H-W and H

[2007] FMCAfam 335

FEDERAL MAGISTRATES COURT OF AUSTRALIA

H-W & H [2007] FMCAfam 335

FAMILY LAW – Rice & Asplund issue – change of school for a child with special needs.

Family Law Act 1975, ss.60B, 60CA, 60CC, 118(1)(c)

King v Finneran [2001] FamCA 344
Rice v Asplund (1979) FLC 90-215
Newling(1987) FLC 91-856
Re G: Children’s Schooling (2002) FLC 93-025

Applicant: H-W

Respondent: H

File number: SYC765 of 2007

Judgment of: Altobelli FM

Hearing date: 14 May 2007

Date of last submission: 14 May 2007

Delivered at: Sydney

Delivered on: 7 June 2007

REPRESENTATION

The Applicant: Self-represented

Solicitor advocate for the Respondent: Mr Pope

Solicitors for the Respondent: Streeter Commercial Lawyers

Solicitor Advocate for the Respondent: Mr Mara

ORDERS

1. The Application filed 6 February 2007 is dismissed.

2. Both parties do all such acts and sign all necessary documents to enrol the Child at C Public School, commencing from day 1 of term 3, 2007.

3. Both parties are restrained from changing the Child’s school enrolment without the written consent of both parties, or an order of the Court.

4. The matter be adjourned to 25 September 2007 at 10.00am for hearing of the Contravention Application filed 6 February 2007, the Contravention Application filed 27 February 2007 and to deal with matters raised in the father’s Response filed 2 March 2007.

5. The respondent file and serve any amended Response and an affidavit in support within 21 days

6. Each party file and serve all affidavits on which they intend to rely at hearing by no later than 4.00pm on 4 September 2007. No further affidavits to be filed after that date without leave of this Court.

7. Costs are reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC765 of 2007

H-W

Applicant

And

H

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. These reasons for judgment explain the orders that I have made in this particular part of this litigation.  When the matter came before me for hearing on 14 May 2007, it was intended that the following issues be heard and determined:

   a)A Rice & Asplund[1] issue raised by the respondent father in the context of the applicant mother's application filed 6 February 2007 to vary orders made by consent on 12 October 2006.

   b)The respondent father's application for an order under s.118(1)(c) Family Law Act preventing the applicant wife from instituting further proceedings.

   c)The issue of where the child of the relationship M is to go to school, such issue being raised by both the applicant mother and the respondent father.

   d)The applicant mother's contravention application filed 6 February 2007.

   [1] (1979) FLC 90-215

2. At the commencement of the matter, and without opposition from either of the parties, or the independent children's lawyer, I determined that the Rice v Asplund[2] issue, and the schooling issue would be dealt with first. As it turned out, the entire day was devoted to this issue. The remaining issues have been set down for hearing on 25 September 2007. On the application of Mr Pope, representing the respondent father, I will deal with the s.118(1)(c) application after I have dealt with the remaining issues. I acknowledge that, at the commencement of the proceedings, I was somewhat sceptical about whether I should deal with the s.118 issue at all, and I voiced that scepticism. Mr Pope, quite correctly, persisted with the application in this regard, and as the evidence unfolded I began to understand why.

   [2] (1979) FLC 90-215

3. The mother's application to vary the parenting orders made by consent on 12 October 2006 arises out of a number of concerns she has relating to the parenting of M which warrant, in her submission, revisiting the question of where M lives, and how much time she spends with each parent.  The details of the mother's concerns in this regard are set out below.  The respondent father's objections to reconsidering these issues are that there are no circumstances which would require the Court to consider afresh how the welfare of M should be best served.

4. The question of M's schooling is a very important one for both parents.  The mother prefers that M continues to attend N School, where M has attended since kindergarten in 2004.  The father prefers that M attend C Public School.  This aspect of the matter initially came before me on

   
   

   9 February 2007, when I made orders that the parents do all things necessary to enrol M at N School, and that both parents were restrained from changing her school enrolment without consent orders or an order of this Court. 

