Hackley & Taggett (No 2)
[2021] FCCA 849
•25 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Hackley & Taggett (No 2) [2021] FCCA 849
File number: MLC 11534 of 2020 Judgment of: JUDGE O'SHANNESSY Date of judgment: 25 March 2021 Catchwords: FAMILY LAW – Interim parenting – schooling – home schooling – competing arguments around child’s schooling – whether child should be home schooled – whether child should repeat year 6 Legislation: Family Law Act 1975 (Cth) Cases cited: Licata & Buxton [2019] FCCA 3181 Number of paragraphs: 41 Date of hearing: 25 March 2021 Place: Melbourne Solicitor for the Applicant: Ms R Oldham of Cathleen Corridon & Associates Counsel for the Respondent: Mr A Chislett Solicitor for the Respondent: No solicitor on the record Solicitor for the Independent Children's Lawyer: Ms B Crocker of Pearsons Lawyers ORDERS
MLC 11534 of 2020 BETWEEN: MS HACKLEY
Applicant
AND: MR TAGGETT
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
25 MARCH 2021
THE COURT ORDERS THAT:
1.The parents do all acts and thing to cause the child, X born in 2009 (the child), to continue with home school while repeating year 6 and getting ready for year 7 at H School.
2.The parents do all acts and things to cause the child to be enrolled in any H School transition programs and events.
3.The parents are directed to bring these Orders (including Notation A as to equal shared parental responsibility) to the attention of all and any therapist of the child and any school the child attends.
4.The Independent Children's Lawyer is requested to confer with the parties as to whether and how family therapy can be commenced for the child's benefit.
5.Pursuant to section 62G(2) of the Family Law Act 1975, the parties and the child, X born in 2009, attend upon a Family Consultant nominated by the Regional Coordinator of Child Dispute Services of the Federal Circuit Court of Australia (Melbourne Registry) for the purposes of the preparation of a Family Report to be given to the Court by 23 November 2021 AND THAT:
(a)The Family Report address the matters relevant to ss.60CC, 61DA and 65DAA of the Family Law Act 1975 and any other matters that the Family Consultant considers important to the welfare or best interests of the child.
(b)The parties comply with all reasonable directions of the Family Consultant.
(c)The Family Consultant have leave to inspect the subpoenaed material produced to the Court.
6.Leave is granted to each of the parties and the Independent Children's Lawyer to provide a copy of the Family Report to a convener of any legal dispute resolution conference.
7.The proceedings be adjourned to 21 February 2022 at 10:00am for Final Hearing (with an estimated hearing time of 3 days) at the Federal Circuit Court of Australia at Melbourne.
8.The matter may be listed for a compliance mention by telephone approximately 2 weeks prior to the final hearing in the event that the compliance email check that the parties will be sent is not completed or if a party requests such compliance mention.
9.The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.
10.The Applicant file and serve any Amended Application and a trial affidavit and, if relevant, an updated Financial Statement, upon which she seeks to rely by no later than 56 days prior to the Final Hearing.
11.The Respondent file and serve any Amended Response and a trial affidavit and, if relevant, an updated Financial Statement, upon which he seeks to rely by no later than 42 days prior to the Final Hearing.
12.The Independent Children's Lawyer file and serve any material on which she seeks to rely by no later than 28 days prior to the Final Hearing.
13.Each of the parties be at liberty to file a short affidavit in reply by no later than 21 days prior to Final Hearing.
14.The parties be at liberty to rely upon any affidavit material previously filed in these proceedings and merely file an updating affidavit, provided that written notice is given to the other party at the same time as required for filing a trial affidavit provided above.
15.For in person final hearings, parties are directed to have multiple copies of the documents they seek to tender and have multiple copies of documents available to witnesses.
16.Each party file and serve a case outline by no later than 7 days prior to trial and provide a copy in Word format to: associate.judgeo'[email protected].
AND THE COURT NOTES THAT:
A.The Family Court of Australia (Justice Cronin) Orders of 16 January 2012 provide that the Father and Mother have equal shared parental responsibility for the child.
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
D.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.
E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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 under the pseudonym Hackley & Taggett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTJUDGE O’SHANNESSY
These are the settled ex tempore reasons I delivered on 25 March 2021.
