Hobson and Dorset

[2014] FCCA 2812

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOBSON & DORSET [2014] FCCA 2812

Catchwords:
FAMILY LAW – Interim arrangements for care of child five – which primary school should child attend – parties competing applications fixed for final hearing in April 2015 – child due to start primary school at commencement of school year in 2015 – high level of conflict – parents unable to determine education issue – both parties advocate government funded schools in the northern suburbs of Adelaide – matters to be considered – best interests.

Legislation:

Family Law Act 1975, ss.4; 60B; 60C; 60CA; 60CC; 61DA; 64B(2); 65DAC; 68LA

Eden & Eden-Proust [2011] FamCAFC 138
Re G: Children’s Schooling (2000) FLC 93-025

Applicant: MS HOBSON

Respondent: MR DORSET

File Number: ADC 1560 of 2010

Judgment of: Judge Brown

Hearing date: 20 November 2014

Date of Last Submission: 20 November 2014

Delivered at: Adelaide

Delivered on: 8 December 2014

REPRESENTATION

Counsel for the Applicant: In Person

Solicitors for the Applicant: Not Applicable

Counsel for the Respondent: Mr Perrie

Solicitors for the Respondent: Aboriginal Legal Rights Movement

Counsel for the Independent Children's Lawyer: Ms Lewis Dermody

Solicitors for the Independent Children's Lawyer: The Family Law Project

ORDERS

1. The father be permitted to enrol the child of the relationship X born (omitted) 2009 at the (omitted) Primary School for the school year commencing January 2015 and the child attend that school pending final hearing.

IT IS NOTED that publication of this judgment under the pseudonym Hobson & Dorset is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1560 of 2010

MS HOBSON

Applicant

And

MR DORSET

Respondent

REASONS FOR JUDGMENT

Introduction

1. Ms Hobson “the mother” and Mr Dorset “the father” are the parents of X born (omitted) 2009.

2. The parties have been in dispute, with one another, in respect of arrangements for X’s care, since at least April of 2010.  X is now over five years of age.  As such, he is due to start primary school at the start of 2015.

3. Ms Hobson and Mr Dorset cannot agree on which primary school X should attend.  Both parties live in the northern suburbs of Adelaide – the mother in (omitted); the father in (omitted).  Their homes are about five kilometres apart.

4. In addition, both parties advocate that X should attend a state funded primary school in the (omitted) area, again in the northern suburbs of Adelaide.  The mother’s preference is for (omitted) Primary, which is in the suburb of (omitted). 

5. The father’s preference is for (omitted) Primary School, which is in the suburb of (omitted).  The schools, on my calculations, are around three kilometres apart. 

6. Each party has access to a motor vehicle.  In order to travel to both schools, Ms Hobson would have to pass relatively close to Mr Dorset’s home.  It would be a slightly longer drive for her to have to go to (omitted) rather than (omitted), but not inordinately so.

7. In practical terms, it appears to me to be a line ball as to which school is more accessible for Mr Dorset.  From the map, (omitted) appears closer to his home, but not too any great degree, certainly not when travel in a motor car is involved.

8. For reasons which will appear in due course, any intrinsic differences between the two schools are likely to be slight.  In these circumstances, it is difficult to reach any other conclusion than that the issue is emblematic of the struggle between the parties for the upper hand, over the other, in respect of issues to do with X.  This does not bode well for the future and X’s ongoing emotional stability.

9. The parties have no capacity, whatsoever, to reach a compromise in respect of the issue, which appears to be of great significance to both of them.  Both Ms Hobson and Mr Dorset are able to muster arguments to support their respective positions.  In these circumstances, it falls to the court to determine the matter.

Background

1. The parties have never lived together.  From the mother’s position, they had an on and off relationship, which came to an end when she discovered that she was pregnant with X.  Mr Dorset’s name was not entered upon X’s birth certificate.

2. In these circumstances, the mother commenced proceedings in order to obtain a declaration of paternity, so that she could apply to the Child Support Agency to obtain an administrative assessment of child support, for X, payable by Mr Dorset. 

