Hewett & Emery
[2022] FedCFamC2F 953
Federal Circuit and Family Court of Australia
(DIVISION 2)
Hewett & Emery [2022] FedCFamC2F 953
File number: DGC 2823 of 2017 Judgment of: JUDGE O'SHANNESSY Date of judgment: 8 February 2022 Catchwords: FAMILY LAW – orders as to where children attend school – interim parenting orders - dispute about private school fees. Legislation: Evidence Act1995 (Cth) s 144
Family Law Act 1975 (Cth) ss 60CA, 60CC, 64B, 65DAA, 69ZL
Cases cited: Eden & Eden-Proust [2011] FamCAFC 138
Goode & Goode (2006) FLC 93-286
Licata & Buxton [2019] FCCA 3181
Love & Henderson (1996) FLC 92-653
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re G: Children's Schooling (2000) FLC 93-025
Rice & Asplund (1979) FLC 90-725
Division: Division 2 Family Law Number of paragraphs: 62 Date of hearing: 8 February 2022 Place: Melbourne Counsel for the Applicant: Ms S. Mariole Solicitor for the Applicant: Leslie Family Law Counsel for the Respondent: Ms T. Border Solicitor for the Respondent: Macedon Ranges Family Law ORDERS
DGC 2823 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HEWETT
Applicant
AND: MS EMERY
Respondent
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
8 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The parties do all acts and things and sign all necessary documents to maintain the children’s enrolment at B School (“the school”) at their equal and shared expense and for that purpose:
(a)Within 14 days, the respondent (“father”) shall pay direct to the school the outstanding school fees in relation to the children’s enrolment and attendance at the school in 2021 ($280 as at 8 February 2022);
(b)Until further order, the applicant (“mother”) and father shall pay all school fees in equal shares as and when they are due and payable and IT IS REQUESTED that the school invoice each of the mother and father separately to facilitate such payment;
(c)Until further order, the mother and father shall pay in equal shares the cost of each of the children’s ‘book lists’ with:
(i)The mother to pay the cost at first instance and provide to the father the receipt indicating such payment; and
(ii)The father to reimburse the mother by electronic transfer to an account of her nomination within 7 days of receiving receipts for having purchased items on each of the children’s ‘book list’.
2.Until further order, each party be restrained by injunction from making application to Services Australia for a change of their child support assessment based on the ground of meeting the costs of the children’s enrolment and attendance at the school in compliance with this order.
3.The mother’s application in a proceeding filed 2 December 2021 be dismissed.
Procedural:
4.The matter be adjourned to 16 June 2022 at TIME for Interim Defended Hearing for the purpose of addressing Rice & Asplund at the Federal Circuit and Family Court of Australia.
5.The parties be at liberty to apply on short notice via email to the Chambers of Judge O’Shannessy prior to the Rice & Asplund Interim Defended Hearing.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 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.
B.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.
C.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.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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).
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 by this Court under a pseudonym Hewett & Emery has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTJUDGE O’SHANNESSY
These are short reasons pursuant to section 69ZL of the Family Law Act 1975 (Cth) (“the Act”), being an ex tempore judgment concerning the issue of where the children should go to school next week when they recover from COVID-19.
Background
The Father is 39 years old and a transport worker by occupation, and the Mother is 40 years old. The parties commenced cohabitation in 2006. They were married in 2010 and then their children were born in 2012 (“child 1”), 2013 (“child 2”) and 2015 (“child 3”). The parties separated in May 2016.
There are extant final orders in the matter made on 8 August 2018. A short summary of the that decision is the parents have equal shared parental responsibility with the children living in a shared care arrangement. The children currently spend what can be described as the full weekend on an alternate weekend basis from after school Friday until before school Monday plus from after school Monday until before school on the following Monday. That is what can be described as a four plus one arrangement, plus half of the school holidays.
Those orders are silent as to the children's C School though at the time child 1 attended C School. I was told and accept that on 27 November 2019 the Mother made application to the Child Support Agency for a change of child support relating to the expense of school fees. On the same day the Mother proposed to the Father that there should be a change of the school in regard to school costs.
The current proceedings
The Father commenced proceedings on 3 May 2021 whereby he seeks to change the shared care arrangement to an equal shared care arrangement. Rather than having four nights per fortnight he seeks seven nights per fortnight plus half of the school holidays. In addition to that, the Father has issued two contravention applications and at least one of those is now listed to be heard on 25 February 2022 before Judge O'Sullivan. Upon the finding or dismissal of a contravention application the Court has wide powers to vary court orders.
