Holden and Mount
[2017] FCCA 2307
•22 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOLDEN & MOUNT | [2017] FCCA 2307 |
| Catchwords: FAMILY LAW – Final parenting arrangements for children aged 12 and 11 – high conflict between parents – older child has significant special needs – parties have agreed final arrangements for care of children after extended process of litigation and family therapy – one issue remains outstanding – what school should older child attend – father favours current school which is a private one – mother advocates specialised government school – principal of child’s current school advocates a government school – matters to be considered. |
| Legislation: Family Law Act 1975, ss.60B, 60CC, 68LA |
| Cases cited: B v B: Family Law Reform Act 1995 (1997) FLC 92-755 |
| Applicant: | MR HOLDEN |
| Respondent: | MS MOUNT |
| File Number: | ADC 3708 of 2015 |
| Judgment of: | Judge Brown |
| Hearing date: | 12 September 2017 |
| Date of Last Submission: | 12 September 2017 |
| Delivered at: | Adelaide |
| Delivered on: | 22 September 2017 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | Not applicable |
| Counsel for the Respondent: | Ms Lee |
| Solicitors for the Respondent: | Georgina Parker Lawyers |
| Counsel for the Independent Children's Lawyer: | Ms DuBarry |
| Solicitors for the Independent Children's Lawyer: | Legal Services Commission of SA |
ORDERS
UPON NOTING:
A.The mother will use her best endeavours to ensure the children spend time with the father pursuant to these orders and will encourage the children to do so.
B.The parties will attend mediation no earlier than June 2018 with a view to discussing ongoing parenting orders including whether there should be a shared care arrangement in place.
THE COURT ORDERS BY CONSENT THAT:
The children X born (omitted) 2004 and Y born (omitted) 2005 live with the mother.
The parties have joint parental responsibility for the said children.
The said children spend time with the father as follows:
(a)as to the child Y, for a period of no less than four hours once a month, at times and on a date to be agreed between the said child and the father, with the intention the father will take the child to an activity such as a movie and a meal or other suitable activity, for a period of three months,
(b)as to the child X, each alternate weekend from conclusion of school until 5pm Sunday commencing 22 September 2017, with the child Y to commence spending time with the father on the same weekend times from December 2017
(c)from 10am until 5pm on Father’s Day, provided that if the children are in the care of the father on Mother’s Day they be returned to her care at 10am on Mother’s Day
(d)on Christmas day from 2:00pm until 2:00pm Boxing Day and each odd numbered years thereafter NOTING the father will be travelling to New South Wales for the even numbered years and would like the children to accompany him for a week.
(e)for special occasions such as the children’s birthdays, Anzac Day, school term and Christmas holidays, at times and on dates to be agreed between the father and the children,
(f)for such other times as the parties and the children may agree in writing
The times referred to in paragraph 3 above are subject to the children’s wishes, with the father to communicate with the children on the Wednesday prior to his weekend time, to ascertain whether the children intend on spending time with him.
If the children or either of them are to spend time with the father as referred to in paragraph 3 (a) or (b) above, the father is to:
(a)notify the school by email that he will be collecting the children or either of them from school on that date.
(b)notify the mother by email or text message of the arrangements made between the father and the children.
Upon notification by the father that the children have agreed to spend time with him, the mother is restrained from:
(a)attending at the children’s school to collect the children or either of them, except in the case of an emergency,
(b)arranging any alternate activity or event on the weekend the children will be spending time with the father except with his prior consent.
The father is at liberty to attend all school functions and events to which parents would normally be invited, as to receive copies of all school notices and photographs of the said children at his expense.
The mother is keep the father fully informed of any significant medical appointment, counselling, therapy or special educational programmes the children may be involved in, including the name of, and appointments with, any such therapist or counsellor, and is to authorise them to communicate directly with father at their discretion.
Each party is restrained from:
(a)denigrating, abusing, harassing, or threatening the other of them in the presence of the children or encouraging any other person to do so;
(b)attending at the other party’s residence without a specific written invitation to do so;
(c)except in the case of an emergency, taking the children or either of them to any specialist medical practitioner without first informing the other parent of the nature of the consultation, and the date and time of the consultation;
(d)writing by email or otherwise to either of the children’s schools details of any parenting dispute between the parties, except as provided for in paragraph 5 above.
The father has agreed to pay all of the outstanding fees owed to (omitted) School and will pay the fees for the time the child X remains at (omitted) School for 2017.
In the event the children do not spend time with the father pursuant to these orders, the father is at liberty to arrange make up time with either of the children, subject to their wishes.
The children be at liberty to communicate with the father by telephone at any reasonable time they may wish to do so.
The father be at liberty to call the children on their mobile phones each day between 6:00pm and 7:00pm NOTING that the mother will use her best endeavours to ensure the children’s phones are charged daily.
IT IS OTHERWISE ORDERED THAT:
The mother is at liberty to enrol the child X at the (omitted) School from the commencement of the school year in 2018, with the father to be named on the necessary enrolment form as a contact person in the case of any emergency concerning the child.
The appointment of the independent children’s lawyer be discharged.
All applications be dismissed
IT IS NOTED that publication of this judgment under the pseudonym Holden & Mount is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 3708 of 2015
| MR HOLDEN |
Applicant
And
| MS MOUNT |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Holden and Ms Mount are the parents of X born (omitted) 2004 and Y born (omitted) 2005. These reasons for judgment are directed to determine what is in X and Y’s best interests, particularly in respect of one discrete issue, given that the parties have agreed, in very difficult circumstances, on final arrangements for the children’s care.
X is a child with significant special needs. He was diagnosed with Autism when he was four years of age. He has extreme difficulty with reading and understanding language. He also has problems in engaging in social situations and picking up on non-verbal cues appropriately. He has had issues to do with incontinence. His behaviour can be very challenging to deal with. He does not cope well with change and can become fixated on particular things and activities.
Y does not have special needs to anywhere near the same degree as X. He is however to be characterised as a vulnerable child, who has been diagnosed as being particularly susceptible to the risk of developing a psychological condition in future. He currently presents as an angry child.
The parties have been in dispute with one and another for many years over the appropriate arrangements for the children’s care, particularly how regularly they should interact with their father. Mr Holden commenced proceedings in this court in October 2015.
Since that time there have been two Family Assessment Reports prepared by a court appointed expert, Ms P, who is a social worker. In addition the parties and the children have engaged in a process of therapeutic counselling, with a psychologist, Mr M of (omitted). Ms Mount has also had a forensic psychiatric examination conducted by Dr M.
The case is one of significant complexity, as well as much controversy, involving allegations of family violence and child manipulation and alienation, as well as neglect. In these circumstances, on 25 November 2015, it was ordered that the two children be independently represented in these proceedings.