5. It is common ground between the parents that M is a child with special needs.  She suffered brain damage as a baby.  Amongst other things, M suffers from a language skills deficiency.  Over the years, a specialised program has been developed and implemented to assist her in her schooling.  The support personnel include a speech pathologist from W Hospital, a case worker from the brain injury unit at W Hospital, a neurophysiologist from W Hospital, the Learning Support Team, the district integration support teacher, and the support teacher, and the support teacher for learning disabilities attached to N School one day per week.  This team has been involved with M's schooling since she enrolled in kindergarten.

6. By way of further background, M was born on 26 February 1998, her parents separated on 1 November 2000, and there has been litigation between M's parents, relating to her, in one form or another, since at least November 2000.  Even a cursory review of this litigation creates the impression of almost intractable conflict.  There have been allegations of violence, sexual abuse, neglect, abduction, threats of suicide, as well as inadequate parenting.  In some respects the consent orders made on 12 October 2006 represented (or were meant to represent) the culmination of the litigation between the parents.  A final hearing was set down before the Family Court of Australia in Sydney for five days, commencing on 9 October 2006.  The orders made on 12 October 2006 were made by consent, and basically provided for a reversal of the shared care arrangements that previously existed.  The orders provide for M to live with her mother for five out of 14 days each fortnight, and with her father for the rest of the time.  It is those orders that the mother now seeks to revisit.

7. At the hearing of this matter before me the applicant mother represented herself.  The respondent father was represented by Mr Pope.  The independent children's lawyer was represented by Mr Mara.

Applicable law

1. The rule in Rice v Asplund (1979) FLC 90-215 is well established. Its effect is that, before varying existing orders, the Court should be satisfied that there are circumstances which require the Court to consider afresh how the welfare of children should best be served. Collier J, in King v Finneran [2001] FamCA 344, said:

   The rule in Rice & Asplund is a rule evolved to protect children from involvement in further unnecessary litigation.

2. I need to consider whether the new material before the Court makes it necessary, and in the interests of M, to allow further proceedings in relation to her. I need to consider not just the importance of the issues raised, but their seriousness, and their potential impact on M. The best interests of the child remain the paramount consideration and thus I continue to be guided by ss.60B, 60CA and 60CC of the Family Law Act. The Full Court of the Family Court, in Newling (1987) FLC 91-856, has indicated that there is no fixed minimum period in which a question of changed circumstances cannot be reconsidered by the Court. The passage of time is but one consideration, though in some cases it might be a weighty one.

3. The question of a child's schooling was considered by the Full Court of the Family Court of Australia in Re G: Children's Schooling (2000) FLC 93-025. It is quite apparent that a decision about where a child is to go to school is one that is made by reference to what is in the child's best interests. However, the Full Court made the following observations at paragraph 92 of its reasons:

   92.    In addition, we think there is considerable substance to arguments on her behalf that weight should be given to the travel commitments associated with the school that the children attend. Where a decision must be made by a Court in circumstances where parents are unable to agree as between two schools which are prima facie very satisfactory, we see advantages to the children attending a school which is closer to the children’s residence.  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 responsibility can meet the multiple associated demands of children’s dependence on a caregiver for transport, participation and security. We do not consider that the fact of a prior agreement between the parties as to [School A] carries much weight in the changed circumstances of the family.

4. Obviously, the question of M's special needs also needs to be taken into account in the context of deciding which school is best for her. 

Issues and findings

M’s schooling

1. I propose to deal with the issue of M's school first.  It is not an issue in respect of which the Rice & Asplund argument applies.  This is because the consent orders made 12 October 2006 left the issue open.  In this regard, Orders 18 and 19 of those consent orders state:

   18. That the Father ensure that M continue to attend N Primary School until the end of 2006.

   19. That the Father give the Mother written notice of any school that he proposes M to attend in 2007 if it is not N  Primary School, and that he not enrol M in any school without the Mother’s written consent provided that such consent is not unreasonably held.