3. Ms Hobson has another child, from an earlier relationship.  He is Y born (omitted) 2007.  Y has always lived with his mother. 

4. Mr Dorset apparently contested the paternity of X.  The issue was determined by scientific testing on 22 January 2010.  The parentage testing report revealed that Mr Dorset is X’s father beyond any shadow of either scientific or legal doubt.

5. Thereafter, the parties’ parenting relationship has been a turbulent one.  In May of 2010, the mother sought the urgent return of X, to her care, following a scheduled contact visit.  Mr Dorset had declined to return the child because he alleged that the mother’s household was unsanitary and Ms Hobson herself had significant issues relating to the abuse of illicit drugs and alcohol.  As a consequence of these matters, it was his position that X was the subject of neglect. 

6. The mother denied these allegations.  In these difficult circumstances, the court ordered the return of X to Ms Hobson, but ordered that an urgent family report be prepared.  In addition, Families SA were invited to intervene in the proceedings and were directed to provide any child protection records relating to X. 

7. Perhaps surprisingly, given the circumstances, the family report, prepared by an experienced court expert and psychologist, Mr R, indicated that the parties had been able to resolve their difficulties consensually.  Mr R reported his opinion that both parties could offer living environments, which were considered suitable for a child of X’s age. 

8. Mr R further reported that the parties had agreed that X would live with his mother and have alternative weekend visits with his father, from Friday to Sunday, in one week of each fortnight and during the day on the Saturday of the other week of the fortnight.

9. Mr R also noted that X was Mr Dorset’s seventh child, from several past liaisons.  At the time of the report, in mid-2010, Mr Dorset was 26 years of age.

10. On 14 July, 2010, final orders were made, with the consent of each of the parties, to this effect.  X was to live predominantly with his mother, but see his father regularly, including for overnight periods.  At the time, X was around fourteen months of age.

11. On 25 September 2012, the matter returned to court, on the mother’s application.  Again, she sought an order for the urgent delivery up of X to her care.  She alleged that Mr Dorset had again unilaterally retained X, in breach of both the earlier orders and his promise to return the child to her, following a holiday visit. 

12. Mr Dorset had a very different perspective on the matter.  It was his position that X had lived predominantly with him since September of 2011.  Around this time, he asserted that he and Ms Hobson had agreed that X would live mainly with him and spend regular weekend time with his mother.  He asserted that this arrangement had been ratified by a consent order, made by the Family Court at Adelaide on 27 September 2011. 

13. A search of the court file indicates that an application for consent orders was indeed made.  However, the application was not supported by a minute of the actual orders sought and it would appear to be the case that no such order was actually made. 

14. In his supporting affidavit, Mr Dorset identified himself as being an Aboriginal person.  He further deposed that he had recently enrolled X at (omitted) Kindergarten. 

15. It is the current underpinning of much of Mr Dorset’s case, at present, that considerations of continuity should now dictate that X moves onto (omitted) Primary School, in the cohort of children with whom he has spent his kindergarten and pre-school years.

16. It was further Mr Dorset’s position that X had come into his care because the mother continued to suffer significant difficulties in her domestic situation.  He alleged that she continued to have alcohol and drug issues and was involved with a violent and abusive partner. 

17. On 24 October 2012, Lindsay FM (as he then was) ordered that X live with his father and spend alternate weekends and overnight each Tuesday with his mother.  It was ordered that the child attend (omitted) Kindergarten and that Ms Hobson be restrained from bringing the child into the presence of a person who was then described as her previous partner.

18. Again, perhaps surprisingly, the parties were, once again, able to reach an agreed position in respect of final orders for X.  On 21 November, 2012, it was agreed that the parties should have equal shared parental responsibility and that X would live mainly with Mr Dorset, but would spend substantial and significant periods of time, during school terms; school holidays; and on special occasions; with his mother.