The Independent Children’s Lawyer is Simon Frazer, who is a solicitor employed by the Legal Services Commission of South Australia. He has briefed a barrister, Adele DuBarry, to appear on his behalf in these proceedings. The Independent Children’s Lawyer is to be regarded as a party to the proceedings of equal importance to the parents concerned.
Pursuant to section 68LA(2) of the Family Law Act, Mr Frazer and Ms DuBarry are required to form an independent view, based on the evidence available to them, of what is likely to be in X and Y’s best interests and then advocate that view to the court. In addition, it is part of Mr Frazer’s statutory responsibility to analyse any report or document relevant to the children and provide his opinion of such report and document to the court.
The case has proceeded to final hearing over three distinct blocks of time – firstly, in August 2016, when evidence was taken from Ms P and Mr R, who is the Principal of (omitted) School in (omitted), which is the school X currently attends.
Secondly, the proceedings were reconvened in June of 2017, when further evidence was taken from Ms P, in respect of her understanding of what were the views of the children, particularly following their involvement with Mr M. This intervention was necessitated by an apparent breakdown in relations between the children and their father.
Thirdly, in September of 2017, when it was envisaged further evidence would be taken from the parties themselves and it had originally been envisaged the proceedings would be finalised by way of a judicial decision. As the proceedings, have largely resolved, this decision is not needed. However, given the moment the issue remaining in dispute and the complexity of the proceedings generally, I consider it appropriate to summarise the evidence, which bring the parties to the current point.
In the intervening period, between the two main blocks of hearing – held in August 2016 and September 2017 respectively – the parties and the children had attended counselling with Mr M. Ms P had recommended this counselling, in her first report, in the belief that it would assist the parties to better manage the parenting of the children consensually. During this process, Ms P was asked to update her report.
Regrettably, the course of therapeutic intervention proposed by Ms P in her first report has been largely ineffective from Mr Holden’s perspective. Whatever green shoots of parental cooperation which were visible after the first hearing in August 2016, had regrettably withered by September of 2017.
When the case resumed on 11 September 2017, Mr Holden presented oral evidence and was extensively cross-examined by counsel for Ms Mount and by Ms DuBarry. I formed the impression that he was a decent person who loved X and Y deeply and wanted the best for them.
Mr Holden seemed to me to be an honourable person. In his evidence, he described himself as being opinionated. In my view, he was being unfair on himself. Rather, I would describe him as determined and dogged in his pursuit of what he thought was best for the children.
I also formed the view that he was discomforted by these proceedings and was well aware that they were not likely to be helpful to either X or Y, in an emotional sense or to assist him in improving his relationship with the children.
Mr Holden is an (occupation omitted) by occupation. For the past few years, he has made his living in the (employment omitted). He has been involved in the (employment omitted) in (countries omitted).
He is well paid but dependent on the availability of work for his livelihood which cannot be predicted. In addition, because of his relationship with X and Y, he is no longer willing to work off-shore.
As a consequence of his financial situation, Mr Holden does not qualify for legal aid. In addition, in recent times, he has rejected work because of his responsibilities for X and Y. As a consequence of these matters he has presented his own case before the court.
Shortly prior to Ms Mount’s being due to give her evidence to the court, Mr Holden advised me that, after the intervention of Ms DuBarry, the parties had agreed to resolve the vast majority of issues between them regarding the care of X and Y.
Mr Holden frankly told me that he did not wish to cross-examine his former partner, which he anticipated would cause her distress and perhaps prevent for an indefinite period of time there being any improvement in the parenting relationship between them, which on any view can only be described as extremely strained.
Essentially, pursuant to the agreement brokered by Ms DuBarry, the parties agreed that X and Y would live predominantly with their mother and spend only limited time with their father subject to their wishes. This was the outcome, which the children had largely indicated to Mr M was their preference.
One issue remains for the court to determine. It is a matter of much significance for each of them, but particularly Mr Holden. It is the school which X should attend, given his significant special needs.
Mr Holden’s preference is for X to remain at (omitted) School. This will represent a significant financial outlay for him, as the fees are currently around $6,000 per annum and the fees for 2017 year remain outstanding.
However, from Mr Holden’s perspective, it is the best school for X because of the pastoral care it provides. In Mr Holden’s view, X has come on in leaps and bounds in terms of his behaviour and attitude to school since beginning at (omitted) School, notwithstanding the school may not have a similar level of funding for children with special needs, which a government school might be able to access.
Significantly, Mr Holden submits that X is likely to be disturbed by any change in his routine, particularly a major one such as changing school. As a consequence, he fears that it would be very disruptive for X to leave (omitted) School and move to another school, which is likely to be larger. He fears that this would be very emotionally disruptive for X, given that he is happy at (omitted) School.
On the other hand, it is Ms Mount’s position that (omitted) School is not well suited to cater for X’s special needs as it provides him with very limited educational support, in the classroom setting, which he specifically needs. In these circumstances, she wishes X to attend (omitted) School, which is a government funded school.
(omitted) School is characterised as being a super school, which has within it a number of sub-schools, one of which would specifically cater for X’s special needs and be able to provide him with significantly more support from an individual SSO[1], who would assist him on an individual basis in the classroom.
[1] School Support Officer
It is Ms Mount’s submission that (omitted) School would provide a better and more individualised education, for X, which would be focused on his learning difficulties. As such, she believes that it would be a much better fit for X than (omitted) School.
X has been at (omitted) School since year three. Previously, he attended (omitted) School, which Y continues to attend. It is Mr Holden’s evidence that whilst he was at (omitted), the public education system merely warehoused X and he did not advance in any way whatsoever. In these circumstances, he is wary of again entrusting X to the public system.
On the other hand, it is Ms Mount’s position that Y is likely to attend (omitted) School when he begins his secondary education. In these circumstances, she believes that it would be beneficial to the children to be able to attend the same school and provide emotional support to one and other.
Mr Holden fears that X will disappear in such a super school, even if his brother attends there. It is his experience that (omitted) School is a more friendly and family based school, particularly given that its numbers are small when compared to a school such as (omitted) School.
Ms DuBarry supports Ms Mount’s position. She is sympathetic to Mr Holden’s position but, in advocating for (omitted) School, she is significantly influenced by Mr R, who has deposed as to his school being subjected to significant funding constraints, particularly in regards to children with special needs, because of the small number of children, with such needs, who attend his school.
These reasons for judgment are directed towards resolving this last area of significant controversy between the parties.
Background
The parties relationship with each other
The parties began their relationship in early 2004 and separated in early 2008, following an argument between them. At the time, they were living in rural New South Wales.