The child support proceedings were determined, I understand, in about the middle of 2021. That child support review determined that there should not be a change of assessment based on the expense of school fees. It was common ground before me that the school fees for the three children at C School, being the local private Catholic school reasonably proximate to where the Mother lives and not too far from where the Father lives, had annual school fees in the order of approximately $3000.
It is common ground that the local state school, D School, also proximate to where the Mother lives and a further distance from where the Father lives, would have school fees or charges of something in the order of $2000. The Father's position in the child support review was that he had never consented to the choice of C School, and he complains that that school had been unilaterally chosen by the Mother or announced to him at the start of child 1’s school year as a fait accompli.
The Father deposed in the affidavit in support of the application filed in May 2021 that it was his position that the family could not afford the expense of private school fees:
76. The significant costs of the children's schooling was discussed between [the Mother] and I, via lawyers and mediation during our previous proceedings. My position was then, and remains, that private schooling for the children is unaffordable for our families in the current circumstances, on the information I have about [the Mother’s] income and what I know about my income.
77. I would be happy for the children to attend a local public school.
It is the Father's position that he has now reviewed with some care the relative expense between C School and D School for the three children and found that the difference overall is only some $2000 per annum and that the total fees for the children is around about $59 per week over a 52-week year.
The Father says that his position was always that he was not opposed to contributing to school fees, which is pointed out by the Mother's counsel as being inconsistent with the position of saying that the family couldn't afford it. However, the Father's position in regard to the school fee issue is before me and has been, for at least some little time, that he sought that school fees should be prepared on a proper basis, proportionate to the parties' income.
The Father’s position is that he pays child support as assessed, he is up to date and he is not in arrears. That child support is, as I understand it, common ground that it is $52 a week or $10,452 per annum. Child support is ordinarily expected to cover at least some parts, if not all, of a child's ordinary educational expenses, but not necessarily private school expenses. The Father’s position was that he could determine or negotiate what would be the proper share of school fees to be paid when he had the information in regard to the Mother's financial position: assets, liabilities and, most significantly, income.
Demonstrating that he was prepared to describe the otherwise private aspects of his financial circumstances, he filed a financial statement in response to the Mother's application. The Mother has not provided any financial information in the documents that she has filed and served, but this day when pressed by me she told me that her income was approximately $40,000 per annum, she works from home, she has a baby who is only months old, she is currently on unpaid maternity leave and that her current partner earned some $60,000 as a self-employed tradesman. The Mother was resolute in not providing financial information about her position, notwithstanding that she relied upon the fees issue as a matter that went to the change of school.
The Father's position ultimately by January, when filing a response, was that the Mother should pay the arrears of the school fees which are, according to the father and a letter from C School, merely $280 or as open to me from the mother, some $1140. The Father's position was then that he should pay the first term's school fees for the three children and that the Mother should pay the further fees, or they should be negotiated and worked out between them with the benefit of the further very detailed financial information the Father sought.
Before me today, orders for disclosure of the very detailed financial information that the Father sought was not pressed and in discussion only, without making a ruling on it, I described the detail of what the Father pressed for in the face of no information whatsoever as “over the top”. Paragraph 44 of the Father's affidavit from 13 January 2022 contains the below:
44.I have provided detailed financial information to [the Mother], including 12 months of bank statements, three years of tax returns, payslips and my employment contract to demonstrate my financial position. I have requested [the Mother’s] financial information in return but she has refused to provide it. It is impossible to know our reflective capacities to properly contribute to the children’s education without that information.
The Mother's counsel points to what is said to be contradictions within the Father's position. The Father's position also was disclosed in correspondence and, indeed, in his affidavit that he was not in principle opposed to a change in the children's school. Dealing with that contradiction, it was the Father's counsel's submission that the Father's preparedness to change the children's school related to what he saw as a significant burden of private school fees. It was common ground that at all material times the Mother has paid all school fees, uniforms and books.
It was submitted that upon careful investigation and reflection and when working out that the difference between the annual school fees between the state C School and the local Catholic school was in the order of $2000 per annum for the three children, the Father's position changed. The Father now supports that the children remain and continue at the existing school. The Mother, having pressed for a contribution to the children's school fees, now seeks to change the children's school to a state school.
I spent some time examining the dynamics in terms of distance by reference to what was once an everyday resource but is largely now spurned in favour of electronic means, and that is the Melways, and I have relied upon that pursuant to section 144 of the Evidence Act1995 (Cth) without quarrel from any counsel. The current position is that the Mother lives merely a few minutes from the C School and that D School is of some roughly equivalent travelling time for her. To travel to C School would be travelling upon a major highway. To travel to D School would be to travel in the opposite direction, up over some mountainous terrain and down into a pretty valley. From the Mother's point of view, the travel is roughly the same. From the Father's point of view, whilst not as close to his existing home as the Mother's home, C School is not impractical and, further, is more or less on the way, with a little bit of wriggling around, to head broadly north and then east to his place of work.