19. These orders did not have very long to bed down before the matter once again returned to court.  On 15 April 2013, the father sought his own urgent delivery up of the child.  At this stage, he alleged that the mother had refused to take X to (omitted) Kindergarten and had not returned the child to him following a weekend visit.  He also asserted that X had the appearance of having been bitten and bruised, whilst in the care of his mother.  Mr Dorset alleged that the marks appeared to be both human and animal. 

20. The injuries to X were reported to Families SA.  However, records provided by the department indicate that the issue was not investigated due to the full case loads of social work staff. 

21. On 11 March 2014, the father commenced contravention proceedings against Ms Hobson alleging a persistent failure, on her part, to comply with earlier orders of the court, which provided for X to live with him.  On 14 April 2014, Ms Hobson commenced her own proceedings, in which she sought orders that X live with her and spend only day time periods with his father. 

22. In her affidavit, filed in support, she acknowledged that she had been in an abusive relationship during 2011, during which time X had gone to live with his father.  However, it was her position that she had now ended this relationship and got her own life onto an even balance.  She further alleged that she had serious concerns that Mr Dorset was subjecting X to neglect.

23. Mr Dorset denied these allegations and asserted that he and his wife Ms A provided a happy and safe environment for X.  He denied that his pet dogs, a Rottweiler and an Alaskan Malamute, posed any threat to X. 

24. He characterised Ms Hobson as a difficult person to deal with, in respect of making sensible arrangements for X’s care.  An example, provided by him, in this regard, was a facebook site, originating with Ms Hobson, entitled let X be a boy.  Mr Dorset alleged that Ms Hobson had engaged in an internet campaign against him to have X’s curly hair cut short. 

25. In all these circumstances, it was Mr Dorset’s position that X was safe and well settled in his care and had been so since mid-2011.  As a consequence, he contended that it could not be said to be in X’s best interests for there to be further litigation in respect of the well settled arrangements for his care. 

26. As such, he sought the dismissal of the mother’s application, according to a principal well known to family lawyers, which was first formulated in the case of Rice & Asplund.[1]

    [1]  See Rice & Asplund (1979) FLC 90-725

27. There is no absolute rule, but the case of Rice & Asplund recognises that it is neither helpful to parents nor beneficial to their children that there should be continual litigation about the care of children.  There comes a point when “enough is enough”.

28. For that reason, a court will not readily re-open a case concerning parenting orders recently made.  There needs to have been a substantial change in circumstances before a court will do so.  This is the basis of the rule in Rice & Asplund.

29. As, in the past, the parties had had a history of reaching agreement in respect of arrangements for X’s care, I referred the parties to a child dispute resolution conference, prior to deciding the father’s Rice & Asplund application.  I was provided with a memorandum of what was discussed at this conference.  

30. This memorandum raised the following risk factors as reported by Family Consultant Dr B.

    “The mother raised serious allegations of physical abuse. Ms Hobson stated that when X came into her care on Friday (30 June 2014)  he had bruising on both his temples and under his eye socket on the left side of his face. She stated that she took him to a GP and X stated that his father had “punched” him while he was playing in the play room. Both the mother and the GP have reportedly made reports to Families SA. He also reportedly told the mother that Ms Dorset regularly hits him over the back to the head.”

31. In response to these allegations, Mr Dorset and his wife made counter-allegations of Ms Hobson being physically abusive to X.  In all these circumstances, it was Dr B’s assessment that the conflict between the parties appeared to be escalating.  In addition, each parent stated that X did not want to go to the other parent, but wished to remain in his or her care. 

32. In all these circumstances, I came to the view that it would not be in X’s best interests for the mother’s application to be dismissed without a more exhaustive inquiry, by the court, into all the troubling allegations made by each of the parties.  I also determined that it was appropriate that X himself was independently represented in the case.

33. X’s representative is Ms Lewis-Dermody, an experienced family lawyer. Pursuant to section 68LA of the Family Law Act the law requires Ms Lewis-Dermody to formulate a position, based on all the evidence available to her, which she thinks will be in X’s best interests.  As such, the submissions of the independent children’s lawyer are of equal importance to those of the parties themselves.