The argument was a violent one. The parties disagree as to who was at fault. It is not necessary to resolve that dispute, other than it is common ground the mother suffered a fractured nose, which required medical treatment. The emotional sequellae of this incident reverberate, for each of the parties, up to this time.
Following the incident, the mother returned to live in South Australia, where she has family support, particularly in the form of her mother. At the time of separation, the father was working overseas in (country omitted). When he returned to Australia, the father also moved to South Australia but continued to work regularly overseas.
Between 2008 and 2015, the parties managed the parenting of X and Y, without any involvement from outside sources, particularly in the form of court orders. It seems to be the position that in between his periods of work away from home, Mr Holden spent extensive periods of time with the children.
It is Mr Holden’s position, that whilst he was earning a comfortable salary, which more than adequately funded the support of Ms Mount and the children, she was content. It is also his position that he was able to spend significant time with the children and provide a form of safety net for them.
In this context, it is Mr Holden’s case that Ms Mount has suffered from a number of serious psychiatric conditions for most of her life, particularly a depressive illness. In addition, he alleges that she has in the past abused illicit drugs.
In these circumstances, it is Mr Holden’s evidence that Ms Mount has experienced great difficulty in adequately parenting the children. In particular, she has not been able to attend to routine domestic tasks and has failed to ensure that the children attend school regularly.
For her part, Ms Mount categorises Mr Holden as a domineering person, who is quick to criticise her. She acknowledges that she has suffered depression, from time to time, but asserts that her illness is not assisted by what she would characterise as Mr Holden’s bullying of her.
It is also Ms Mount’s position that she is and remains the children’s primary source of emotional sustenance. She asserts that both children have long had a troubled relationship with their father because of his attitude towards her and his domineering attitude towards them.
The parties’ original applications
It was the children’s failure to attend school regularly, which was the catalyst for Mr Holden commencing the proceedings. In 2014, X missed 61 days of school and was late on 52 occasions. As at August 2015, he had been absent from school for 27 days and late for school on 43 days. Y had also missed a number of days of school. In these circumstances, Mr Holden deposed as follows:
“I am extremely concerned about this and the repercussion it is having on their education. Whilst the records indicate that the children have been ill on a lot of occasions they have missed school, I say I do not agree with the same and that most of the time the mother simply can’t get out of bed to take them to school.”[2]
[2] See father’s affidavit filed 6 October 2015 at paragraph 71
In his initial application, on both an interim and final basis, Mr Holden sought orders that X and Y should live predominantly with him. At this early stage, he did not have any specific proposals for the children to spend time with their mother, if his application was successful.
In her response, filed on 19 November 2015, Ms Mount sought both interim and final orders that the two children live with her and she have sole parental responsibility for them. Like Mr Holden, she did not have any specific proposals for the children to spend time with their father.
Accordingly, from an early stage, the parties’ respective positions were polarised, in the extreme. This situation and the adversarial nature of these proceedings have not, in my view, assisted the parties or indeed X and Y to any degree whatsoever.
Rather it has extenuated the gulf between them, which has also ultimately had a polarising effect on the children, particularly Y, who has felt compelled to choose sides in the struggle between his parents. Mr Holden would assert Ms Mount has encouraged Y in this regard.
In support of her position, Ms Mount alleged that Mr Holden used excessive and unacceptable corporal punishment on the children, which has led to the children electing to live with her and not wish to spend time with their father. From her perspective, this was especially inappropriate, so far as X was concerned, given his Autism.
X, because of his condition, has very idiosyncratic preferences so far as what he is and is not prepared to eat. His dietary issues have to be approached with patience and sensitivity. It was Ms Mount’s allegation that Mr Holden did not have these qualities, so far as X was concerned, and had tied him to a chair, in an attempt to get him to eat more widely. In addition, she asserted that the children had been threatened with their father’s belt.
The issue of which school X should attend has long been a bone of contention between the parties. It is Ms Mount’s position that (omitted) School is too academically orientated and so is not suited to a child, such as X, who will never shine academically. She has also long been concerned about being left potentially liable for X’s school fees, which she cannot afford, as she is in receipt of a disability support pension, due to her long standing mental health issues.
In the lead up to the August 2016 hearing, Mr Frazer contacted Mr R and requested information from him about X and his level of progress at (omitted) School. Mr R wrote in the following terms:
“X is a Year 6 student of (omitted) School. He has been enrolled at the school since 29th January 2013, where he commenced as a Year 3 student.
A Substantial Adjustment learning plan exists to address X’s needs, which includes receiving limited individual intervention support. In the areas of Literacy and Numeracy he is functioning at a Year 1 level. Academic progress and growth has been witnessed this year.
School attendance has been an issue for X, which the school has discussed with his mother and father. This year X has been absent for 10 ½ school days and late on 17 occasions.
According to X's Class Teacher, Mr F, he has displayed sensible appropriate social interactions at school with only one report of inappropriate behaviour resulting in a physical altercation this year.
X has developed and maintained positive friendships with a number of boys in his class. He spends break times with one or two of these friends and occasionally joins in group games or plays by himself.
X participates in group situations at times during class and allows others to assist him with set tasks or activities. His Class Teacher has reported that his peers are becoming more aware and understanding of X and his personality and in fact assist him in social interactions.
In order to meet X’s needs it is desirable that he is in a setting that provides and specialises in functional Literacy and Numeracy skills where he is building life skills.[3]”
[3] See Mr Frazer’s affidavit filed 29 June 2016 at Exhibit SFZ-2
At the time of the August 2016 hearing, notwithstanding earlier orders to the contrary, it was apparent that X and Y, in particular were not spending any significant time with their father. From the mother’s perspective, this was because the children did not wish to interact with their father. From Mr Holden’s perspective, it was because the children were being influenced by their mother against him.
It is Mr Holden’s long-standing allegation that Ms Mount is significantly influenced by financial issues and, if she feels that he is not providing adequate support to her, she will withdraw the children from him in retribution. This is a further indicator of the significant and long-standing conflict between the parties.
Ms P’s first report
Ms P’s first Family Report was released to the parties in mid-March 2016. In this report, Ms P reported as follows:
“Mr Holden reported that X is in Year Six and still unable to read and write at a level that is acceptable for his age. The father conveyed that he does not understand why Ms Mount wishes to change X’s school enrolment. He noted that X does not like hence would likely dislike any school he attended. Ms Mount shared that she is unable to afford private tuition fees at X’s school. The mother conveyed the possibility of X being better suited to a Special Needs school situated behind (omitted) School, in the local area. Further, the mother noted that X had struggled to cope with the strict uniform policy at his current school.
