Hooper and Hayston
[2011] FMCAfam 1466
•15 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOOPER & HAYSTON | [2011] FMCAfam 1466 |
| FAMILY LAW – Children – child’s school – best interests of the child – child aged 5 years and 5 months commencing school in first term 2012 – choice of school – where each parent prefers a different school – what school should the child attend? |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 64B, 65DAA |
| Re G: Children’s Schooling [2000] FamCA 462 (2000) Fam LR 143; FLC 93 – 025 Korman & Henderson [2011] FMCAfam 1286 |
| Applicant: | MS HOOPER |
| Respondent: | MS HAYSTON |
| File Number: | SYC 7876 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 12 December 2011 |
| Date of Last Submission: | 12 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 15 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Othen |
| Solicitors for the Applicant: | Meyer Partners Family Lawyers |
| Solicitor for the Respondent: | Mrs Munk |
| Solicitors for the Respondent: | Matthews Folbigg Pty Ltd |
ORDERS
That the Applicant and the Respondent do all acts and sign all documents necessary to enrol the child [X] born [in] 2006 at [U] School to commence in Term 1 2012.
That the parties are restrained from enrolling the child at any other primary school unless as agreed by the parties in writing or by further order of the Court.
IT IS NOTED that publication of this judgment under the pseudonym Hooper & Hayston is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7876 of 2007
| MS HOOPER |
Applicant
And
| MS HAYSTON |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application in a Case concerning a single issue, which school should be attended by the parties’ child [X], who is five years old. [X] is due to start school at the beginning of the first school term in 2012, which commences on Monday 30th January 2012.
The Applicant’s choice is [D] School.
The Respondent’s choice is [U] School.
Background
The parties commenced living together in December 2004. They have one child, [X], who was born [in] 2006. The Respondent is the child’s biological mother.
On 8th February 2008 the parties entered into consent orders providing that the child would live with both of them and that the Applicant and the Respondent would have equal shared parental responsibility for him.
The parties separated on about 23rd April 2010.
On 28th January 2011 the Applicant commenced proceedings for parenting orders in this Court. The Application has been listed for final hearing 13th and 14th June 2012.
The Applicant filed her Application in a Case on 11th November 2011. The Application was returnable on 12th December 2011.
The Respondent filed her Response in Court on the return date of the Application.
Orders Sought
The Applicant seeks an Order:
That both parties do all acts and things necessary to ensure that [X] born [in] 2006 attend(s) [D] School commencing 27 January 2012.
The Respondent seeks Orders:
1. That the parties shall do all acts and sign all documents necessary to enrol [X] at [U] School commencing the school term 2012.
2. That the parties are restrained from enrolling [X] in any other primary school except as agreed in writing between the parties.
Evidence and Submissions
The Applicant relied on her affidavit of 10th November 2011.
The Respondent relied on her affidavit of 12th December 2011.
It is the Applicant’s evidence that she and the Respondent reached an agreement in mediation in May 2011 that the child would attend the [E] School when he started the school year in 2012. However, [X] was a “non-local applicant” for [E], meaning he did not live within the school’s catchment area, so the parties agreed that if [E] School did not accept the child’s application, then the preferred schools would be;
a)[P] School;
b)[L] School; or
c)[U] School.[1]
[1] Affidavit of Ms Hooper 10.11.2011 at paragraphs [12]-[13]
The Applicant believes that [X] was not accepted by [E] School, although she had not been informed of his non-acceptance. However, the Principal had said to her in August that:
“Because [X] is a non-local applicant, it is highly unlikely that he will get a place at [E] for next year. In the event that a place becomes available, you will be contacted right away.”[2]
[2] Ibid at [22]
The Applicant has since found out that another parent has been told of her child’s acceptance.
The Applicant sought to enrol the child at [P] School but was told that the school was full and would not be taking any non-local applicants in 2012.
The Respondent emailed the Applicant in August and told her that she no longer wanted [X] to attend [E] but wanted him to go to [U] School in 2012.
The Applicant deposed that she met the Principal of [U] School to obtain more information about the school. The Applicant states that some of the things the Principal told her about the school troubled her, in particular:
“There are no other same-sex families in the school”
“There is a school counsellor for only half a day a week”
“It has a small student population”
“The playground is all inclusive”.[3]
[3] Affidavit of Ms Hooper 10.11.2011 at [33]
The Applicant then made inquiries about [D] School and found the following information on the school website, all of which impressed her:
It has a population of around 500 students.
It has a strict anti-bullying policy and procedures in place for dealing with bullying behaviour.