34. In these difficult circumstances, the court has allocated a date for the final hearing of the parties competing applications, regarding living arrangements for X.  The final hearing has been scheduled for 1 April 2015.  In conjunction with this trial listing, it has been ordered that a family report be prepared.  That report is not as yet to hand. 

35. It is against this difficult background that the issue of which primary school X should attend must be determined.  Necessarily the decision cannot await the final hearing.  The parties and X need to know which school X should attend.  As indicated, at the outset, there is no prospect of the parties resolving the issue themselves. 

The mother’s proposals

1. Ms Hobson sees (omitted) Primary School as providing significantly better support, for Aboriginal students, than (omitted) Primary School.  It is her evidence that, in 2014, (omitted) Primary School had sixty-three Aboriginal students enrolled out of a total school population of two hundred and seventy-three.

2. (omitted) Primary School also has an Aboriginal education strategy, which endorses as one of its themes cultural respect for Aboriginal students and the provision of a culturally appropriate curriculum.  Aboriginal parents are encouraged to be involved with the school’s programs. 

3. Y currently attends (omitted) Primary School and attends the (omitted).  The school takes part in the Aboriginal football and netball state carnival held each year.  In the mother’s estimatum, the school suits Y’s needs.

4. Ms Hobson is a single parent.  From her perspective, it will be easier for her to deliver and collect both her children – X and Y – from the one school.  It is also her view that it will be helpful to X, in an emotional sense, if he attends the same school as his older brother.

5. Ms Hobson generally views (omitted) Primary School as being a superior school to (omitted) Primary School.  (omitted) Primary School has a Christian pastoral support program, operated by a person named Ms H, whom Ms Hobson has known for eighteen years.  Ms Hobson has a great deal of regard for Ms H and the vision of the teachers and management at (omitted) Primary School. 

6. Ms Hobson also relies on an affidavit of her mother, Ms J “the grandmother”.  The grandmother is critical of the rate of X’s progress, whilst he has been attending kindergarten at (omitted).  She asserts that X “can’t draw, can’t colour in, and he doesn’t know how to write his name”.  She also complains that X can’t play simple board games, such as snakes and ladders.

7. The grandmother’s evidence has not been tested through any process of cross-examination.  For obvious reasons, the grandmother is likely to be closely aligned with Ms Hobson.  In these circumstances, it is likely to be prudent to approach her views regarding X’s progress at pre-school with some degree of caution. 

The father’s position

1. In support of his preferred school, Mr Dorset points to the fact that X has been attending (omitted) Children's Centre for a significant period of time.  Currently, he attends fifteen hours per week, which is spaced over three days.  Mr Dorset reports that X enjoys attending (omitted) and has made many friends there. 

2. Mr Dorset has provided what is described as a pre-school statement of learning in respect of X.  This document is intended to provide information, for families, regarding their child’s time at pre-school and their “dispositions as a learner”.  In this document, X is described as a positive, confident and outgoing child, while at kindy.  His social and communication skills are described as being satisfactory. 

3. Mr Dorset has also provided me with a copy of the Parent Information Booklet, in respect of the (omitted) Primary School, which runs from Reception to Year 12.  This indicates that the school was established by the Aboriginal communities of (omitted), (omitted) and (omitted), to ensure that Aboriginal cultural values and structures were embedded within the teaching and learning curriculum and in school policies and procedures.  Accordingly, as with (omitted) Primary School, (omitted) Primary School has a significant Aboriginal orientation. 

4. In this context, X’s pre-school statement of learning indicates that he has demonstrated a keen interest in the (omitted) language and is able to use (omitted) words for numbers, colours and body parts.  In this context, Mr Dorset asserts that (omitted) Primary School is able to support issues relating to X's Aboriginal background appropriately. 