The dispute I have today in an interim defended list containing six matters in total concerns the education of the parents' child, X (‘the child’), who is 12 years old. He turned 12 in 2021. The question I must today determine is whether or not the child should repeat grade 6 by home schooling with his mother or immediately commence year 7 at secondary school.
The child lives with his mother, Ms Hackley (‘the Mother’), who is 53 years old, and her occupation is a public servant which, as I understand it, had previously been commonly known and described as a public servant, although the position may be wider now than what that position traditionally was. The child’s father, Mr Taggett (‘the Father’), is a tradesman and is 38 years old.
The parties never resided together or cohabited as man and wife in a de facto marriage or legal marriage relationship, but they spent some time together. That was an acrimonious relationship. The relationship would appear to have ceased in March 2011 and there were proceedings in regard to the child's kindergarten before a senior registrar of the Family Court of Australia and later contested proceedings before Cronin J in 2012. The child was very young at the time of those proceedings.
This is the second decision I have made in this family and I will refer to and repeat significant parts of the first judgment that I made in this matter on 22 February 2021 but I will not repeat them here, but they will be included in the settled reasons. I take into account all of Division 1 of Part VII of the Family Law Act 1975 (Cth) (‘the Act’) where I am required to, in making a parenting order concerning the child to take into account the child’s best interests as the paramount consideration.
The educational dispute between the parties is unusual. There is not really a dispute between the parents as to the secondary school that the child will ultimately attend. It is clear that H School, a suburban, state-funded secondary school in Melbourne, has good support structures for a child with autism spectrum diagnosis. The child has been diagnosed with that diagnosis. The recent history in regard to the educational dispute would appear to be as follows.
In late 2019 there was considerable correspondence between the parties as to which secondary school the child should attend. At that time, he was attending a local Catholic primary school, he was then in grade 5 and he had been attending that school since prep. It is the Father's case that he and his current partner had attended all parent-teacher interviews and were involved in the educational aspect of the child's life. I note that the Father has re-partnered and has two children with his current partner, hence, the child has two siblings.
By reason of the breakdown of the relationship between the child and his Father and the circumstances of the Children's Court proceedings, to which I referred in the last judgment, and the impact upon the child protection investigation of the child's welfare upon the respective families, the child is unable to have any time with his Father or his siblings. I should note that this family has had the benefit of a child-inclusive conference and memorandum that I had previously ordered. That memorandum is dated 24 February 2021 and it notes that the Department of Families, Fairness and Housing (‘the Department’) has received eight reports relating to the child between 2012 and 2021.
Each of the parents allege that the other party has untreated or undiagnosed mental health issues. I will set out what the parties said or are reported to have said in the section 11F counsellor family consultant report at paragraph [25] and [26].
[25]Mr Taggett reported that his mental health is “fine” and he does not have a mental health diagnosis and is not on any mental health medication. Mr Taggett said he has not engaged with a counsellor and has not followed up with the DFFH recommendation he completes an anger management program.
[26]Mr Taggett said that he does have concerns for Ms Hackley’s mental health as he was aware she had been diagnosed with “anxiety”. He gave an example that the Kindergarten X had attended reported she could struggle to pick up “…X” and that she had told them she was tearful most days.
The family consultant observed correctly at paragraph 48 of her report that the child is vulnerable due to his diagnosis of autism spectrum disorder and his parents hold differing views on how he should be supported. It is my view that the dispute between his parents on how he should be supported adds to his vulnerability, notwithstanding that, tragically by each parent advancing what they see as the child's best interests, they think they are helping his vulnerability, but in fact that dynamic makes him more vulnerable.
It should also be noted that the family consultant reported at paragraph [44] as follows:
[44]The disrupted relationship between X, Mr Taggett and his siblings is likely to negatively impact his emotionally wellbeing and development.
The family consultant also observed at [45]:
[45]The level of acrimony between the parties is such that it appears the parties are unable to separate their own emotional issues and needs from X’s.
The family consultant observed at [57]:
[57]Spend time arrangements to be reserved at this time due to Mr Taggett not articulating what spend time with arrangements he is seeking, and that his partner does not want X to attend the family home. However, consideration to be given that any resumption of spend time arrangements is supported by X and Mr Taggett engaging in family therapy in the first instance.
I infer and understand the position taken by the Father's partner results from the impact upon that family of the child protection investigation.