2. The parents were not able to reach agreement about where M was to attend school in 2007.  To put it simply, the mother preferred that she remain at N School, but the father proposed that M be at some other school and in particular C Primary School.  Their inability to resolve this issue led to the quite remarkable situation where M simply was not sent to school for the first two weeks of first term 2007.  Indeed, it took the orders made by me on 9 February 2007 to precipitate that happening.  It is not relevant, in my opinion, to consider the precise facts and circumstances and reasons why M was not sent to school at all, for two weeks, because her parents could not resolve where she goes to school.  As I indicated to the parents on 9 February 2007, their behaviour was most disappointing and certainly not child-focused.  Without in any way trying to justify the behaviour of either parent, it is apparent that they have been involved in intense conflict about M for most of her life, and that has clearly impaired their ability to focus on what is best for her, from time to time.

3. The applicant mother's arguments and evidence in relation to the schooling issue started from the proposition that, despite all the conflict surrounding M, and the change of care arrangements relating to her, her school has been her one constant source of stability since 2004.  If M moved to C Primary School, to use the words of the mother, "she would have to start from scratch", she would need to make new friends, meet new teachers, and probably receive a level of support for her special needs that would not be equivalent to that she receives at N School.  The mother acknowledged that she too was concerned about the amount of travel that M undertakes in getting to school from her father's house at C.  She asserted that the journey from the father's house to N School took 45 minutes each way.  She strenuously contested the father's evidence that the journey took 90 minutes each way.  It was common ground that, because M spent more time with her father, her father was undertaking significantly more of the school‑related travel than the mother.  I took the mother's submission to be that, whilst the amount of travel time for M was an issue, the benefits to her of remaining at N School outweighed any disadvantage.  I formed the impression from the mother's submissions, and her evidence, that she really thought the solution to M's travel to school issue was for M to live with her.  That, of course, is a separate issue.

4. In relation to the quality of special care that could be provided to M at C Primary School, the mother was very critical of the fact that C could not offer the one-on-one support provided to M at N Public School, by way of a teacher's aide six hours per week.  The mother asserted that at C she would only be receiving five hours per week and it would be in a group setting, not one on one.  Despite the benefits to M which the mother perceives she gets from N School, part of the evidence adduced by the mother herself in this case indicates that M was absent from school for 45 days in 2004, 44 days in 2005 and 23 days in 2006.  For a considerable part of this period, it should be noted, M was in the mother's care, although she spent time with her father.

5. The father's case that M should attend C Public School, emphasised the benefits to her in reduced travel, the greater employment prospects that he would have as a result of this, and his belief that the special care that could be provided by C was comparable to that provided by N Public School.  In his evidence the father expressed concern about the inadequacy of the measures and programs implemented at N School to assist M with her learning difficulties.  He further expressed concerns in his evidence about M being the victim of bullying at N, although the mother's evidence was that this was a problem that had occurred in the past and in respect of which appropriate intervention had been undertaken.  In the father's evidence, he also expresses concerns about whether M's school reports correctly reflect the progress that she is making.  Indeed, at one point he asserted that M's report for year 1 was falsified to reflect a higher level of achievement than was in fact the case.  He also refers to statements from M's medical advisers, to the effect that she is not doing as well as she should be, the context of these statements linking this to her schooling.  From the father's perspective, M would receive at least the same level of special care, and possibly more at C.  The father was concerned about the impact of the travel on M.  His evidence was that it took 90 minutes each way.  I note that this is double what the mother estimates the journey time to be.

6. I am satisfied that, from the totality of the evidence produced primarily by the father, but also to a certain extent by the mother, C Public School would provide M with a level of special care and support that is at least comparable to that which she receives at N School.  The correspondence from Mr L, the principal of C School, satisfies me that M will be placed in a year 3 class that has a teacher's aide support allocated to the class for approximately one hour per day, in which M would work in a small group.  I am satisfied that she would also receive additional support in a small group with a learning support teacher to assist with literacy. 