The Father is a highly qualified transport worker and must work from his employer’s depot, unsurprisingly. He starts at 5 am, finishes early, and is available to pick up the children from school. Starting at that time, he requires his partner to assist him by delivering the children to school on the Monday morning in week 1 and Tuesday morning in the other week. His partner must then travel by train to where she works in the city. It was put on behalf of the Father that D School is simply impractical for he and his partner. The sharing of the children's school life by the drop off and pick up is said, by his counsel, to be an important aspect of the Father's involvement in the children's lives.
The Mother, on the other hand, works from home and hence, the convenience of travelling, dropping off at C School and then moving on to work does not have significant weight, and further, her partner, being a self-employed tradesman, would be working all over the place and not necessarily in any particular direction.
The school that the Mother chooses is not the closest state school to her home. There is another state school which the Mother regards as inferior to D School, albeit very close to her and with significantly less impractical travelling impacts for the Father. The long and the short of that is that the Mother says, based solely on the amenity of the school, D School is preferable despite being the opposite direction for the travel of the Father and/or his partner for the pick-up and the delivery vis-à-vis their home and place of work.
The Mother puts her case for a change of school on this interim matter firstly on the basis of the expense of the school fees, and secondly on the need to assist child 1 with what she sees as difficulties at C School. The Mother claims that her primary motivation is to assist child 1 in regard to child 1's reporting of bullying from teachers and students and of inappropriate treatment and disciplining by teachers at C School, particularly in regard to toileting, which the Mother considers as having substance. The Mother's affidavit has some actual statements by the child but is largely her opinion about what has befallen child 1 at the school.
All the children have been at C School for the whole of their school education. Child 1 is in grade 5, Child 2 is in grade 3 and child 3 has just finished prep and is going into grade 1. The school reports of each of those children include the below:
[Child 1] is a determined and passionate leaner, who thinks deeply and strives to improve in all areas. Her compassion for marginalised people is reflected in her strong opinions in class discussions, particularly in Religion, and in her advocacy for social justice in the world. For example, recently, she spoke to the class about the unfairness of racism and the importance of cultural inclusion. Socially, [child 1] is beginning to develop a greater sense of responsibility for her own words and actions and she is becoming more aware of the perspective of others. She is making conscious efforts to allow others greater opportunities to speak during discussions and is developing marked improvements towards this end. When she supports, adds to, or respectfully disagrees with the opinions of her peers, she shows that she is learning to value their contributions and perspectives.
As a learner, [child 1] is increasingly able to reflect on her academic growth, and to formulate personal goals to improve her skills. In Maths sessions she participates well, both in small groups and individually, to build her 'number sense' and mental computation skills. [Child 1] has shown that she can increasingly use logic when solving problems. She is learning to persist in the face of challenges and to 'have a go' herself, before requesting help, as well as to accept constructive feedback from teachers. This shift towards a 'growth mindset' is having a positive effect on how she sees herself as a learner. [Child 1] knows the importance of staying focused during lessons, and this is an area she continues to work on as she sometimes allows herself to become distracted by her own thoughts rather than staying focused on the relevant topic. She is gradually becoming a more independent problem-solver, who is more conscious of the benefits of self-reliance. [Child 1] is also developing her awareness of the needs of those around her, and is continuing to work on managing her reactions during conflicts, identifying whether a problem is of 'small', 'medium' or 'large' significance.
[Child 1], thank you for being such a dynamic member of our class. You really challenge us all to think deeply about so many issues. Continue to believe in yourself, respect the opinions of others, and to stand up for what is fair. We know you will continue to work hard in Year 5 and beyond. We will miss you!
…
[Child 2] is a friendly, happy student who has responded enthusiastically to learning throughout the year. He has developed more confidence in his ability as a learner. [Child 2] has shown determination and persistence in the areas of reading and number work. There have many moments when [child 2] has been proud to share his accomplishments. When doing so he beams with pride which has been so exciting to see.
[Child 2] has continued to participate fully in class discussions and contributes on a regular basis. He makes wonderful connections to topics and respectfully offers his opinions to his peers.
[Child 2] demonstrated enormous patience and resilience when he injured his arm this year. Despite this obstacle he continued to work as independently as he could and never once complained. This resilience was also noted during onsite remote learning where [child 2] worked enthusiastically alongside other year 1/2 students and was . always so welcoming to the children from other classes.