The child protection investigation has some curiosities about it. It is the position of the Department that, as I understand it that the child has some significant immaturities relative to peers of his age. Notwithstanding that immaturity the circumstances of the parental relationships that the child will have and will mark the rest of his life should be determined by the child because he is over the age of 10 years old. That only needs to be contemplated for a short period of time to see that there must either be significant unstated qualifications to that position or it cannot be correct.
I observed at [29] of my 25 February 2021 reasons as follows:
[29]There is no doubt that while it may appear child focussed for the children to be able to determine their time with a parent, needing to do so firmly places them in the middle ground of parental conflict and can be an emotional burden. The concept is further made more difficult in this child's circumstances when, on the evidence, it is said he is intellectually and emotionally not ready for year 7 and indeed, the treating psychologist observes that the child:
“Does not have the maturity to deal with the more mature social interactions and nuances that will occur in such a setting at this time.”
Hence it cannot be correct that a child would determine his or her parental relationships, particularly if it was unsafe for the child to have contact with a parent, or if the child's wishes were influenced or aligned with a parent and that alignment was not be in his or her best interests.
The dispute today comes down to whether the child should remain being home schooled by his Mother before progressing to year 7 in 2022 at the agreed school. The dynamics of that or chronology of that schooling matter is that there appears to have been an amount of consultation between the parents as to which particular Catholic or private secondary school the child should attend in 2021. Sensibly, the parents were turning their minds to this way back in 2019. There was some controversy between them as to which was the first choice and which was the second choice of school. That controversy is now small beer compared to the controversies that have befallen the parties since that time.
Hence, we can say that in late 2019 when the child was in grade 5, his parents agreed that he would transition to a Catholic primary school for year 7 in 2021. The agreement that he would transition to a Catholic secondary school for year 7 in 2021 was revisited during the 2020 year and by the latter part of 2020, although I am not sure of the precise date, the parents had changed their position to agree that the child would be educated in year 7 commencing in 2021 at H School.
During 2020, because of the COVID-19 catastrophe that befell the world, the child was not being schooled for the bulk of that year at school, but rather by distance education and, predominantly, in his Mother's home and by his Mother. It is clear that as at August 2020 there was on foot an agreement that the child would attend H School in 2021 and the Father alleges, and it is not contested, that in September 2020 the child's Mother made the necessary enrolments for that to occur.
However, on 20 October 2020, and it is likely that there was some discussion of this beforehand (but not including the Father), an occupational therapist who had previously been involved with the child and face to face in the 2019 year, but not since January 2020, opined in writing (and the document is in evidence in the Mother's affidavit as -2 of the 23 February 2021 affidavit) and recommended that the child continued to be home schooled by the Mother, allowing the child to repeat grade 6 at home and set out some reasons.
It is now clear enough that the occupational therapist's opinion as to the circumstances of the school, which included that he could not repeat grade 6 at his existing school, can only have come entirely from information from the Mother. On 26 October 2020 the child’s treating psychologist, Ms F, also set out a report addressed “to whom it may concern” that made recommendations to a similar effect to the occupational therapist. The other event that occurred close to that time and, in fact, in between those two reports was that the Mother commenced these proceedings in which she seeks sole parental responsibility for the child.
In those proceedings, and I set out paragraph 20 of the Mother's affidavit filed 20 October 2020, the Mother set out the significant support that she said to the school that the child attended was providing to him in the context of his autism spectrum disorder.
[20]That X is enrolled at B School in Grade 6 and is currently engaged in remote learning. I am a public servant and employed at the Employer G and I have been able to combine my work and supervision of X’s schooling during the Covid-19 pandemic restrictions. Throughout remote learning, X has had two additional support sessions per day from the school via video call and the school has been most supportive of him. Further, X’s workload is constantly monitored by the school. I maintain frequent contact with his teachers and X is subject to a personalised learning plan and behaviour support plan.
It is unfortunate and remarkable that somehow, despite Children's Court proceedings being on foot as described in the earlier judgment, that those reports were not provided to the Father, who held equal shared parental responsibility, at all by the Mother or by the occupational therapist or the treating psychologist. I have already noted the strong statements that the treating psychologist has made about her opinion about the Father's future involvement in the child's life at [24] of my 25 February 2021 reasons.
