Hawtin and Hawtin

[2018] FamCA 921

FAMILY COURT OF AUSTRALIA

HAWTIN & HAWTIN [2018] FamCA 921

FAMILY LAW – CHILDREN – PARENTING – interim – application to change the children’s school – insufficient evidence to justify such a change – application refused.    

Family Law Act 1975 (Cth)

APPLICANT: Ms Hawtin

RESPONDENT: Mr Hawtin

INDEPENDENT CHILDREN’S LAWYER: Ms Mistry

FILE NUMBER: CAC 897 of 2017

DATE DELIVERED: 13 November 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 12 November 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Self-representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid, ACT

Orders

1. The Mother’s application to change X’s school is refused.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hawtin & Hawtin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 897 of 2017

Ms Hawtin

Applicant

And

Mr Hawtin

Respondent

REASONS FOR JUDGMENT

Background

1. The Applicant Mother in these proceedings is Ms Hawtin; the Respondent Father is Mr Hawtin. The parties have three children, Y, born in 2005, Z, born in 2008 and X, born in 2010.

2. The Father’s Amended Application in a Case filed 22 August 2018 sought a range of orders relating to the children’s schooling, psychological counselling, time spent with the Father and overseas travel.

3. Orders made 3 September 2018 directed that the parties would rely upon the following material:

   a)For the Father:

   i)Affidavit of Mr Hawtin filed 13 August 2018;

   ii)Affidavit of Mr Hawtin filed 22 August 2018;

   iii)Affidavit of Ms C filed 22 August 2018;

   iv)Affidavit of Mr C filed 22 August 2018; and

   v)Affidavit of Mr B filed 22 August 2018.

   b)For the Mother:

   i)Affidavit of Ms Hawtin filed 20 July 2018.

4. Despite these orders restricting the material that the parties would rely upon, the Father sought to rely on two additional affidavits of himself filed 8 November 2018 and 28 September 2018. This was opposed by the Mother and the Independent Children’s Lawyer (‘ICL’). The Father’s additional material contained matters relevant to the determination of the issue of X’s time in the Father’s household, such as to justify its reception to determine the best interests of X. The consequence was that the Mother was granted an adjournment. 

5. However, the school issue was still able to be dealt with as the fresh material did not substantially go towards that matter.

Orders Sought

1. The parties’ orders sought are extracted at Appendix 1.

2. In short terms the Father sought orders restraining the parties from enrolling Z or X at a school other than the one that they currently attend.  The Mother wishes to change X’s school so that he will attend Suburb D public school.

3. The context is that on 28 August 2017 Orders that were made by consent in the Federal Circuit Court:

   Neither party otherwise change the children’s school without the consent of the other parent or leave of the Court.

4. This Order was subsequently varied in relation to Y but not Z or X.

5. It is notable that the Mother had not sought, by application, a discharge of the Order.  What the Father sought was not necessary because there was already an order in place.  However, the parties’ cases met on this issue and may be dealt with on their merits.

6. While in her affidavit the Mother stressed a financial imperative to the change to a public school, this was not a matter that she pressed or addressed in her submissions (the Father having noted that the Mother currently holds significant cash reserves).  It was not an argument likely to succeed.

7. Rather, the Mother’s case was asserted to be about the benefit to X in a change of school.  She noted the broad education that would be available at the public school, for example, the participation in a gardening program.  She asserts that X has a learning disability (the Father asserts that it is a difficulty rather than a disability).

8. The Mother’s position as to X’s health (but not necessarily as to a change of school) is supported by X’s paediatrician who noted a mild intellectual disability and moderately severe Attention Deficit Hyperactivity Disorder as at 29 March 2018.  The Mother alleges that X does not deal well with change.

9. X has been declined assistance through the Nation Disability Insurance Scheme (‘NDIS’). In reliance upon advice that she received from the NDIS that public schools receive better funding for children with special needs, the Mother expresses a preference for the support that X might receive at Suburb D.

