Hong and Chung

[2007] FamCA 289

FAMILY COURT OF AUSTRALIA

HONG & CHUNG [2007] FamCA 289

FAMILY LAW - CHILDREN - Child related proceedings - Schooling

Family Law Act 1975 (Cth)

APPLICANT: Mr Hong

RESPONDENT: Ms Chung

FILE NUMBER: SYF 4610 of 2003

DATE DELIVERED: 6 February 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Johnston JR

HEARING DATE: 6 February 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Duncan, M Duncan & Associates

SOLICITOR FOR THE RESPONDENT: Mr Reeve, Marsdens Law Group

Orders

1. That paragraph 9 of the father’s Application in a Case filed on 12 January 2007 is dismissed.

1. That the parents continue to do all things and sign all documents necessary to maintain the enrolment of their son born in June 2002 at the C Public School pending further order.

1. That the parties are given leave to approach the List Manager and request allocation of the first date in the Less Adversarial Trial system in respect of their substantive proceedings.

1. That the mother’s application for costs is dismissed.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4610  of 2003

Mr Hong

Applicant

And

Ms Chung

Respondent

REASONS FOR JUDGMENT

1. This is an application by Mr Hong, to whom for convenience I shall refer as “the father”, for an injunction which would restrain the mother, who is known as Ms Chung, from continuing to enrol the parties' child,  a son who was born in June 2002 at school, at C Public School.

2. The parties married in February 1998 and they separated in March 2003.  To their credit they asked this Court to make orders on 8 November 2005 to provide for the parenting arrangements in relation to the child and the Court respected that and made the orders in accordance with their agreement.

3. In very broad terms those orders provide that firstly the parties have joint responsibility for the long term and day to day care, welfare and development of the child.  The orders provide that the child live with the mother.  The orders provide defined contact, as it was then called, between father and son and that, again in broad terms, was every second weekend from 3 pm Friday to 6 pm Sunday; each Tuesday from 10.30 am to Wednesday 9.30 am until the child commences school and upon the child commencing school each Tuesday from 3 pm to Wednesday at 9 am.

4. Significantly, in terms of the dynamics of what has been happening between the parties, paragraph 15 of the consent orders provided for the father and child to have contact with one another for half of the New South Wales gazetted school holidays, excluding the Christmas school holiday period, the child to be with the father for the first half of the holidays in even numbered years and with the mother in odd numbered years.  Unfortunately, this has been interpreted differently by each of the parties and it seems to have been part of the driver for continuing litigation between the parties, which of course is a great pity.

5. Within a short time of the orders being made the father informed the mother that he wished to avail himself of contact with the child in accordance with that order and the mother declined that.  She took a different interpretation of that order.  Her interpretation was that the order would not commence operation until such time as the son started school, presumably on the basis that then he would be governed by those laws which provide for children during gazetted school holiday time to be on holidays.

6. That is not my view of what the order meant.  It seems to me on a plain interpretation of that order, that it simply provides the time during which the father and the child are to have contact in accordance with the orders.  The fact that it coincided with gazetted school holidays is really coincidental in the sense that it was probably a neat way of defining those times.  It is often the case that children who attend pre-school do not attend pre-school during gazetted school holiday periods and it would be consistent with what the situation would be once the child attended school.  In any event, as I have informed the parties, all that is really water under the bridge now.

7. So what has occurred is that the mother has enrolled the child at school and the child had its first day in school on 1 February this year.  Unfortunately the mother did not involve the father in that decision.  The father has been very upset about that and understandably so.  This is because under the Court orders father and mother have joint parental responsibility for the child.  One would have thought if ever there was a decision that ought to be taken jointly it would be decision about the child's schooling, particularly which school the child was going to attend and when that was going to occur.