In regards to X’s diagnosis of Autism Spectrum Disorder, Mr Holden presented with sound understanding and knowledge. The father discussed his understanding of X’s food preferences. It is often characteristic of children with Autism Spectrum Disorder to have specific food preferences which is largely related to smell and texture of foods. The father noted that X likes to eat ham, Kraft cheese, meat, potatoes and is willing to eat apples. Mr Holden accommodates X’s food preferences but does attempt to encourage/coax X to eat vegetables. The father explained that X struggles with change and with people not understanding him whereby the child feels that people ‘don’t hear him’. X’s main conflict resolution strategy is to respond with violence and aggression. Social communication is one of X’s biggest issues. He noted that X is high functioning Autistic, is very intelligent and requires guidance and structure.
Mr Holden had made efforts to understand X and his special needs by researching Autism Spectrum Disorder, online. Mr Holden had attended meetings with relevant professional and specialists during the assessment process for Autism Spectrum Disorder. Further, Mr Holden accessed information from Talking Matters in respect to X’s possible need for Occupational Therapy and Speech Pathology. The father conveyed a reflective and supportive attitude towards X and the child’s disability.[4]”
[4] Paragraphs 33, 34 and 35 Family Assessment Report dated 8 March 2016
Ms P further reported that the mother had indicated to her that she had experienced great difficulties in managing the children. In particular, she indicated that she had lost her temper with X and poked the children with a broomstick.
Ms Mount further reported her concern that when X became bigger, he might be physically abusive towards her. She also conceded that she had difficulty in organising herself and cooking meals for the children. In this context, Ms Mount identified to Ms P, the importance of her supporting the children’s schooling and needed to be more switched on and reliable in respect of it.
Mr Holden described himself as being a firm parent with the children and he acknowledged that he had physically disciplined them by smacking them on the bottom. He also agreed that, on one occasion, he had hit X with a belt but mainly utilised the presence of a belt as a behaviour management strategy.
During the observation process, Ms P noted the children were happy to see their father and greeted him with a kiss and a hug. Mr Holden was observed to be attentive and responsive towards the children. The children were also observed to be secure in the company of their mother.
Ms P also interviewed Mr R, for the purposes of her report. He confirmed that X had been absent for school on numerous occasions, an issue which he had canvassed with Ms Mount, who admitted that she found it difficult to get X to school. Ms P summarised her interview, with Mr R, in the following terms:
“X is in Year Six. However, the child’s academic abilities, at the time of this Assessment were reported to be at around a Year One or Year Two student. X has a leaning difficulty however his high absenteeism had also contributed to the child’s significant academic delay. Mr R reported that at the time X commenced (omitted) School, it was very difficult to assess the child’s actual capabilities because he also had high absenteeism at his previous school. Mr R recounted that ‘a few years ago’, in about 2013, there was a period when X’s school attendance was regular and there was marked improvement in the child’s academic progress.
In terms of X’s interaction with peers, the child’s deficit in social communication is evident. The students are aware of X’s special needs thus adopt more of a pastoral support approach to the child and make concerted efforts to include X. X has never spoken with an (omitted) accent in Mr R’s presence.
Mr R addressed with Mr Mount (sic), the possibility that a Government/Public school being may be better able to meet X’s special needs. It was the report writers impression that there was a sense of urgency in the need to address X’s educational needs. Mr R noted that in the event reversion to high absenteeism, the academic and social gap between X and his classmates is ‘ever increasing’.[5]”
[5] Paragraphs 82, 83 and 84 Family Assessment Report dated 8 March 2016
Ms P’s evaluation of the family can be summaries as follows:
·Parental conflict had prevented the parties communicating effectively;
·Y was well aware of this conflict and it had had a major detrimental psychological effect upon him;
·Ms Mount acknowledged that her mental health issues had adversely impacted upon her capacity to adequately attend to X and Y’s needs;
·As a consequence of episodes of poor mental health, it was likely that Ms Mount’s parental attunement had been compromised from time to time;
·The children had displayed significant behavioural issues at their mother’s home, particularly in terms of emotional regulation and anger management;
·It was recommended that Y and X undergo some form of psychological/therapeutic treatment to address the underlying reasons for their behavioural issues;
·There was a lack of structure and consistency in Ms Mount’s household;
·The father presented as a stable parental figure but as a person who would benefit from parenting guidance and education;
·The children’s absenteeism was concerning, as the children needed to be comfortable and familiar with school attendance.
Accordingly, Ms P identified many problems in Ms Mount’s household stemming from her inability to manage the children’s behaviour and provide for them. Ms P expressed herself as being doubtful as to whether Ms Mount would be able to make the necessary changes in her household to begin to more adequately address the children’s complex needs.
As a consequence, she recommended that the two children should transition to living predominantly with their father. However, Ms P also conceded that such a change was not without its difficulties, given X’s limited ability to cope with change and Y’s likely resistance to it, given his alignment with his mother.
Events following the release of the first family report
As previously indicated, in the period leading up to the August hearing, following the release of the report, the children ceased spending time with their father. Mr Holden believes that this occurred because of the recommendations of Ms P’s report which, for obvious reasons, Ms Mount was likely to find challenging to accept and would wish to undermine.
Accordingly, the case presented a very great dilemma. In her oral evidence, Ms P conceded that the children were more likely to be emotionally dependent upon their mother and aligned with her, against their father. In these circumstances, she agreed that it was potentially risky to abruptly change their living arrangements.
On the other hand, she was concerned that the mother was not currently providing the children with sufficient structure and support in their lives. It was her view that both children would greatly benefit from the structure and organisation, particularly in respect of their education and support for X’s special needs, which Mr Holden was in a better position to provide.
As a consequence, Ms P recommended that both children attend upon a suitably skilled therapist to assist with emotional regulation and anger management and to explore strategies to help support development of their social skills. She was concerned that Y was at risk of developing mental health issues in adolescence and was disturbed by reports from Ms Mount of him behaving in an angry and explosive manner.
Ms DuBarry, in her role as independent children’s lawyer, discussed Ms P’s report and subsequent evidence with each of the parties. She was concerned about the implications of an abrupt change in the children’s living arrangements, as was Mr Holden.
Ms P also considered that more evidence was required in respect of Ms Mount’s psychiatric health and how it could be better managed. In this context she explored with the parties the possibility of the children concerned undergoing the process of family therapy recommended by Ms P.
Both parties expressed themselves as being interested in exploring these possible interventions. Mr Holden was anxious that his time with the two children be resumed as quickly as possible. He also wished to avoid further acrimony with Ms Mount if this was possible. Ms Mount wished to avoid the possibility of a major change in the children’s living arrangements.