In the Children's Court proceedings, those reports were provided to the Father in November 2020 by the child protection worker involved with the family. The Father was, hence, on notice from November 2020, notwithstanding that he had just read in the Mother's affidavit how supportive the existing school was, that there was trouble looming. It is not clear to me the extent to which he appreciated the educational trouble that was looming.
The state school transition day for state schools, it is common ground, was 8 December 2020. The Mother has told me today, and I accept what she told me when I asked her some matters with her solicitor's agreement, that the transition day had been advised as not likely to proceed because of the COVID-19 lockdown that Victoria was in. Then, at the last minute, and no doubt as a result of the success of the Victorian lockdown, the transition date was put back in place. It was the Mother’s position that it had been her intention that the transition for the child to secondary school would not be a one-off day of attendance on 8 December, but would be over a period, frequently, of many months so that the child would become familiar with the school well before the formal day and that that was interrupted by the COVID-19 pandemic.
The next communication between the parties seems to have been on 7 January 2020 which is set out below:
Hi Mr Taggett,
I heard from X’s caseworker, Ms J, that she has spoken with you about the recommendations for X this year.
I know X is enrolled at H School, but things have changed since that decision was made, and it is not recommended by both X’s treating professionals that he not progress to year 7 this year. He is simply not ready. Pushing him on to high school would be detrimental and cause him much unnecessary anxiety and distress.
After taking all possible avenues into consideration, they also recommend the best option for X this year is for him to continue to study from home as that worked well for him last year. Repeating at B School would open him up to more bullying, and going to a different school for just one year would be too difficult and traumatic for him. X has also made it clear that he would like to study from home. An added benefit will that the O.T. will be able to see him as often as needed, as that day’s study could simply be arranged around her visit.
Having been advised the above, I have done a lot of research into the various home schooling programs available, and have found one that I believe would be a good fit. Importantly, the program is recognised by the Department of Education in every State of Australia, as it covers the full curriculum. Furthermore, it is set by teachers, so it would be similar to remote learning.
Initially, I was concerned about socialisation, but have actually found there are a lot of homeschool social groups, as well as excursions and activities which homeschoolers are invited to. X has already made friends with a boy who he met via one of these groups during remote learning last year.
Obviously, it would be more convenient for me to continue to work, but this is not about me. I am prepared to do whatever is best for X, and am willing to stay home for him to be able to continue to study in this way.
Please give this your careful consideration, as we need to do what is best for X.
Regards,
Ms Hackley.
I note the Mother was relying on a caseworker to inform the Father about events as to the child’s schooling. But she expressly advised him:
“I know X is enrolled at H School, but things have changed since that decision was made and it is now recommended by both of X's treating professionals that he not progress to year 7 this year. He is simply not ready.”
The unfortunate part was that until the caseworker had provided the Father with the psychologist's report, he did not even know about that therapy. At paragraph [11] of the Mother's affidavit filed 22 October 2020 she said:
[11]That X was diagnosed with High Functioning Autism Spectrum Disorder (“ASD”) I July 2017 by paediatrician Dr D. The Father has not accepted the diagnosis and I seek Orders from this Honourable Court that if he is to spend time with X in the future, he undergo some appropriate parental education in relation to dealing with children with such a diagnosis. Dr D advised me to arrange for a psychologist and occupational therapist to consult with X on an ongoing basis and I did so without advising the Father because in the past he had cancelled or disallowed help from professionals. Further, the Father has not adhered to the recommendations of the professionals X engages with, about which I will depose further later in this my Affidavit.
It remains difficult to see how he could have not adhered to recommendations that he did not know about. In any event, it is now clear that the child has missed the transitional arrangements. It is the Father's case as set out at paragraph [28] of his affidavit filed 1 February 2021:
[28]I received an email from Ms Hackley on 7th of January 2021, outlining her ideas for X for his schooling this year. I replied that I did not agree at all with her views. She has however implemented her position so X has missed the very important social interactions with new students on the first days of school.
I assume X will miss the school transition camp which is held prior to this court case which is an enormous help in students bonding. It seems it is Ms Hackley’s idea that isolating X is good for him and has deliberately stopped X from social development opportunities, ignoring my views and the views of his previous teacher.
It is worthwhile to note how the school assessed the child and that is helpfully set out in his end of grade 6 report at page 24 of 40 of the affidavit of the Father filed 1 February 2021 and notwithstanding that the child has autism spectrum disorder, that report is quite contrary to the observations of Ms F in particular and consistent with the Mother's observations in regard to the school at paragraph 20 of her affidavit referred to earlier, that is, how the school has been most supportive of him.
