H and H
[2007] FMCAfam 1042
•11 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| H & H | [2007] FMCAfam 1042 |
| FAMILY LAW – Child's schooling – competing proposals of parents – application of principles in Re G: Children’s Schooling [2000] FamCA 462. |
| Family Law Act 1975, s. 60CC(2),(3),(4) |
| Re G: Children’s Schooling [2000] FamCA 462 |
| Applicant: | H |
| Respondent: | H |
| File Number: | SYC 4129 of 2007 |
| Judgment of: | Pascoe CFM |
| Hearing date: | 3 December 2007 |
| Date of Last Submission: | 3 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 11 December 2007 |
REPRESENTATION
| Applicant in person: | Mr H |
| Counsel for the Respondent: | Ms Druitt |
| Solicitors for the Respondent: | Bull Son and Schmidt |
ORDERS
That the parties do all things necessary to cause the child J, born 1999, to be enrolled at and to attend O, to commence in 2008.
That unless otherwise arranged between the parties, the mother, collect J from R Shops each Sunday evening that J spends time with the father.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4129 of 2007
| H |
Applicant
And
| H |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the father for orders concerning J’s schooling arrangements for 2008.
Background
The parties’ separated in November 2000 and divorced in October 2002. J was the only child of the marriage. In March 2003, parenting orders concerning J were made by the Family Court of Australia.
The father worked as a builder until he became a paraplegic in September 2003. He is presently confined to a wheelchair and on a disability pension. The mother, earns approximately $96,000, per annum. She receives child support of $417.00 per annum.
J currently attends N. N is an X school, which caters to children from Kindergarten to Year 12. J is presently in Year 2. He commenced at N at the beginning of 2005. Although it was originally the mother’s choice to send J to N, she has become disappointed with the educational program offered at N and notes that J has had bouts of unhappiness while being at the school. She wishes to send J to O School.
The father seeks orders that J continue his education at N, or, in the alternative, that J attend R School. I note that the alternative submission was only recently canvassed by the father so as to take into account the financial burden on the mother of continuing to send J to N.
The father was self-represented at trial. I was mindful of this fact, and provided him every opportunity to put his case forward. At trial, the father gave reasons for his preference that J attend R. He stated that were J to attend this school, the father would be able to be more significantly involved with the school. The father opposes J’s move to O on the grounds that the extra distance from his home makes it harder for him to spend time with J. The father also believes that if J is at O, then his son will not be able to fully participate and feel part of the school and local community.
The mother was represented at trial. Counsel for the mother submitted that the dislocation involved in sending J to R would not serve J’s best interests. The mother’s reasons for preferring O may be summarised as follows:
(a)The mother’s research indicates that J would benefit from the educational experience offered at O. O is a larger school than N, and offers streamed classes. It offers transition programs for students entering the school and fosters the ethos of the X churches. Whilst not a major factor, this does signify some continuity with N, which may assist J’s transition. O does not involve compulsory sport on the weekends;
(b)The school fees at O are considerably less than those at N and thus a more affordable alternative for her;
(c)The mother proposes to move within closer proximity to O; namely within the T neighbourhood. This would give J the benefit of being closer to his school, and with closer contact to maternal grandparents who will live with them.
(d)J’s preference to attend O.
Principles to be followed
The decision of the Full Court in Re G: Children’s Schooling [2000] FamCA 462 sets out principles to be applied when there is a dispute between parties as to a child’s schooling.
There is no legal presumption that the wishes of the parent with whom the child lives should be preferred, but the fact that the child resides predominantly with one parent is not irrelevant;
The object and principles set out in the Family Law Act 1975 (Cth) (‘the Act’) are to be taken into account. The best interests of the child remains the paramount consideration.
The best interests of the child are to be determined by an examination of the ‘primary considerations’ under s.60CC(2) of the Act, and the ‘additional’ considerations under s.60CC(3) and s.60CC(4).
Analysis of the arguments
The available evidence before me was limited to the affidavit material (including annexures) of both parties. However, both parties also had every opportunity to present their case to the Court at the hearing and to respond to the submissions and arguments of the other.
I am satisfied that the mother’s decision to remove J from N has been made after careful consideration and with due regard to J’s best interests. It would seem that she has made a thorough and proper investigation as to which school would best meet J’s needs. This is evidenced by her affidavit filed 14 August 2007, which outlines quite extensively her concerns about N and her research into O.
The mother’s decision to change J’s school has also been motivated by financial considerations. The mother is the sole financial supporter of J. The burden of school fees is thus carried entirely by her. It is unreasonable, in these circumstances, to expect the mother to continue to a crippling financial responsibility. At this stage, she only receives token child support payments from the father.
The father, in his affidavit of 8 June 2007, outlines fairly extensively his opinion as to the benefits of N school. It is his contention that J has done academically well at this school, and is well settled. The benefits of R were not explored in this affidavit, but were set out in the father’s most recent affidavit, which was only deposed on 29 November 2007.