It has been a pleasure teaching [child 2] this year and I wish him all the best for 2022.
…
[Child 3] has shown a strong, genuine interest in learning throughout his Prep year and has continued to form some strong friendships with his peers. [Child 2] is always willing to contribute to whole class discussion and with adult support he is able to remember to respond appropriately by putting his hand up and listening to others by using the whole body listening strategy. During Remote Learning [child 2] managed well and demonstrated flexibility around having a variety of teachers and varying routines. During this time he continued to grow and demonstrate a passion for writing which was wonderfu1 to see. On the return of his peers in Term 4 he has successfully re-established himself into the routine of Prep. [Child 3] is able to start tasks independently and when reminded he is slowing his writing down to focus on letter formation and writing on the lines correctly and is even starting to edit his work by rereading what he has written. [Child 3] can still be reluctant at first to take on teacher feedback though is beginning to be more open to taking on a challenge or explaining his thinking with a positive mindset, this has been evident in both reading and maths groups. [Child 3] enjoys working with like minded learners and is able to stay on task for a sustained period of time. When asked [child 3] is often willing to help others and is beginning to show more patience when working with peers who are learning at a different level. [Child 3] has continued to widen his friendship circle both in the classroom and on the playground and is seen to be including more of his peers in his game. When faced with conflict or a challenging situation [child 3] can find it challenging to reflect on how his actions can impact others though with adult support he is beginning to do this and move on from these situations in a quicker and more positive manner. [Child 3] has continued to demonstrate leadership qualities within our classroom and enjoys taking on extra responsibilities such as our Ipad helper, task leader and completing jobs outside the classroom such as taking the lunch orders or office-box. Congratulations to [child 3] on a wonderful year and wishing him every success as he continues his education into 2022.
The school report does not reflect the criticisms that the Mother makes of child 1’s peers or of the C School and the manner in which it dealt with the students. Of course, the Mother's position essentially would be that the school is remaining positive, knowing full well the Mother was dissatisfied with how they dealt with her representations on behalf of child 1 to the school regarding what she sees as child 1’s difficulties.
The Father, on the other hand, sees the matter as very different. In his affidavit, he sets out the below passage in regard to child 1 what the current circumstance is, including the history of those difficulties:
34. [Child 1] is achieving at or above the expected level in every aspect of her schooling. The teacher comments reflect that [child 1] has had difficulty in the past in relation to some social areas, including respecting the perspective of others, not allowing others to speak during discussions, being distracted in class and issues with self-reflection and conflict management. The comments also indicate improvement in all of these areas. In my view, based on my knowledge of [child 1’s] personality and my direct discussions with [child 1] and the school, I believe this is a fair assessment of [child 1’s] history and progress. I have no concerns about [child 1’s] schooling.
35. I am concerned that [the Mother] has strongly focused on what she perceives to be issues that [child 1] has experienced and seeks to change the school of all three children. Firstly, I do not accept that there are any systemic or ongoing bullying issues that [child 1] is experiencing. Secondly, there does not appear to be any reason to remove [child 2] or [child 3] from an environment where they are doing well even if [child 1] was experiencing the issues alleged.
The issues
This is an interim hearing and brought on in the circumstances of some emergency. The Mother issued the current application in a case on 1 December 2021 and, in the ordinary run of events, obtained a hearing before me on 1 February 2022. The Mother sought an abridgement of time to have the matter brought on earlier and that application was refused. The Mother sought to review that but the date for the review was, indeed, this day, that is, after the date of the initial hearing.
The matter was fixed for hearing before me on 8 February. The Mother's frustration at being unable to obtain a hearing prior to the commencement of school can be understood. What then occurred is essentially a standoff between the parents as to which school the children would attend.
However, ultimately, the children have not attended either school this school year because, unfortunately, the children have contracted COVID-19. The Mother now has the burden of caring for the three COVID-19 affected children at home and her baby of some months and trying to attend to this hearing, and a mere recitation of those circumstances evinces some sympathy for the position that the Mother has this day.
I am not persuaded that I should place significant weight on the financial aspect of the school in the circumstances where the Mother has not provided, other than by instructions to her counsel when I pressed, any details of her financial affairs. Her frustration can be understood at what she sees as the inconsistent position of the Father in changing his position from agreeing to change schools because of school fees, to seeking the children remaining at the same school.