10. The evidence was scant as to any specific benefits to come to X from a change to Suburb D.

11. Against such a change the Father noted a recent class award received by X, the religious instruction that he can receive at the current school that he says was at the request of the Mother, and that he has been able to volunteer at the school.  Further, and importantly, he notes the possibility for additional sibling contact between X and Z at the current school because they both attend that school.  This is in the circumstance that Z and X live primarily in separate households.

12. The ICL submitted that it is preferable to minimise change for X, although if there was better support at Suburb D then it could be in his interests to change.

13. On balance, there are not sufficiently demonstrated or proven matters to justify a discharge of the current orders as being in X’s best interests.  There are strong reasons against such a change of school for him.

14. The restraint will not be discharged.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 13 November 2018.

Associate: 

Date:  13 November 2018

Appendix 1

Father’s Amended Application in a Case filed 22 August 2018

1.That Y (Y), born … 2018, undergo a psychological assessment by attending no less than three (3) psychological counselling sessions so a thorough report can be provided to the Court to determine Y’s:

a.state of mental health,

b.insights for Y’s significant drop in academic performance,

c.insights for Y’s high level of school absenteeism,

d.reasons why Y is refusing all contact with the Respondent, and

e.recommendations as to pathways to reconnect Y with the Respondent.

2.The Applicant will, as already exists for Z (Z), born … 2008, and X, born … 2010:

a.Lodge an application with the Department of Veterans’ Affairs (DVA) for Y for $3,500 in funding for after school tutoring within 7 days of these Orders.

b.Ensure that Y commences and regularly attends weekly after school tutoring within 14 days of DVA approving Y’s tutoring application.

c.Advise the respondent in writing the date Y will commence after school tutoring.

3.The Applicant must ensure Y and X attends school each day and if Y or X is unable to attend school the Applicant is to provide Y’s school and the Respondent with a medical certificate within 48 hours of any such absence. 

4.The Applicant must ensure Y and X are cared for and supervised by an adult for any school day absence.

5.The Applicant shall encourage Y to communicate and meet with the Respondent. 

7.That X shall spend time with the Respondent and Z on alternate weekends from Friday 3pm to 9am Monday commencing 7 September 2018, including during school holidays, commencing within 7 days of these Orders with X’s number of overnight stays per fortnight increasing as per the table below.

Month	Number of Nights Per Fortnight
September 2018	3 nights
October 2018	4 nights
November 2018	5 nights
December 2018	6 nights
January 2019	7 nights

8.That X, whilst in the custody of the Applicant and in lieu of attending After School Care, stay with the Respondent from 3pm to 6pm or until as agreed to by the parties.

9.That Z be allowed to apply for a passport and to travel overseas with the Respondent with all overseas travel itineraries to be provided to the Applicant no less than 14 days prior to any overseas travel.

10. The Applicant reimburse the Respondent half the out of pocket costs for Z’s Court Ordered psychological counselling and psychiatric assessment costs.

11.That given the shared parenting responsibilities, as per Order 2 of Orders dated 6 December 2017, for X:

a.The Applicant shall provide copies of all previous National Disability Insurance Scheme (NDIS) applications, correspondence (e.g. X’s Management Plan) and any third party paperwork (eg specialist reports) pertaining to X and the NDIS to the Respondent within 7 days of these Orders.

b.All future NDIS applications and correspondence from the Applicant must be co-signed by the Respondent prior to being lodged with the National Disability Insurance Agency (NDIA).

c.The Applicant declare in writing all previous NDIS payments paid to the Applicant or to any third party for X to the Respondent within 7 days of these Orders.

d.The Applicant declare all future NDIS payments for X paid to the Applicant or any third party to the Respondent within 7 days of any such payments being made.

12.That the parties are hereby restrained from changing Z and X’s current school, namely E School.  That the next two meetings between the Independent Children’s Lawyer (‘ICL’) and the Children be held whilst Z and X are in the custody of the Respondent.

13.The Applicant undergo a psychiatric assessment to determine the state of her current mental health and capacity to care for Y, Z and/or X.

Father’s Application in a Case filed 13 August 2018

1.That the Respondent Husband be given leave to issue a subpoena to give evidence to Ms F (Principal, E School).