The alternative school proposed by the father, R, seems to reflect a decision made relatively recently. At the hearing, the father stressed that travel convenience and the capacity to make J feel part of a community were the main reasons why R was a preferred school to send J to.
I now turn to the relevant considerations under the Act. I do not propose to canvass each of them in detail.
A primary consideration to which I must have regard pursuant to s.60CC(2)(a) is the benefit to the child of having a meaningful relationship with both the child’s parents. I do not believe that changing J’s present school will affect the capacity for either parent to maintain such a relationship. The additional 6 km (approximately) that the father will have to travel to pick up and collect J on the days he has contact with him should not substantially affect the ability of the father to maintain relations with J. The mother has offered to collect J from R Shops each Sunday evening on the weekends when J spends time with the father. This will alleviate one fortnightly journey for the father.
Weekend sport is not compulsory at O. This means that there is no potential incursion on the time J spends with either parent as a result of school sport commitments.
I also have had regard to the views of the child pursuant to s.60(3)(a). There was little evidence put to me at trial on this issue. There is however, affidavit evidence from the mother that J has experienced periods of unhappiness at N. In the mother’s affidavit, filed 14 August 2007, there is some evidence of J welcoming the change to O. I note that he has visited the school, and is said to have been happy. During the course of hearing, the father suggested that J may have been ‘coached’ into making such comments. He offered no evidence to support this contention. There was no evidence before me regarding J’s view of R. The Full Court in Re G: Children’s Schooling held that while regard should be had to the wishes of children, this factor is of less significance with respect to the issue of schooling, than with whom the child should live. In this regard it is also noted that J is of a relatively young age, and may lack some insight into what school would best suit him. He does seem, however, to have not been happy at N and both parents have had (albeit, different) concerns about the school. Given these factors, the weight I am giving to the views of the child in this particular case is minimal.
The likely affect of any change in circumstances on J is another factor to which I have had regard under s.60CC(3)(d). The mother, in her affidavit evidence and in her letter to the father dated 18 April 2007, states that O provides a transition program for all new students and that the school has advised her that J’s transition to O would not be detrimental to J. I have paid attention to the fact that N and O both adopt an X ethos. R does not. It is reasonably likely that R may be a greater shift for J than O.
Another factor of relevance in this case is the circumstances of both parents. As a result of his disability, the father is limited physically and financially. I acknowledge that travelling poses a burden for him, not just in terms of mobility, but in terms of petrol and car related expenses. The father is living, in effect, on overdraft. However, the father is doing everything within his capabilities to provide the best standard of care for J. I note that he has purchased a guitar for J and that he went on a holiday with J to B. It is important that no significant additional burden is placed on the father.
I also acknowledge the financial burdens on the mother. She is a working mother and the sole financial supporter of J. She is also the primary carer. Moreover, I acknowledge that the mother proposes to relocate to T, which would place her in close proximity to O. The ease of travel for the mother will benefit J as it is the mother with whom J normally lives. In Re: G Children’s Schooling, the Full Court stated:
‘In terms of the practical fulfilment of parenting obligations, it is desirable to enhance the ease with which a parent who assumes the bulk of day to day responsibility can meet the multiple associated demands of children’s dependence on a caregiver for transport, participation and security.’
The proposed move to T by the mother in 2008 will enable J to have closer interaction with his maternal grandparents, who it is expected will live with J and the mother. The capacity for children to have involvement with significant others is a principle underlying the Act.
Conclusions
There is no doubt that J is loved by both his parents. Mother and father have done their upmost to ensure that J is appropriately cared for and looked after.
I acknowledge that were J to attend R, it would be easier for the father to collect and pick him up on each Wednesday, and every alternative Friday afternoon. However, the reality is that J spends the bulk of the week with his mother who delivers and collects J from school most days. R would be most inconvenient for her – in fact much more inconvenient than N. The school J attends will not disrupt the holiday contact the father has with J, nor will it adversely impact the Father’s Sunday evenings, as the mother has agreed to pick J up from R shops.
Balancing the relevant factors under the Act, with paramount focus on the best interests of J, I have come to the conclusion that he should attend O. There is every reason to believe that J will, in time, feel part of the school community. Furthermore, the shift is likely to cause the least disruption to J’s life especially when compared with a move to R.
The move to O reduces a significant burden on the mother, facilitates the purchase of a home for J and the mother with the maternal grandparents; and minimises travel time on most days. Inconvenience to the father is comparatively minimal, especially as the mother will collect J from R on Sunday afternoons. Thus J’s relationship with the father, which is clearly important to both of them, is not, in my opinion, diminished as a result of the change of school.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Pascoe CFM
Associate: M. Azzopardi
Date: 10 December 2007
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