In this context, the parties agreed to the following raft of orders:
“The parties do all such things as may be necessary to arrange for the children X born (omitted) 2004 and Y born (omitted) 2005 and themselves to attend upon a psychologist working at (omitted), in order to assist the children and their parents with:
a. Emotional regulation and anger management exhibited in each of the children from time to time;
b. The children’s challenging behaviour towards each of their parents from time to time;
c. Developing strategies to support social skills development in each of the children;
d. Possible changes to the children’s school and/or living arrangements and how to support the children if this is to occur;
e. Support for X to assist in a move from his current school and a time frame for that to occur; and
f. Separate and individual sessions with Y to address the issue of his sense of responsibility for issues arising within the family and his wellbeing generally.
NOTING the above issues are not intended to prevent the appointed psychologist from discussing whatever issues might be deemed appropriate when working with the family.
The mother provide a report from a suitably qualified psychiatrist who has a full and in-depth knowledge of her mental health issues, if possible within 60 days from the date of these orders.
An updated Family Assessment Report be prepared by Ms P no earlier than 1 December 2016, with Ms P be at liberty to contact (omitted) with a view to ascertaining some information as to the progression and efficacy of therapy work undertaken, NOTING (omitted) intend the content of the therapy to be confidential.
During the period of adjournment the parties make all necessary inquiries regarding alternative school enrolments for X given the child’s special needs and the views expressed in court by Mr R.”
It was also agreed that Mr Holden would recommence his time with the children, spending time with them on alternate weekends and for half of each school holidays. Ms P needed a little more time to write her report. In addition the counselling took longer than anticipated.
As indicated above, this process of therapy has not had the outcome desired by Mr Holden particularly. Since it concluded, he has spent modest time with X and practically no time with Y. The reasons for this are controversial, but it is Mr Holden’s perception that Ms Mount has attempted to influence the outcome of this process to satisfy her own emotional needs.
Mr R’s evidence
The independent children’s lawyer arranged for Mr R to give additional oral evidence to the court. Mr R indicated that X was in a year 6/7 class but his level of academic ability was as a year 1 student. Mr R indicated that X could read and write at a very basic level and had the ability to undertake simple arithmetical tasks, such as simple addition and subtraction.
At (omitted) School, X was in a class of thirty. In 2016, he was the only child with autism. As such, he was entitled to government funded support, from a school support officer, for only one lesson of fifty minutes per day.
Mr R indicated that X would listen during lessons but would be unable to complete any task given to his class following the lesson, unless the task assigned to X, had been very significantly modified from what was presented to his class mates. Mr R doubted that X would ever be able to catch up with his chronological class mates in terms of doing classroom work.
Mr R indicated that (omitted) School was an (omitted) school, which prided itself on the depth and quality of the pastoral care provided to its students. When X arrived at (omitted) School, Mr R noted that his personality was very aggressive and his behaviour was frequently disruptive. However, it was Mr R’s impression that X’s behaviour had significantly improved, since his time at the school, which he (Mr R) attributed to the supportive environment there. He indicated that X was accepted by the other students and not subject to any bullying.
Mr R also noted that during 2016, X’s attendance at school had been markedly improved. In this context, he indicated that the school had had more involvement with Ms Mount than Mr Holden and she had been counselled in respect of ensuring X attended school regularly.
Mr R confirmed that (omitted) School’s fees were then around $4,000.00 per annum (I understand they have now increased). Significantly, in the context of X, he indicated that his parents were not getting good value for money in respect of the payment of these fees, as X was, in reality, not receiving an education from (omitted) School, particularly as he was not getting the level of support, which he required on a day to day basis in the classroom.
In this context, it was Mr R’s evidence that X would receive significantly more support, in respect of the provision of SSO resources, if he attended a government funded school. In these circumstances, notwithstanding Mr R’s professional pride in his school, he recommended that X attend school elsewhere, which he further indicated was not a recommendation which he made lightly.
Essentially, Mr R considered that X would benefit, if he was able to attend a school, which was able to specifically cater for his needs, which (omitted) School did not. Mr R did however concede that X was a child who liked structure and would not benefit from surprises. However, Mr R opined that X was likely to get at least three times more SSO support, at a government school than at (omitted) School, which was what he needed to receive any benefit at all from attending school.
During the most recent hearing, Mr Holden indicated that it was his understanding that during 2017, whilst continuing to attend at (omitted) School, X had had the assistance of an SSO for three classes per day. Ms DuBarry confirmed that this was the case but the situation had come about because a significantly disabled student, who suffered from Down Syndrome had begun to attend at (omitted) School. In effect, X had been able to piggy back on this child’s funding. However, Mr R did not believe that the funding could be continued indefinitely. As a consequence, he remained in favour of X seeking his education elsewhere.
Developments since August 2016
As ordered by the court, Ms Mount underwent a psychiatric examination, undertaken by Dr M in September of 2016. Dr M diagnosed Ms Mount as suffering from a chronic adjustment disorder with depressed and anxious mood. He also noted as follows:
“Ms Mount has a number of unhelpful personality traits. I note she described herself as normally being a worrier and she said that in general she depends a lot on others. She has a limited repertoire of adaptive coping mechanisms. Over the years she has tended to have difficulty coping and she has had difficulty being assertive.
…
In my opinion, Ms Mount loves her children but it is important to note that one of Ms Mount’s children is described is having Autism Spectrum Disorder. Ms Mount has a limited capacity to cope because of her personality structure. I note a history of significant absenteeism from school and I agree with Ms P that this is concerning. I am also concerned that Ms Mount had difficulty describing appropriate routines for her children and that she doesn’t limit the amount of television the children can watch. In my opinion, Ms Mount is at risk of becoming overwhelmed. If the children are to remain in Ms Mount’s care, I would recommend she be supported in parenting her children and I would also recommend that Ms Mount be closely monitored to ensure that she is satisfactorily parenting her children and that their absenteeism from school does not increase.”[6]
[6] See psychiatric report of Dr M dated 1 September 2016 at page 16, 18-19
Initially, the orders of 10 August 2016 were implemented successfully and the children resumed spending time with their father. There were some controversies between the parties regarding the funding of the proposed therapy at (omitted), particularly how the gap between the Medicare rebate and what was actually charged for the therapy would be met. This delayed the therapy and added to tensions between them. However, these difficulties were eventually overcome.
Ms P completed the update of her report in early January of 2017, after having interviewed the parties and observed the children in December of 2016. Ms P also interviewed Mr M. To Ms P, Ms Mount reported that Mr M had indicated to her that he believed she would continue to struggle to meet the needs of the children.
In this context, he had apparently recommended to her that she should have a break from parenting for approximately six months. Ms Mount was concerned that this would have significant financial implications for her and might require her to change her residence, as her Centrelink benefits would be reduced.
Mr Holden reported that his presumption of time, with the children, had gone reasonably well, but Y continued to be oppositional, telling his father that he hated him and wanted to live with his mother.