However, the Father never agreed or contemplated agreeing to a change of school in the opposite direction to where he works and lives. Further, D School is not the only state school in the area. I accept that, having diligently done investigations as to the appropriate school, the Mother has no doubt in her mind that D School is the best school for the children in the circumstances. She is prepared to put her travel where her thoughts are and poses that, if necessary, she will travel from her home to the Father's home, pick the children up and take them to D School.
I raised with counsel for the parties that I was concerned that this school dispute may indicate that I was dealing with the tip of the iceberg of a multi-layered dispute relating to the parental relationship. I also raised that I had a suspicion of each having strategic motivations as to the children's school relating to the pending application of the Father's to change the existing arrangement to equal time.
I further note that that application will need to cross the Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”) threshold, as the Mother takes the point that apparently there has not been a significant change of circumstances sufficient to warrant the revisiting of the litigation with the ills for the children that will entail. I am not hearing Rice & Asplund arguments in these proceedings today. Further, when it comes to determining the Rice & Asplund application, one party seeks that I do so with the assistance of the further information that I would have from a child impact report or what could be called an interim report as to the children's welfare. I make no finding about either of those matters but indicated to the parties that they have liberty to apply on short notice following the completion of the contravention proceedings to deal with those matters.
I also take into account, as this matter is docketed to me, that if the matter is going to be dealt with by way of a final hearing and as I expect, likely three-day matter, it won't be able to be accommodated in my list until June 2023. In June 2023, child 1 will be in grade 6. She will have merely months to go at primary school. It is hoped that the parties have better luck sorting out child 1’s secondary school than the current issue with primary school, but that decision will soon be upon them. The current circumstances bode poorly for cooperative consultation in regard to that aspect.
The applicable law
The authorities that I will refer to, and have been referred to, will be Re G: Children’s Schooling (2000) FLC 93-025, and I will specifically refer to the below paragraphs:
65. First, we approach the question of the wife's application without any legal presumption that favours acceding to the proposal of the parent with whom the children are living. Section 65E of the Act requires a determination between the competing proposals on the basis that the best interests of the child are the paramount consideration. Although there is no legal presumption in favour of the residence parent and, correspondingly, no hurdle or onus faced by the other parent, that is not to say that the reality of the children residing predominantly with one parent has no relevance. While his comments were made in the context of a relocation dispute, it is apposite in this regard to refer once again to the judgment of Kirby J in AMS v AIF; AIF v AMS. His Honour said at page 86,050 (para 193):—
``... it is important to remember that in Australia, whilst the welfare (or best interests) of the child are, by statute, the `paramount' consideration in the exercise of jurisdiction such as was invoked here, they are not the sole consideration. In this respect, the position in this country is different from that in Canada [footnote: Divorce Act, RSC 1985 c 3 (2nd Supp), s 16(8).]. It more closely conforms to the language of the Convention on the Rights of the Child [footnote: Convention on the Rights of the Child, Art 3.1: `In all actions concerning children, whether undertaken by... courts of law... the best interests of the child shall be a primary consideration.'.] Statutory instructions as to the paramountcy that is to be accorded to the child's welfare or best interests are to be understood as they apply to a child living in Australian society, normally in relationship with both parents and other members of its family. Whilst the legislation considered in this case, and later statutory reforms, give the highest priority to the child's welfare and best interests, that consideration does not expel every other relevant interest from receiving its due weight. In part, this is because (as the English courts recognised long ago) the enjoyment by parents of their freedoms necessarily impinges on the happiness of the child [footnote: Poel v Poel [1970] 1 WLR 1469; P v P [1970] 3 All ER 659.]. But, in part, it is also because legislation such as FLA 1975 [Family Law Act 1975 (Cth)] and FCA 1975 [Family Court Act 1975 (WA)] is enacted to take effect within a society of a particular character whose members enjoy a high measure of personal freedom, diminished only to the extent that the law obliges.''
…
83. In our view, two matters are of relevance here to the differing proposals of the parties.
84. The first relates to the consequences of one parent carrying the predominant burden of meeting the practicalities that flow from their children's schooling. There is no doubt that the parties are seeking to advance the interests of the children in the way each considers will nurture the children's strengths and cater to their needs. We think this is so notwithstanding the suggestion in the Family Report that additional agendas between the parties may be at work.
…
88. The second point we think relevant to this category of matters to be considered is the undisputed fact that the wife had thoroughly researched schools in the [the locality] area. Her selection of [[D School]] was based on those inquiries. The husband conceded that he had not made similar inquiries of [[D School]] and in his affidavit sworn 27 August 1999 said that his knowledge of the school derived from living in the [locality] for 40 years. Under cross- examination, he further explained that his view of the school was also based on observing the people who had gone there and speaking ``to different people about their thoughts of [[D School]].''.