7. Whilst I accept that M has been at N  Public School since 2004, and that it provides a source of stability and comfort to her, she would find similar support and comfort at a new school, in time.  Any upheaval to her would be more than offset by the benefits to her of spending far less time each day travelling to and from school.  I accept the father's evidence, not challenged by the mother, that the travelling time from the father's house to C Primary School is about five minutes.  I do not accept the father's evidence that it takes 90 minutes to travel from his home to N School each way.  I am unable to make a finding about precisely how much time it does take but, even on the mother's case, it is 45 minutes each way.  For a child of M's age, and particularly having regard to her special needs, spending 90 minutes a day travelling to and from school is an unnecessary burden and stress and imposes fetters on her ability to do other things, both before and after school.  In this regard, the orders of 12 October 2006 provide that M spends time with her mother from after school on Wednesday to before school on Monday.  In other words, at the moment, the mother undertakes responsibility for six out of the possible 20 journeys to and from school each fortnight, with the father undertaking the other 14. On the mother's own evidence, M is currently spending 630 minutes each fortnight travelling to and from school from her father's home.  However, on the father's proposal, and based on the order I now intend to make, M would only be spending 270 minutes each fortnight travelling to and from school from her mother's home.

8. In a case like this where I find that the special care that can be provided to M at C Public School is at least comparable to that provided at N School, the amount of time that she spends travelling to and from school becomes a significant factor pointing towards the selection of C Public School as the one which will better coincide with M's best interests.  I observe that travel commitments were an important consideration considered by the Full Court in Re G: Children's Schooling[3].

   [3] (2002) FLC 93-025

9. I note in this regard that Mr Mara, representing the independent children's lawyer, frankly acknowledged in his closing submissions that, even though the independent children's lawyer has been a long supporter of N School, M's declining academic performance, together with her poor record of attendance, and the absence of evidence indicating that N Public School provides that much better a standard of support for M, as compared to C Public School, so as to justify the additional travel, all points to C Public School being the best one for M.  I accept the independent children's lawyer's submission in this regard. 

10. The independent children's lawyer also submitted to me that self‑interest motivated both parents insofar as their application related to where M goes to school.  Whilst I acknowledge that the parents have been engaged in a high level of conflict for most of M's life, I am satisfied that, insofar as their application related to where M goes to school, their joint primary concern was ensuring that she received the appropriate standard of support, having regard to her special needs.  Ranking after that consideration, however, was the question of travel.  As indicated above, this consideration favours M spending less time travelling, rather than more.  I acknowledge that, in a high‑conflict case such as this one, maintaining stability for M is important, but even that needs to be seen in context and offset against the benefits of more time each day to do other things.

Rice & Asplund issue

1. The next issue is the Rice & Asplund issue.  In this regard, the mother's evidence and submissions focused on what she alleged to be the father's breaches of the orders (the subject of the two contravention applications); the conflict over the schooling which resulted in M not going to school for the first two weeks of first term; the continuing conflict between the mother, her father, and the father, which included the involvement of police; concerns about the appropriateness of M's accommodation at the paternal grandmother's house, where she resides with her father; unexplained absences from school during the last four days of term 4, 2006; the mother's changed circumstances, in that she is now pregnant and expects to be a stay-at-home mother once her child is born; a general dissatisfaction with the standard of parenting provided to M by her father, as evidenced by improper school uniform; the father misleading the Court about his employment, concerns about the adequacy of the after-school care provided to M by other members of the father's family; and concerns about things that M had been saying to the mother that the mother was convinced the father had instructed her to say.  All of these matters were referred to either in the affidavits filed by the mother in these proceedings, or in her submissions or evidence before me. 