8. In fact the father thought that the parties had an agreement which was embodied in a document which has been annexed to his affidavit which included a paragraph that the parents agree that the child would not start school until 2008.  There is some issue about whether that actually reflected an agreement between the parties.  It appears to have come into place during the course of mediation that the parties were doing at a Family Relationship Centre.  But be that as it may, I accept that from the father's point of view that was the position which he understood was going to prevail in relation to the child's schooling.  Instead of consulting the father about such an important matter, the mother went ahead without reference to him and enrolled the child at C Public School.

9. In her affidavit the mother gives some explanation about her reasons for doing that.  She said that she did not discuss the child's enrolment at the school with the father because she is unable to discuss things with the father relating to the child.  She says when she tries to discuss things with him they get into a heated argument, words are spoken which are unpleasant and stressful for her.  I suppose one can see, from her point of view, that it was simpler for her and certainly less unpleasant to do it in that way.

10. Whatever the situation might be in relation to that, the reality is that the child is currently going to school.  The mother’s reasons for enrolling him at school are, firstly that he is a normally developing, healthy and happy four year old child.  Secondly, he was at the C Pre-School and his friends at that school would be going into the kindergarten year at the C Public School.  From that I discern that the mother says that he has been with his peer group at the pre-school, members of the peer group were going on to the big school, being the  C Public School and she thought it was sensible to continue that.  The mother said the child expressed to her a wish to continue to have those relationships with his friends and in any event that he is excited about going to school.  The mother said that when upon considering those things, she discussed his progress at the pre-school with the child's teacher, M.  The mother said that she formed the view that he was ready for school based on the observations she made of him socialising with the children and the comments of his pre-school teacher.  She said that he is excited at school, that he has enjoyed school, and that in all those circumstances she says that she regards it as being in the child's best interests to go to the school.

11. Those are plausible and sensible reasons, in my view, in the absence of anything specific from a teacher, educational authority, child psychologist or other expert to the effect that the child is not ready to go to school.  In my view, those matters which the mother has included in support of her decision for enrolling the child at school, in my view prevail.

12. That is not to say that this was a good thing to do because I do not think it was a good thing to do.  For the mother to unilaterally act in the way that she has done has simply exacerbated the relationship between herself and the child's father.  That is not something which is in the best interests of the child.  The father has every reason to feel not only disappointed but frustrated and somewhat angry about this. 

13. Firstly, he said that he thought the child was too young to go to school and that is to be given respect.  He says that the effect of the mother acting in the way that she has, has deprived the child of any involvement by father in a milestone in the child's life, that is the first day at which the child enters school.  That is to be regretted and that is not something which can be replaced.  One has a very considerable amount of sympathy for the position that the father has been placed in, in respect of that matter.

14. It would be in the interests of this child for the parents to try and work out a way, difficult as it might be, to improve their level of communication and parenting.  This is a very young child, there is going to be a long way to go in terms of the parenting of this child.  Relationships between parents and children simply do not stop because the relationship of the parents broke down.  The parents are going to have him for life.  It is a long time.  There are going to be a lot of milestones, graduations from school, 18th and 21st birthday parties, marriages, possibly.  It is going to be difficult for the child if he is not able to involve each of the parents in each of those things.  That means it is in his best interests for the parents to try and put aside differences and frustrations with one another and try and work a way through.  That is really what facilities like the counselling that this Court offers and the Family Relationship Centres are set up to do, to try and assist parents to do that.  If the war goes on, this is not going to be something consistent with the son's best interests.

15. Having said that, and having formed the view that it is in the child's best interest to be able to continue school, the frustration about the school holidays now passes into irrelevance.  This is because there is now no uncertainty about what the orders will require.  That is that the child will spend half of each of the gazetted New South Wales school holidays, excluding Christmas, with his father. 

16. That leaves I think, the other matter which is what we are going to do about this ongoing litigation between the parties based on the new application for final orders. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the Reasons for Judgment of Judicial Registrar W P Johnston.

Associate:     ___________________

Date:              2 April 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as HONG & CHUNG