5. Mr Dorset disputes any allegation that X is not progressing appropriately in terms of his basic addition, counting and writing skills.  Mr Dorset has arranged a tutor for the child, Ms N, with whom X has one session per week as well as two sessions per week during school holidays.   It is Mr Dorset’s evidence that X can write his own name.

6. In the father’s view, (omitted) Primary School is a superior school to (omitted) Primary School.  In particular, Mr Dorset asserts that classroom sizes are kept to fifteen students, in order to ensure that each student receives the maximum level of attention from the teacher.

7. X has a half-sibling, (omitted), who also attends (omitted) Primary School.  From Mr Dorset’s perspective, this is a further factor in favour of X remaining at the school. 

8. In addition, as matters currently stand, Mr Dorset is responsible for more school drop offs than is Ms Hobson.  In these circumstances, the father contends that as he and his wife do more of the school run, it makes sense for them to select X’s primary school. 

The applicable legal considerations

1. The issue of which school X should attend is capable of being resolved by the court making what is known as a “parenting order” as a consequence of the legislation contained in Part VII of the Family Law Act.  Pursuant to section 64B(2) a parenting order is an order which deals with the following issues:

   ·The person or persons with whom a child is to live;

   ·The time a child is to spend with any person concerned and the nature and extent of any communications between such a person and any child concerned;

   ·The allocation of parental responsibility for a child;

   ·If two or more persons share parental responsibility for a child, the form of consultation which those persons are required to have with one another prior to making decisions in the exercise of such responsibility;

   ·The financial maintenance of a child;

   ·The process to be used for resolving disputes about the operation of any parenting order; and

   ·Any other aspect pertaining to the care, welfare and development of a child or any other aspect related to the exercise of parental responsibility for that child.

1. In particular, in the context of the present case, a parenting order may deal with the allocation of responsibility for making decisions about major long-term issues arising in respect of any child [section 64B(3)].

2. Major long-term issues, in respect of a child, include issues related to that child’s long term care, welfare and development and specifically includes issues to do with the child’s:

   ·Education (both current and future);

   ·The child’s religious and cultural upbringing;

   ·Issues pertaining to the child’s health;

   ·The child’s name; and

   ·Changes to the child’s living arrangements which are likely to make it significantly more difficult for the child to spend time with a parent [section 4].

3. Accordingly, there can be no doubt that the issue of which primary school X should attend is a major long-term issue pertaining to the child.  For the reasons outlined above, the parties themselves are incapable of resolving the issue.  In the circumstances, the dispute between Ms Hobson and Mr Dorset is to be resolved according to the principles contained in the Family Law Act 1975. 

4. Part VII of the Family Law Act is the part of the Act which deals with arrangements for the care and parenting of children.  At the commencement of Part VII is a list of aims and principles, which the court is directed to consider to ensure that a child’s best interests are met through any parenting orders it makes.

5. The list of objects or aims of the legislation is set out in section 60B(1).  They are as follows:

   “(a)   ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”

6. The principals or code of ideas, which underpin those objects, are set out in section 60B(2) and are as follows:

   “(a)   children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)     parents should agree about the future parenting of their children; and

   (e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”

7. The question of which primary school X is to attend, like all issues pertaining to a child, is to be determined by reference to X’s best interests.  The service of X’s best interests is the most important consideration in this case [Family Law Act section 60CA].

8. In determining where those best interests lie, the court must consider the primary and additional considerations set out in section 60C of the Family Law Act.

9. There are two primary considerations – firstly the need to ensure that the child concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.

10. As a consequence of recent amendment to the Act, the court is required to give pre-eminence to issue relating to the protection of children from coming to harm as a consequence of exposure to abuse, neglect and family violence.

11. The additional considerations are more numerous [section 60CC(3)].  Again, their application must depend on the particular circumstances of the case concerned. 

12. The primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the family law legislation.  However, in determining the outcome of a particular case, one or more of the individual considerations may come to the fore.

13. The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.

14. I am required to follow the same pathway in determining what is the appropriate school for X to attend.  I must consider each of the matters set out in section 60CC(2) & (3), as they are relevant to the issue concerned. 