When the matter was before me in February, I appointed an Independent Children's Lawyer and at short notice Ms Crocker has come on board and I am indebted to her for that work. The Father's position is simply that notwithstanding the part of the school year that is missed, notwithstanding the transition process that has been missed, that the child should forthwith start at H School and, in particular, relies upon the school's observations at paragraph [24]:
[24]The second semester school report refers to X returning to school during term 4. It states that home schooling during term 3 was challenging for X, particularly relating to his social and emotional needs. It acknowledges that upon returning to school in term 4 X was fortunate to have the friendship of some lovely students who have supported him through the social situation he has faced. It also acknowledged that X is resilient and is learning the social skills and strategies to help him deal with day to day social interactions.
I note the observations of the school also appear to be discordant with the observations of consistent and persistent bullying that was referred to by the psychologist. I again note that it appears to be common ground that the psychologist had never spoken to the school, nor was the school aware of the concerns that the psychologist had in regard to the child’s education. The Mother's position is that the child was not ready for school and that she is supported in this by the observations of the child’s therapists.
I told the parties that ordinarily I would place enormous weight on an interim hearing on the opinion of a treating psychologist, particularly one that had been involved with the child over a lengthy period of time. The nature of the treating psychologist's report and the recommendations and opinions that are expressed, that appear to have been based upon what the Mother has told her, notwithstanding that those matters are entirely discordant with the Mother's sworn opinion that the school was supportive of the child, have troubled me as to the weight that would be given to those reports on an interim hearing.
I was assisted by the Independent Children's Lawyer's submissions, particularly in regard to the weight to be given to the report. It is the Independent Children's Lawyer's position that the child should continue home schooling with his mother this year and that the opinions and observations about the school, to which I have referred, are, and to quote Ms Crocker, “a different kettle of fish” to the observations about the child’s maturity and readiness for school. Ms Crocker makes the point that I should place weight upon the actual observations of the child’s maturity and readiness for school, notwithstanding that the therapist makes other comments critical of the school and the Father where I cannot determine what the basis for that was.
In this matter I do place some weight upon the psychologist’s opinion and the occupational therapists opinion that the child has an immaturity for his age and was not ready for year 7. I am assisted by Ms Crocker's submissions that she is concerned that to immerse the child in the chosen secondary school at this point in time without the transition period runs a real risk of setting the child up to fail. The other risk that Ms Crocker recognised and grasped is the lack of socialisation for the child solely in the home of his Mother without contact with his Father's household and his siblings and without contact with colleagues at school.
I note that the Mother's case is that the students referred to as “the lovely students who have assisted X at his current school” will not be attending, and are not attending, the chosen state secondary school. It was Ms Crocker's position that the least worst option for the child, balancing risk, is that he continue the home schooling, before transitioning to the secondary school. I am concerned at the way and the manner in which this came about. However, this is an interim hearing and my concerns should not be taken for findings as a final matter of fact adversely to one or other party.
I am concerned, and it was ultimately not disputed by Mr Chislett, that the transition from primary school to secondary school for the child would be very significant and very important relative to other peers, in the circumstances of his autism spectrum disorder and the observations of the school.
Information below is in regards to the joint request from Ms Hackley and Mr Taggett and relevant representatives of both in relation to X’s readiness to begin year 7 in 2021 in a Secondary School both, from an academic and emotional perspective.
X attended B School from Prep through to Year 6, finishing in 2020.
In relation to X’s readiness the following information is provided by his teachers, leaders and relevant staff at B School.
X in general displays a mixed effort and was consistently supplied with adjustments and amendments throughout his time to support him both academically in classroom situations and during social situations both in the classroom and in the playground. The adjustments impacted his work levels at times and required more guidance at times in regards to his actions, behaviour and work output.
When X applied himself and worked with the appropriate adjustments he delivered good results indicating his obvious academic capabilities. It has been continually noted that he has at times made efforts to engage more in classroom and group discussions, but prefers and thrives more in his own company.
During 2020 X was able to complete most of his remote learning tasks with support from family and school. The home/school collaboration resulted in very good work being submitted by X.
It was apparent to us that remote learning was also a challenge for X, so looking after his social and emotional needs are of paramount importance and identified as such. Daily break times supported X during both remote learning and during his learning at school.