1. In the mother's cross‑examination it became apparent that the consent orders were entered into in either day three or four of the hearing.  The mother frankly admitted in cross‑examination that her counsel had told her that if she did not agree to the consent orders she might not get as much time with M as was being offered in the settlement.  She says she felt pressured.  When it was put to her by Mr Mara, for the independent children's lawyer, that all of the concerns expressed by the mother were known to her before the consent orders were entered into, rather than denying this, the mother restated that she felt pressured into entering into the orders; that she had been advised by the independent children's lawyer that he was going to side with the father; and that her own counsel indicated he thought she would only get three days, rather than the five days on offer.  She emphasised that she was the primary carer up until that time.  When Mr Mara asked the mother whether re‑litigating the issue was the only way to bring these concerns of the mother's to a head, the mother emphasised that she would rather a judge make a decision than come to an agreement with the father, as "I can live with that".  She stressed that the October orders were ones she had consented to, but the father had breached. Her unresponsive, evasive evidence leads me to infer that she could not plausibly deny that which was being asserted.

2. Out of all the concerns raised by the mother in her evidence and submissions such as to warrant a reconsideration of the parenting arrangements relating to M, other than the issue of schooling, which really is a separate issue, there is no basis for them. There is simply no compelling or even near-compelling evidence that warrants a reconsideration of this case.  M's best interests are first and foremost in my mind in making this decision.  If I allow the mother to revisit the substantive issue of where M lives and how much time she spends with each parent, M is exposed to at least another 12 months, possibly more, of high‑level conflict involving her parents.  Quite apart from that, M would, no doubt, have ongoing communication with her independent children's lawyer and would, no doubt, again consult an expert under Part 15 of the Family Law Rules. 

3. M has been the subject of high‑level conflict between her parents for most of her life.  I have to ask myself:  Is further litigation really necessary?  Nothing that has been raised by the mother convinces me that it is.  The schooling issue is resolved by the current proceeding and certainly does not warrant revisiting the orders made 12 October 2006.  The fact that contravention proceedings have been initiated by the mother alleging breaches of various orders (relating to schooling, telephone communication and consultation) certainly does not warrant revisiting the substantive issue.  In this regard, at no stage has the mother alleged that the father has impeded in any way the actual periods of time that M spends with her mother.  The allegations of M's behaviour, and comments, were not the subject of cogent evidence, could probably be explained by this child being caught up in the intractable conflict of her parents, but would not, in any case, warrant reopening the case and exposing her to further litigation.  The allegations about the circumstances occurring in the grandmother's home are disputed by the father but, in any event, would not go anywhere near crossing the threshold, even if I were to find them true.  Her concerns about the ongoing conflict between the father and herself certainly provide no warrant for re‑litigating the issue.  Even if the mother's pregnancy were not foreseeable at the time she entered into the consent orders, it is simply not a matter that would justify revisiting this issue. 

4. At no point in the mother's evidence does she satisfy me that there are circumstances which require me to consider afresh how the welfare of M should best be served.  Indeed, quite to the contrary - the ongoing conflict between these parents satisfies me that all further litigation needs to be strictly focused on resolving the issues at hand and not being allowed to be used as the key to unnecessarily reopen issues.

Application of the law to the facts

1. Having regard to the matters set out above, it is, in my respectful, opinion, the inescapable conclusion that it is not in M's best interests for her mother to be allowed to re‑litigate the same issues that were settled by consent orders made on 12 October 2006, a mere four months before the mother filed her application on 6 February 2007 seeking an order that M live with her.  Accordingly, I dismiss that application.

2. In relation to the schooling issue, I am satisfied that, having regard to the matters set out above and the findings I have made, it is in M's best interests that she attend C Public School.  In order to minimise disruption to her, that should not take place until the commencement of term three, and I urge both the mother and the father to undertake all efforts, cooperatively, to ensure that the said school is ready to provide the standard of care that M will need. 

Conclusion

1. The child M was born on 26 February 1998.  She is now 10 years old.  Before she turned three, her parents started to litigate in relation to her.  For over 70 per cent of her life her parents have been arguing and litigating in relation to her.  In their own way, I am sure they deeply love M, but their distrust of each other and ill‑feeling towards each other does not present them in a good light.  Both of them gave evidence which clearly indicated that they have involved M, directly or indirectly, in this litigation.  They should be ashamed of that.  M is a very special girl, who has special needs and who needs both of her parents.  She needs them to stop fighting over her and to put her needs above their own.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Associate:  Lisa Molloy

Date:  6 June 2007