…
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 fulfillment 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. We do not consider that the fact of a prior agreement between the parties as to [[C School]] carries much weight in the changed circumstances of the family.
I also refer to the decision of Eden & Eden-Proust [2011] FamCAFC 138 (“Eden & Eden-Proust”). I was also referred to the decision of Licata & Buxton [2019] FCCA 3181 and I will refer to paragraph 109 of that decision as it refers to Eden & Eden-Proust:
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. 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; Eden & Eden-Proust. 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.
This decision is to be determined according to Part VII of the Act which requires that any parenting order I make be in the best interests of the children.
Section 60CA
Child’s best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
…
Section 60CC
How the court determines what is in the child’s best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Note: Section 68P also limits the effect of this section on a court making decisions under that section about limiting, or not providing, an explanation to a child of an order or injunction that is inconsistent with a family violence order.
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The parties have addressed me sensibly in general terms relating to the practicalities and motivations of each of their clients. I have not been addressed specifically in regard to each of the matters in section 60CC of the Act. However, in terms of the primary consideration of the benefit to the children of a meaningful relationship with each of their parents, this decision only touches on that in a small way.
The Father's case is that the move to D School has a practical impediment of making it more difficult, if not impractical, for the maintenance of the existing regime which promotes and ensures his relationship with the children. The issue of bullying that the Mother raises does raise the issue of abuse to a degree. However, it is not suggested that there is any abuse that the child needs protection from in the Father's home, rather, that the past exposure to what the Mother sees as bullying and an insufficient or inadequate response to that by C School means there is a risk of that occurring in the future.
I do not know the children's views about C School or a change of school. Further, given their ages, there is a real practical limit to the weight to be put on those wishes in any event. However, child 1 is 9 years old, and she will turn 10 this year.
In terms of the section 60CC considerations, it is the Father's case that he has maintained and demonstrated an appropriate attitude to the responsibilities of parenthood and maintained an appropriate obligation to maintain the children. The Mother points to what she sees as a parsimonious attitude to the payment of school fees. The Father responds and says that he is paying child support as assessed at the full quid, and is not in arrears.
The law on this matter, this being an interim hearing, is that I must apply Part VII as determined on an interim hearing by Goode & Goode (2006) FLC 93-286 (“Goode & Goode”). Below are paragraphs 72 and 78 of that case, referring to a settled regime:
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
78. The combination of the Revised Explanatory Memorandum and the comments of the House of Representatives Standing Committee on Legal and Constitutional Affairs suggests that s 61DA(3) provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult. In this case for example, we respectfully agree with his Honour’s decision that this consideration meant it was inappropriate to apply the presumption.
The Father's case is all of the children are settled at C School and that should continue. The Mother's case is that child 1 is not settled there and child 2 is not up to scratch in maths. On this interim hearing, I cannot simply read the papers and decide one parent is right and the other is wrong about any factual dispute, notwithstanding I am not required to disregard an allegation merely because it is contested.
I do not disregard the Mother's concerns about child 1 being at C School, and I accept for the purpose of this hearing that the Mother is genuinely motivated in regard to child 1’s welfare.
It was submitted by both counsel that I put to one side, and not place any weight on, any suspicion or circumstance that this dispute is just part of a greater dispute that I am unable to get to the bottom of, and I do so. I cannot make a finding that the Father's attitude and statements in these proceedings are not genuine. Hence, I have two genuine parents, concerned for their children's welfare, prepared to spend significant amounts of money on lawyers to advance those children's welfare, arguing the issue of a change of D School before me.
I sought from each of the parties the amount of money that is being spent on lawyers. I might say they have been of great assistance to me. It is put to be that each party has spent something in the region of $4,000 to $6,000 on this particular dispute so far. There is some irony for me that the parties' collective expenditure on legal fees and other expenses over this dispute, both put together would be over three years’ worth of the combined school fees. However, there is not much that either parent can do about that when it takes two parents to agree and to confer and work out the children's arrangements.
If I only look at the Mother's evidence and submissions and accept her opinions about matters as fact, it is a strong and compelling case, provided I do not have regard to the Father's position on this interim hearing. I am satisfied that the burden is not on either parent to establish which school is the better school, and no part of this decision should be seen as a judgment of which is the better school, as I simply do not have that evidence, nor is it appropriate that I make those judgments on an interim hearing.
The Father sought this day the following orders:
1. That the children remain enrolled at [C School].
2.That forthwith the applicant pay to [C School] any fees or costs outstanding for the children for any and all periods up to 31 December 202 l.