Regular meetings were arranged for X to talk to his teachers, student wellbeing leader and other leaders in the school to support X’s significant emotional needs. X is continuing to learn appropriate social skill strategies and with ongoing support he can benefit from such strategies.
X does find the emotional side of school challenging as well as social interactions with other students. He would benefit from support and guidance with regards to social development as well as support in interactions with peers.
We were able to implement a number of professional recommendations over the years for X’s academic and social development. We were unable to have both parents meet together to correlate the adjustments and recommendations put in place at school and the consistency of this implementation at his Mum and Dad’s houses.
We as a school were not consulted in the preparation and report with regards to X’s preparedness for education in 2021 conducted by his Clinical Psychologist. We have concerns that the report has very limited input from the range of people involved in X’s school life, family life and professional supports.
With the appropriate support and significant adjustments particularly in relation to emotional and social needs X would benefit from a school environment as well as the extra professional support that a High School could provide coupled with private support that X’s parents already have in place.
Ultimately, the parents have put this in my hands and I am concerned that the child's emotional development or emotional preparedness for school in year 7 at a new school with a new bunch of peers is as good as it can be. I am not concerned that the child would not have been ready academically; in fact, Mr Chislett and the Father have persuaded me that the child academically is doing quite well but I am concerned whether he would be emotionally ready. The Mother's plan for a gradual introduction of the child to the school over many months and weeks appears to me to be a good one and, hence, for all of those reasons, I intend to give the parents the chance to get and, in particular, the Mother the chance to get that together.
I take into account by way of precedent, the decision of Licata & Buxton [2019] FCCA 3181, a decision of Judge Kelly.
[109]The parents’ interests in securing an arrangement that is convenient for them is a matter that is appropriate to take into account: Eden & Eden-Proust.[22] This is because, while the interests of the child are required to be the paramount consideration, s 60CA does not provide that those interests are the sole consideration: AMS v AIF;[23] Eden & Eden-Proust.[24] It follows that some regard should be had to the relative inconvenience to each of the parents with respect to matters such as any necessary transport arrangements: Eden & Eden-Proust.[25]
[110]For example, in Low & Chapman,[26] Monahan J observed that to enrol a child at a school which was located at a place mid-point between the parties’ residences was perhaps ‘an obvious option’ where the parties live some distance apart. I did not understand His Honour to be suggesting any more than that such an option may be an obvious point for consideration alongside any other suitable options.
[111]While it will ordinarily be of importance to consider the effect on the resident parent, this does not mean that the convenience of the non-resident parent is ignored: Bilz & Breugelman.[27] Again, it may be added that the distinction between a resident and non-resident parent becomes diluted where the parties have agreed upon a week about parenting arrangement, particularly one that has been on foot and to which the parties have adhered to for some years.
[112]The views of the children may be a relevant but usually not a determinative consideration: s 60CC(3)(a) Bilz & Breugelman;[28] Re G.[29] The child’s views on schooling may be of lesser weight if the child is of a young age: Stevens & McLaren.[30]
[113]The process of evaluating competing school proposals should not entail an assessment of the relative merits of the schools preferred by the parties, at least in circumstances where those schools are prima facie satisfactory: Bilz & Breugelman.[31] The location of the school to the children’s residence remains an important factor: Re G.[32]
[114]The court may be assisted in the resolution of a schooling dispute by the opinions of an expert: Stevens & McLaren.[33] By s 60CD(2) the court may ‘inform itself of views expressed by a child’ by a number of means, including a report given to the court by a family consultant under s 62G(2) or, subject to the Rules of Court, ‘by such other means as the court thinks appropriate’: Bondelmonte.[34]
[115]Competing views have been expressed as to the relevance of the parties’ agreement as to how schooling should be implemented. In Eden & Eden-Proust,[35] Thackray J indicated that the existence of an agreement between parties would be an important factor. In Re G,[36] the parties’ prior agreement on the issue was held not to carry much weight.
I take all of those matters into account, including that ultimately in the tragic circumstances of the child's life at the moment, whether it be for good or poor reason, he is entirely dependent upon his Mother to get him to school and to educate him. She seeks the burden of an additional year of grade 6 and the burden of doing that from home schooling and in all those circumstances, I find that that is in the child's best interests.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 29 April 2021
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