Ms Mount reported to Ms P that Y did not want to spend overnight time with his father and had experienced panic attacks when thinking about him. Ms Mount attributed Y’s anxiety to his fear that he might have to live with his father as a consequence of these proceedings.
Mr Holden reported to Ms P that since X and Y had begun to attend individual sessions at (omitted), their behaviour and ability to regulate their emotions had improved. Ms Mount too had found the interventions at (omitted) to be helpful.
Mr Holden conveyed his concern that X and Y continued to stay up late on school nights, whilst in their mother’s care. This was also identified by Mr M, as being an area requiring improvement, as he was concerned that the children were sleep deprived.
A number of other concerns were identified in respect of the children:
·The children continued to behave in a sexually inappropriate manner to one another;
·The children were abusive towards their mother and then loving;
·It was concerning that this behavioural cycle would provide the children with an incorrect message that this behaviour was acceptable and ultimately provide the children with poor role modelling.
In interview with Ms P, although Mr Holden had many criticisms of Ms Mount as an inattentive and inconsistent parent, he conceded that Y had a stronger attachment to her than to him. He denied Ms Mount’s allegations that he did not maintain a hygienic household for the children.
Ms Mount reported to Ms P that the children continued to disclose to her that Mr Holden was overly strict. As a consequence, she reported that Y was scared of his father and felt that Mr Holden picked on him. Something Mr Holden denied.
Again, the children were observed to interact with each of their parents in a warm and emotionally responsive way. X was observed to be relaxed with his father and Y to sit very close to Mr Holden and to engage freely in discussion with him.
In interview with Ms P, Y was able to provide a level of information about the proceedings, which was concerning. In particular, Y was worried at the possibility of both his father and mother being considered unfit parents which would result in the children being placed into foster care.
Y indicated his view that he did not wish to live with his father. He expressed the feeling that Mr Holden prioritised X. Y indicated that he wanted to live with his mother and that when he was with his father he felt, “like the angriest person in the world”.
Again, Ms P discussed X’s continuing attendance at (omitted) School with the parties. She reported as follows:
“In regards to the possibility of X changing school, Mr Holden conveyed his opposition. Mr Holden recounted in November 2016, he attended the school camp with X which was a three day and two night trip. The father observed X’s interactions with classmates to be positive with no evidence that X is being bullied. At the school camp, X chose to stay with Mr Holden in Mr Holden’s cabin. Mr Holden seemed understanding of X’s decision. Further, he noted that school staff was very supportive of X’s needs during the school trip. Mr Holden concluded that X had a ‘great time’. The father stated that the school camp had appeared to assist X to ‘gel’ more with his peers. Mr Holden noted that X is familiar with (omitted) School and that changing the child’s school would be counterproductive to X’s development and schooling. In addition, Mr Holden noted that the schools which Ms Mount had suggested for X to attend were too big for X. He posited that X would likely feel overwhelmed at a large school. In regards to X’s social integration at school, Mr Holden recalled that approximately one week prior to the school camp, X was absent for approximately three to four days and upon his return, approximately six class mates had presented X with a tree-house that they had re-built for him. Ms Mount advised that at the time of this Assessment, X changing school was not as pressing an issue.”[7]
[7] See updated family report dated 13 January 2017 at page 12
Accordingly, at the time of the provision of the second report, issues in respect of care arrangements for the children remained both fluid and challenging. Both parties reported a positive outcome from the (omitted) therapy, particularly in respect of their ability to communicate effectively with one another, which was considered to be essential given X’s special needs and Y’s worrying behaviour. In this context, both Ms P and Mr M had given some thought as to whether this improvement in communication would be sufficient to found a week about regime for the children.
However, at the time of her second report, Ms P considered that it was premature to make any such final recommendation, given the therapeutic process was ongoing. Ms P’s evaluation of the family can be summarised as follows:
·Concerns remained regarding both parties ability to adequately attend to the children’s needs, on a consistent basis;
·X and Y presented as emotionally vulnerable children, who required the support of both parents;
·Y experienced symptoms of anxiety, in the context of his relationship with his father;
·X and Y were capable of exhibiting quite extreme behaviour from time to time;
·Mr Holden continued to present as the more capable parent in terms of providing routine and appropriate behaviours for the children;
·However, if the children were directed to live with their father, it was highly probable that they would externalise an extreme emotional response;
·The children did not have sufficient emotional resilience to manage dramatic changes to their care arrangements;
·Concerns continued in respect of the children’s attendance at school whilst in their mother’s care.
The arrangements for Mr Holden to spend time with the children broke down completely following the release of the updated report, leading him to commence a contravention application and ancillary proceedings in March of 2017. Mr Holden was concerned that Ms Mount was motivated by financial concerns and her likely anxiety at the prospect of there being a significant change in the children’s care arrangements had led her to inappropriately influence the children against him.
It was the mother’s position that the children, particularly Y, had become extremely oppositional to spending time with their father and she was not in a position to either persuade or direct them to visit him. In this context, it was asserted that the children had indicated to Mr M, during the course of the therapy, their strong opposition to spending time with their father.
As a consequence of these matters, with the acquiescence of the parties themselves, I requested the independent children’s lawyer to obtain a report from Mr M, if he was prepared to release such a report, together with his video tape interview with the children.
It was thereafter envisaged Ms P would view this material to ascertain whether it would change her view that there was a possibility that the parties could, with extensive support, work towards a shared care regime, which from her perspective, would be the best outcome for the children. This was the background to the June hearing.
On 28 April 2017, Mr F provided the court with a report from Mr M, which detailed his involvement with the family. Particularly the process through which he had canvassed the views of X and Y. In this context, Mr M opined that both children were strenuously opposed to being forced into spending time with their father but for different but equally valid reasons.
In respect of Y, Mr M wrote as follows:
“Y is deeply implicated in and influenced by his mother’s longstanding emotional and mental health issues and is very loyal to her and her position in this matter. Clearly these matters have been discussed with him, almost certainly by his mother and grandmother. He genuinely feels that his mother is badly treated and oppressed by Mr Holden and will have nothing to do with him because of this.”
In this context, Mr M conceded that Y had been unduly influenced by his mother and this was unfortunate. However, in Mr M’s view, this influence was overshadowed by the child’s deep and abiding attachment to his mother. Essentially the more Y perceived his father to be critical of the mother the more Y was driven towards the maternal side of his world.
So far as X was concerned, Mr M wrote as follows:
“X’s position is quite different and not tinged with the same order of attachment and loyalty to Ms Mount and his maternal grandmother. My understanding from X is that he will not be “forced” into a relationship with his father by anyone including his mother and Ms Y. He demands the right at his age and stage of life to make his own decision about his relationship with Mr Holden and has dug his heels in over this issue and in my opinion there will be no shifting him in this regard.”