15. Pursuant to section 60CC(3)(m), I am permitted to take into account “any other fact or circumstance that the court thinks is relevant”.  This ensures that the infinite variety of individual children’s circumstances can be addressed and an appropriate idiosyncratic order made. 

16. There is no legal presumption in favour of one parent being able to make a decision pertaining to an educational issue, affecting a child, because the child concerned lives more with that parent than the other parent.[2]

    [2]  See re G: Children’s Schooling (2000) FLC 93-025

17. There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act section 61DA]. The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.

18. Previously, the parties have agreed that the presumption of equal shared parental responsibility should be applied to them and X.  As a consequence, pursuant to the provisions of section 65DAC of the Act, as parents who share responsibility for X, Ms Hobson and Mr Dorset are required to make decisions regarding major long-term issues, in respect of their child, jointly. 

19. The onus placed on them, by the provision, being to consult with one another and make a genuine effort to come to a joint decision about any major long-term issues pertaining to their child [section 65DAC(3)], including which school X should attend.

20. I accept that the parties in the current matter are currently unable to agree the issue and, in many ways, the application of equal shared parental responsibility, to their long conflicted circumstances, can only be described as being unduly utopian. 

Conclusions

1. This is a finely balanced case.  The two schools concerned are not a great distance apart and are likely to offer a broadly comparable standard of education, given both are funded by the South Australian Education Department.

2. This is not a case which is centred, at this stage, on issues relating to family violence, abuse and neglect.  There is no cogent evidence to suggest that Mr Dorset has in some way failed to discharge his obligations in respect of X’s pre-school education needs.

3. Whatever is the outcome of the case, X will have the same level of relationship with both of his parents. As such, he will continue to have a meaningful level of relationship with both his mother and his father.  However, at least until the final hearing scheduled for April of next year, he will live predominantly with his father.

4. In this context, it seems to me that Mr Dorset’s choice of school for X should be given close consideration.  He will be more responsible for the conduct of X to and from school.  In this regard, no doubt, Mr Dorset adopts what was said by the initial judicial decision maker in Eden & Eden-Proust[3]

   “… it would be fair to say that most reasonably minded people in the community would hold to the view that, generally, absent any agreement to the contrary, a child should attend a school close to his or her primary place of residence.  Obviously, travelling time to and from school is dead time for the child and takes away from him or her the opportunity to use such time for more productive/enjoyable purposes, such as school work or sporting activity.”

   [3]  See Eden & Eden-Proust [2011] FamCAFC 138 at page 2

5. At present, as a consequence of orders to which Ms Hobson ostensibly consented; X is more closely integrated into his father’s home rather than hers.  This is a significant factor, in my view, given that the two schools concerned are not widely divergent in the curriculum which they offer. 

6. It will be marginally easier for Mr Dorset to deliver X to (omitted) Primary School, particularly because (omitted) already attends there.  I note however, that this is not a case where the two schools concerned are a significant distance apart.

7. X’s preferences, particularly as to which school he should attend, have not been subject to any independent assessment, as yet.  However, it is the case that he has been attending the (omitted) kindergarten for some time and has made friends there, most of whom are likely to go on to primary school there.  This is also a significant factor, which in my view militates more in favour of the father’s proposal than the mother’s.

8. It also seems to be the case that X is, at least to some degree, integrated into the community which is centred on the various schools at (omitted).  In this regard, I note that the school was established as a consequence of the aspirations of members of the Aboriginal community living in the northern suburbs of Adelaide.

9. Issues of cultural identity are clearly very important to both the mother and the father, as well as to X himself, who is identified as being an Aboriginal child.  From the material made available to me, both (omitted) and (omitted) pride themselves are the support offered to Indigenous students.  Both have specific programs directed to the needs of such students.

10. In all these circumstances, I have come to the conclusion that X’s best interests will be served if he attends (omitted) Primary School as Mr Dorset proposes.

11. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:         8 December 2014