3.That upon provision by the applicant of a receipt for the payment set out in paragraph 2. the respondent forthwith pay to [C School] the fees and costs of the children for Term 1, 2022.
4.That within 14 days the applicant provide to the respondent her relevant disclosure, as follows:
(a) Her three most recent tax returns.
(b) Her three most recent payslips.
(c) Her most recent Centrelink payment summary.
(d) Any documents that relate to the applicant's maternity leave, including documents which set out any paid leave received by her, and any documents that set out an anticipated return to work date.
(e) A copy of her current employment contract.
(f) Statements from all hank or like accounts (including credit cards) in her sole name, or in joint names with any other person from 1 November 2020 to the current date.
(g) Copies of invoices and receipts for all school, day care and outside school hours care fees relating to the children of the relationship from 1 January 2020 to the current date.
(h) lf any of the above documents do not show the source of payment for the children's school, day care or outside school hours care fees, documents that show the source of such payment.
(i) Copies of all correspondence between the applicant and [[C School]], including emails between the applicant and any individual teacher or other staff member of the school, in relation to:
i. The education of the children, or any of them.
ii. The wellbeing of the children, or any of them, whilst at school, including issues about bullying, behaviour in class or in the playground, and health issues.
iii. The payment of school fees, including enquiries, requests or information exchanged about whether fee reduction or fee relief could be available.
5. That the parties share the cost of the children's school fees, in a fair and equitable manner, based on their respective incomes, expenditure and other necessary financial commitments, to be determined by agreement following the provision of the applicant' s disclosure, or by the court if no agreement can be reached.
6. The applicant pay the costs of the respondent incurred in the Application in a Proceeding.
The Mother's minute of orders sought this day –
1. The parties forthwith do all things and sign all necessary documents to cause the children [child 1] born 2012 (“[child 1]”), [child 2] born 2013 (“ [child 2]”) and [child 3] born 2015 (“[child 3]”) to be enrolled at [[D School]] effective immediately.
2. In the event the Respondent Father does not comply with the preceding Order by 4:00pm on 10 February 2022, the Applicant Mother shall be authorised to complete all necessary enrolment procedures for [child 1], [child 2] and [child 3] to attend [[D School]], without the Father’s signature and/or consent.
3. The Mother shall undertake all travel to and from the Father’s home to facilitate the children attending at and returning home from [[D School]] on days they are scheduled to be in the care of the Father, unless the Father advises the Mother in writing the day prior that he or his agent are able to do so.
4. The Father pay the Mother’s costs in relation to this Application in a Proceeding.
The contrary position was put that on this interim hearing on this matter before me, the decision in regard to the burden of school fees, notwithstanding the absence of all of the available information, was, in fact, a parenting order and fell within section 64B(2)(i) of the Act. The full section 64B is below:
64B Meaning of parenting order and related terms
(1) A parenting order is:
(a)an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or
(b)an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).
However, a declaration or order under Subdivision E of Division 12 is not a parenting order.
(2) A parenting order may deal with one or more of the following:
(a)the person or persons with whom a child is to live;
(b)the time a child is to spend with another person or other persons;
(c)the allocation of parental responsibility for a child;
(d)if 2 or more persons are to share parental responsibility for a child--the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e)the communication a child is to have with another person or other persons;
(f)maintenance of a child;
(g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i) a child to whom the order relates; or
(ii)the parties to the proceedings in which the order is made;
(h)the process to be used for resolving disputes about the terms or operation of the order;
(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).
Note:Paragraph (f)--a parenting order cannot deal with the maintenance of a child if the Child Support (Assessment) Act 1989 applies.
(3)Without limiting paragraph (2)(c), the order may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child.
(4)The communication referred to in paragraph (2)(e) includes (but is not limited to) communication by:
(a) letter; and
(b) telephone, email or any other electronic means.
(4A)Without limiting paragraphs (2)(g) and (h), the parenting order may provide that the parties to the proceedings must consult with a family dispute resolution practitioner to assist with:
(a)resolving any dispute about the terms or operation of the order; or
(b)reaching agreement about changes to be made to the order.
(5)To the extent (if at all) that a parenting order deals with the matter mentioned in paragraph (2)(f), the order is a child maintenance order.
(6)For the purposes of this Act:
(a)a parenting order that provides that a child is to live with a person is made in favour of that person; and
(b)a parenting order that provides that a child is to spend time with a person is made in favour of that person; and
(c)a parenting order that provides that a child is to have communication with a person is made in favour of that person; and
(d)a parenting order that:
(i)allocates parental responsibility for a child to a person; or
(ii)provides that a person is to share parental responsibility for a child with another person;
is made in favour of that person.