In this context, Mr M indicated that he could see no point in Mr Holden attempting to force the children into having a relationship with him as such efforts would only be counter-productive. Mr M was also highly concerned at the level in which Y had become involved in his mother’s emotional and mental health difficulties, which he considered would not be helpful to Y’s further development.
Ms P was called back to court to give evidence in respect of these developments. She had read Mr M’s report and had also viewed the video record in which the children had provided their forthright views to Mr M. She agreed with Mr M’s conclusion that there was no utility in attempting to force the children into spending time with their father, at this stage.
This was the perplexing background to the resumption of the case on 11 September 2017. As previously indicated, after he had completed his evidence, Mr Holden elected to adopt the proposals of the independent children’s lawyer, which envisage the children only spending time with him subject to their wishes.
Although Mr Holden is somewhat jaundiced about the process which has led to this point, to his great credit, he acknowledges that the children’s views have some validity and there is no point in attempting to compel the children to spend time with him.
In addition, to his great credit, he resolutely rejects any suggestion that the court should attempt the draconian mechanism of immediately placing the children in his care so that they can have some form of relationship with him. Accordingly, this leaves only the issue of X’s place of schooling which remains an issue of great moment to Mr Holden.
The Legal Principles Applicable
Although these proceedings concern a discrete issue and the parties have agreed on many other matters relevant to the care of X and Y, the same legal principles apply to the resolution of the schooling issue as would apply to more complex issues, such as where and with whom the children should live predominantly.
Part VII of the Family Law Act deals with orders relating to children. Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration [Family Law Act section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out in the Family Law Act at section 60CC.
Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s interests will be best served in proceedings before it. They are designated as primary considerations and additional considerations.
There are two primary considerations, which are set out in section 60CC(2)(a) and (b), namely:
(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.
Other criteria, relating to how a court is directed to consider how the best interests of any child concerned may be served by any order which the Court makes, are set out in section 60CC(3). These criteria are categorised as additional considerations. There are fourteen such criteria.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[8]
[8] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[9] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[10]
[9] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[10] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
The additional considerations include such matters as any views of the children concerned, subject to their maturity; the parental insight of the parties concerned; the effect of any change in the circumstances of the children concerned; any idiosyncratic characteristics of the child concerned; and the capacity of the parents to supply the educational and emotional needs of any relevant child. Although there are other considerations, these appear to be the most relevant ones to the resolution of the current matter.
In this context of the application of these various matters, it is also necessary to consider section 60B(1) of the Act, which sets out the principles and objects of the legislation as it relates to children. They include the following:
“(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.”
The principles, which underpin these objects, are set out in s.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).”
These objects and principles provide the underlying ethos of the Family Law Act and are designed to ensure that the court applies the best interest considerations in a constructive way designed to ensure the optimal outcome for the child or children concerned.
In a case, such as the current one, I would anticipate that both parties would argue that for X to achieve his full potential it will be necessary for him to attend the school advocated by him or her. From Mr Holden’s perspective, X will be happier at (omitted) School; from Ms Mount’s perspective X will receive more of an education at (omitted).
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.
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
Consideration
Regrettably, the parties are unable to agree on which is the best school for X to attend. I can understand why this is so. For all sorts of complex reasons, there is currently no viable parenting relationship between them. The current proceedings have only served to deepen the rift between them.
In my view, the issue at hand is a delicate and closely balanced one. Both parties are in a position to muster powerful arguments in support of their respective positions. In addition, the issue is one replete with emblematic significance for both of them, given the conflicted nature of their relationship and Mr Holden’s fear that he is being removed as an active factor in the children’s lives.
From his perspective, he has compromised his position in respect of a great many issues to do with the care of the children because of his desire to avoid conflict with Ms Mount and to focus on what is best for X and Y. As such, it is his position that his views in respect of what is best for X, in an overall sense, must be given a great deal of credence by the court because of the significant level of compromise which he has accepted.
In this context, the issue of X’s school is of fundamental importance to him. Accordingly, I accept that he has not adopted his position in respect of (omitted) School for any other reason other than that he fervently believes it is the best educational option for X and it would be emotionally disastrous for him to leave it. Certainly I accept that he is not doing so in order to satisfy any ulterior emotional agenda or to make things difficult for Ms Mount.
As a consequence of the agreement between them, the parties have determined what is the minimum level of relationship at the present time which X and Y will have with their father. There are to be different regimes for each child, reflecting Mr M’s opinion that the children are resistant to spending time with their father for different reasons.
Y will spend four hours, once a month, with Mr Holden, with the intention that he (Mr Holden) will take Y to a child focussed, but non-controversial activity, such as a movie or restaurant, subject to Y’s agreement. The intent being that the two can engage in some non-threatening activity with the intent that it will lead to the repair of the relationship between the two of them.
X has indicated his willingness to spend time with his father, once the litigation between his parents is concluded. In this context, it has been agreed that he will spend an extended weekend, on alternate fortnights, with X. Again, this time is subject to X’s agreement.
Although, particularly in Y’s case, this time cannot be regarded as extensive, I am satisfied that it is the best arrangement currently available to ensure that the children have some level of meaningful relationship with their father.
The parties have also agreed that neither will denigrate the other in the presence of the children. I am also satisfied that the orders as agreed properly attend to all protective concerns arising in respect of the children. I consider that the orders do reflect the best interests of the children. They are subject to a notation that Ms Mount will encourage and support the children spending time with their father.
In her recent affidavit material, Ms Mount has deposed as to her impression of feeling bullied by Mr R in some of her interactions with (omitted) School. This most recently occurred, in late May of this year, when X apparently indicated to school staff, that he wanted to spend some time with his father.
Mr R apparently indicated to Ms Mount that he regarded himself as being X’s advocate in this regard. Ms Mount considered that Mr R was interfering in her matter, which should not have been his concern. One reason, X wished to see his father, was that he apparently wished for Mr Holden to buy him a new (omitted) School blazer.
It is my impression that Ms Mount and (omitted) School have had, at times, an uneasy relationship with one another. In part, this has stemmed from the difficulties, which Ms Mount has experienced, in the past, in getting X to school regularly. In addition, it is my impression that Ms Mount has been anxious at the prospect that she might be deemed liable for X’s outstanding school fees.
In these circumstances, it is Ms Mount’s position that it would be a good thing, for all concerned, if X was able to get a new start at (omitted) School. Currently, X’s school fees, which are forwarded to Ms Mount, are $4,895.00 in arrears. Ms Mount has no way of paying this sum.
