cost of the school fees at B School although she does not conversely address the loss of the discounted education that X had the benefit of at B School if he attends C School.
DETERMINATION
As this is an interim hearing, I am unable to make findings of fact, however in my view both parties appear to have used B School as a battle ground for their acrimonious relationship breakdown. Each has endeavoured to involve the school and in particular the school counsellor in their own grievances. In doing so, the parties have both placed their own interests above that of X.
Ms Hull put her desire to spend time with X above his need to spend time with his friends away from the conflict of the family breakdown. On the other hand, Ms Gray chose to remove X from the school entirely rather than pursuing other options that could have addressed any issues, and left X with one area of his life where he had stability, consistency, and support. Removing X from that environment ought to have been a last resort. X has now had to start a new school in addition to dealing with his parents separation and their ongoing conflict. Unsurprisingly, X is still reported to be “sad and angry.”
It is of the utmost importance that X be returned to B School, where he had been “very happy” and was thriving. Although this will mean yet a further disruption to X, he has only been at C School for a short period of time. X has spent most of his young life at B School, which would of course, be very familiar to him. In addition, his school reports from B School show he had developed strong relationships at the school and was comfortable reaching out to Ms F when he needed her support.
However, X should be free to spend time with his friends away from the ongoing turmoil that is occurring between his mothers. An injunction has been put in place to prevent Ms Hull from visiting him at school to ensure this is the case.
For all of the aforementioned reasons, I find that the orders made by Senior Judicial Registrar Lewis are in X’s best interests.
Accordingly, Ms Gray’s application for review filed 21 August 2024 will be dismissed.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 14 October 2024
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