(9) In this section:
this Act includes the applicable Rules of Court.
It was also submitted as a matter of statutory interpretation I should take into account the whole of section 64B(2) and the principles of Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. That is, to give weight to every word of the provision, that any aspect of the first part of section 64B(2)(i), “the care, welfare or development of the child”, was a separate matter to the next aspect, which was then “any other aspect of parental responsibility” rather than the words “or any other aspect of parental responsibility” governing the initial words “care, welfare, or development of the child”.
I was also referred to the decision of Love & Henderson (1996) FLC 92-653. That decision, of course, predates the 2006 amendments, but I give some weight to it, particularly as it is a decision of Kay J, who also had considerable experience and knowledge of the interaction of the child support scheme and children's welfare matters.
Hence I find that I do have power on this interim hearing to order either or both parties to pay schools fees in regard to the children at the existing school.
The Father's case is that the Mother has demonstrated by her choice of that school, and then the children's attendance at it over the last five or six years demonstrates that it is practical that they do so.
I do not touch on the issue of parental responsibility. There is an existing order for equal shared parental responsibility. The choice of school is not directly assisted by section 65DAA of the Act or any of those provisions, save that it is clear that Parliament intends, if possible, both parents to be able to be involved in the life of the children at the school, and that by the merest smidge contends in the Father's favour but that is not a significant consideration. This being an interim hearing, I must hear it in accordance with paragraph 82 of Goode & Goode:
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Conclusion
In this matter, I find that the practicalities of getting the children to and from school, on the information that I have on this interim hearing, is best advanced by them remaining at their existing school. I do not find that it is impossible that in the future their welfare would be advanced at D School, but on this interim hearing I am not persuaded that I should change the children's school. As can be seen from the matters of the school reports that I have recited in regard to child 2 and child 3, certainly the school regards child 2 and child 3 as doing well at that school. The Mother's complaints relate very much to child 1 and the school's management response to her complaints about child 1.
I also add that the Father is on the D School Board; that is uncontroversial. The Mother has deposed that she has seen that as a good, not a bad thing. I was told today, and I accept, that the Father has been on the D School Board for four years, and that is not a recent circumstance in any way designed to merely reinforce his position in this dispute. But the circumstance is the Mother seeks to relocate all of the children away from the very school where the Father is involved on the D School Board. I place little weight on that circumstance other than demonstrating one of the children's parents is significantly involved at the child's school.
Ultimately, though proceeding on the basis that the Mother's motivation as genuine, as I am unable to be persuaded that the change for the children from their existing school to a new school is in the children's best interests on this interim hearing. However, that is on the basis that the existing arrears of child support are paid by the Father, and that until further order, the parents are to pay equal school fees in regard to the C School and equal school fees and D School books expense. That is, the billable expenses that come out from the C School are to be paid equally by the parents.
The next hearing before me will likely concern the Rice & Asplund application. There may or may not be a final hearing in June 2023 or thereabouts.
I paint that picture with a very broad brush on the limited information that I have before me. I have significant information from the Father, in that he has gone to the trouble of filing a financial affidavit, and I have taken all of the matters there into account. I will not recite them, because it is now 5:20pm. I have limited information from the Mother, and I note that her primary concern is child 1’s welfare at school. I find that were the Mother to be of the opinion that child 1 was well suited at that school, one way or another she would have continued to find the school fees, with difficulty or not, that she has always found.
I am satisfied of my power to make such orders on this interim hearing for the children's welfare and in the situation that I have an emergency that they do not have a school to go to next week unless I make an order or the parents agree, and they will not agree.
Until further order, I find that it is in the children's best interests that I compel each of the parents to pay one-half of the school fees and, if practical and acceptable to the school, to request the school to provide such bills in half and to send out those bills to each parent. I do not want another layer of dispute and trouble between the parents over who paid first and what was half and what was extra.
I accept that this decision is not what either parent seeks. Nonetheless, having the responsibility of making the decision in the absence of agreement by the parents, I determine that is in the children's best interests.
Without limiting either parent's rights to seek a review of a decision, for the time being neither parent is to exercise any legal right they have to unilaterally set off any part of the school fees against existing child support assessments, or to somehow work out that the other one has to pay extra. I am not prohibiting any further child support review procedures in the circumstance where the Father has now sought, at this point in time, that the children continue at C School, notwithstanding the point that he complained of inadequate consultation back when child 1 started prep.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 19 July 2022
0
3
0