Mr Holden has consented to an order that he pay the outstanding sum and all further fees to be incurred. However, from Ms Mount’s perspective, given the disposition of her personality, I can understand why the issue of the fees makes her feel anxious. It is also her case that, apart from the fees, there are many incidental expenses relating to X attending at (omitted) School, which she struggles to pay. I can also understand why she does not have an easy relationship with Mr R.
I have been provided with a copy of X’s most recent school report from (omitted) School. The general comment is as follows:
“X’s made a conscientious effort to participate fully in his functional curriculum and apply himself with enthusiasm. This has resulted in academic growth throughout this semester. His involvement in sport’s day was commendable and he showed commitment to compete in all of the novelty events. X is encouraged to persevere and to engage further in class discussions and continue to involve himself in house activities.”
X’s performance in eight subjects has also been graded, on an A to D basis, with A indicating consistently very high achievement; B high achievement; C competent achievement; and D partial achievement. X has mostly been graded with B’s and C’s.
However, a letter from the school indicates that students, who are on a modified program and supported by the school learning support teams, do not have their assessments shown relative to their peers, these gradings are idiosyncratic to X.
In respect of attributes relating to pastoral care, including under the headings of behaviour; responsibility and (omitted) School Contributions; X is only rarely or sometimes found to have met the necessary standard. The only criterion on which he is often found to have achieved is abiding by the college uniform policy.
In all these circumstances, I am not in a position to reject Mr R’s evidence that X is struggling at (omitted) School, in the absence of consistent SSO support, which the College cannot guarantee consistently, although it is providing more at present than it has done previously.
In respect of his continued attendance at (omitted) School, Ms Mount deposes as follows:
“I do not consider that this is in X’s interest to continue at the school. It is my experience that (omitted) School is a school focussed on high academic and sporting achievements and that X is “left out” as a result of learning difficulties that he experiences and because he is not sporty or well-coordinated. … X’s academic achievement is below the rest of his class and I consider that X would be much happier and enjoy school a lot more if he attended a school where he felt he was able to achieve well at school and where X would get specialised teaching assistance for children with learning disability.”[11]
[11] See mother’s affidavit filed 28 August 2017 at paragraphs 87-88
Mr Holden acknowledges that X’s special needs are extensive and he will always struggle in a school setting. However, he believes that X is capable of continuing at school to Year 10 and possibly moving onto some form of technical training thereafter. In the longer term, Mr Holden believes that X could pursue a trade. His personal aspiration is that X could become an (occupation omitted) like his father.
It is also Mr Holden’s view that X is happy at (omitted) School, where he is accepted by his peers and liked. Accordingly, Mr Holden submits that it is X’s wish to remain at the school. Mr Holden recently purchased X a blazer. In Mr Holden’s words, “X is as pleased as punch when he is wearing his blazer”. The implication being X strongly identifies as being a member of the (omitted) School community of students.
In addition, the recent family report points to X’s positive experience, with his father, at a (omitted) School camp and his delight when some of his classmates re-built a tree house for him following a period of absence from school. These factors point to X being accepted as a member of the school community.
I agree that these are significant matters. However, at this stage, I am not in a position to assess accurately what are X’s views about school, particularly his level of insight in respect of the issue. From my perspective, the issue must be determined by reference to which school is likely to provide the greater support for X and assist him to achieve his full potential.
Mr Holden characterises himself as being the parent who is more capable of providing for X’s intellectual needs. In this context, he points to the fact that although X has recently been allocated funding under the NDIS, because of his special needs, Ms Mount has not fully drawn down upon the moneys available to him. Mr Holden also asserts that X has not been attending at (omitted) Disability Support Services, as often as he could.
The evidence indicates that the parties have been in dispute about issues to do with some aspects of X’s ongoing medical care. In particular, the parties disagree about the utility of him attending upon a chiropractor. It is not my role to resolve such issues which are controversial for many individuals in our society. In my view, what the dispute indicates is the compromised level of communication between the parties, which is unlikely to ameliorate in future.
In this context, it is Mr Holden’s position that, if he is excised from being an active presence in X’s schooling, his education is likely to become increasingly compromised as it will devolve more and more onto Ms Mount, who has been found wanting in the past in this respect. Mr Holden believes he has a viable relationship with the school authorities at (omitted) School, but may not, with the authorities at another school.
In addition, it is Mr Holden’s case that, in the past, Ms Mount has displayed a poor attitude towards X’s intellectual needs, which is demonstrated by her failure to ensure he attends at school regularly. In my view, there is significant substance to this criticism, which was the rationale for Ms P to recommend to the court consider a change in not only X’s but also Y’s living arrangements.
Clearly, Mr Holden is committed to (omitted) School and is prepared to outlay significant sums of money in this regard. I accept that (omitted) School is a good school but share both Ms Mount and Mr R’s concerns that it may not be totally suited for X because of his special needs, particularly for SSO support.
One of the more significant aspects of Mr Holden’s opposition to X changing school is his concern that the level of change which this will involve for X, will be emotionally destabilising for him. I accept that X is not a child, who is likely to adapt well to change and his response to any change, which is poorly planned or unacceptable to X, has the potential to be both unpredictable and possibly violent.
It also seems to be the case that X has a few mates at (omitted) School. This is a very important consideration, given X’s needs in respect of social situations. For all sorts of reasons, he is not a child who makes friends or engages in social activities easily. As such, I accept that changing X’s school comes with a significant component of risk.
The question, therefore, for the court, is whether any possible benefits for X outweigh the degree of risk for X from making the change. It is a difficult assessment to undertake because I have scant evidence from (omitted), as to the concrete benefits, which the school can offer X.
I accept that, in theoretical terms, (omitted) School should have access to greater funding for special needs children and this should equate to more SSO support for him. However, I have got this evidence only from Mr R, who cannot speak directly for the South Australian Education Department directly.
I do, however, have Mr R’s evidence, which candidly indicated that the parties were wasting their money sending X to (omitted) School and he would be much better off at a government funded school. This is significant evidence indeed from a person who would not lightly suggest a government funded school was better than his own, in any capacity whatsoever.
What concerns me is that I do not have a similar on the ground assessment of what (omitted) School can provide from one of its staff members, particularly a senior staff member, equivalent to Mr R. In this sense, I am, to a certain extent, moving blind, in respect of what is obviously a very important issue for X, with many long term implications for him.
Mr R has categorically deposed that (omitted) School cannot provide the best level of education potentially available for a child, with special needs, such as X; whereas the government funded system can. For this specific reason, notwithstanding my reservations and my sympathy for Mr Holden, whom I regard as a well-motivated parent, I have decided to accept the submissions of Ms Mount and Ms DuBarry and determine that X should attend (omitted) School from the commencement of the 2018 academic year.
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 one hundred and sixty five (165) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 22 September 2017
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