It has an inclusion policy which aims “to redress any mechanisms which might exclude children from equal access to, participation in and outcomes of schooling based on language or culture, gender, physical, intellectual or emotional state or socio-economic status”.[4]
[4] Ibid at [36]
The Applicant deposes that there are various features about the school which convinced her that [D] School was a better schooling option for [X] than [U]:
a)There are other students with same-sex parents and there are staff members who are same-sex attracted;
b)The school has opportunities for gifted students;
c)There is a school counsellor at the school two days each week;
d)There is an anti-bullying policy and a safe playground policy;
e)There are music lessons available after school;
f)The school has a comprehensive music, dance and drama program;
g)There are separate play areas for kindergarten-Year 2 children and Year 3-Year 6 children; and
h)The school has a strong sense of community.
[D] Public School has accepted the child’s application to attend the school in 2012.
It is the Respondent’s evidence that when she and the Applicant canvassed the issue of the child’s school for 2012 they agreed that if the initial schools were not available for him then he would attend [U] School or, “a last option, [L] School”.[5]
[5] Affidavit of Ms Hayston 12.12.2011 at paragraph [5]
The Respondent went on to depose:
It was not contemplated by myself nor the Applicant that [D] School would be a suitable school for [X].[6]
[6] Ibid at [5]
The Respondent deposed that she has now completed her study for the degree of [omitted] and will therefore be qualified to undertake [omitted] in 2012. As part of her course, the Respondent has worked as a [omitted] at various schools, including [U] School and has undertaken [occupation omitted].
The Respondent sets out in her affidavit the reasons why she believes [U] School is a suitable school for [X]:
a)It is a smaller school comprising about 120 students;
b)There is a counsellor available for half a day each week, which is commensurate with the size of the school;
c)There are two reading recovery teachers to assist struggling students on a one to one basis where necessary;
d)The school has composite classes, which the Respondent believes will be “a positive” for the child;
e)The school has a gifted and talented program;
f)The school has smaller class sizes than those at [D] School;
g)The school has a special education teacher; and
h)The school is located approximately 2 minuted from my residence at [E].[7]
[7] Affidavit of Ms Hayston 12.12.2011 at [42]
The disadvantages that the respondent identifies at [U] in comparison with [D] are that:
a)The physical presentation of the school does not present as green and leafy as [D] School nor does it offer as much outdoor learning as [D]; and
b)[U] does not offer before and after school care on site – children are taken by mini bus to [M] School.
Submissions
Counsel for the Applicant, Mr Othen, submitted that the Court should consider that both parties work and they need to make use of after school care. [D] School has after school care on the premises but [U] has not. The children go by bus to [M] School, which takes time and is inconvenient for both parties, as neither party resides in [M]. It was conceded that [U] is between the parties’ homes and does not involve either party going out of their way.
It was relevant that the Respondent selected [U] School and enrolled the child at [U] unilaterally.
The Mother’s solicitor, Mrs Munk, submitted that there was no social science available to the Court, no evidence that it is better to go to a school where there are other children with same sex parents.
As to the question of travel, Mrs Munk submitted that the distances were relatively short. The Respondent will be doing the majority of the travelling. Most mornings she takes the child to pre-school.
It was further submitted that the issue impacts more on the Respondent more than on the Applicant. The child sleeps at the Respondent’s home on ten nights per fortnight.
Mrs Munk submitted that there was an agreement, which the Applicant no longer supports. The parties had agreed some time previously that [U] was a school that the child could attend, although it was not their first choice.
In reply, Mr Othen submitted that the Applicant would be responsible for picking up the child on eight days a fortnight. [D] is between the two parties’ homes.
The Relevant Law
When the Court is making a decision about the proper school for a child to attend, it is not the case that there is any presumption that favours acceding to the proposal that the parent with whom the child is living. The Court must consider the best interests of the child concerned, by having regard to the objects of Part VII of the Family Law Act and the principles underlying Part VII, as set out in s.60B of the Act (see Re G: Children’s Schooling[8] at [65]-[75]).
[8] [2000] FamCA 462; (2000) FLC 93-025
It is always the case that in making a parenting order the Court must consider the best interests of the child concerned (s.60CA). The Court determines what is in a child’s best interests by considering the matters set out in subsections 60CC(2) and 60CC(3), where relevant.
I am satisfied that orders relating to the particular school a child is to attend are parenting orders, as defined in subsection 64B(2) of the Act:
(i) any other aspect of the care, welfare and development of the child or any other aspect of parental responsibility for a child.
Thus, the Court has an obligation under s.61DA to apply the presumption that it is in the child’s best interests for his parents to have equal shared parental responsibility for the child. The Court should also consider whether it is in the child’s best interests and reasonably practicable for the child to spend equal time with each parent (see subsection 65DAA(1)) or, if the Court decides otherwise, the Court must then consider whether it is in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent (subsection 65DAA(2)).
Conclusions
This particular application has concerned a single issue, the question of the child’s school. Even so, it is parenting matter and the
Court should apply the presumption that it is in the child’s best interests that his parents should have equal shared parental responsibility for him (s.61DA(1)). In this case, there is already a consent order that provides that the parties should have equal shared parental responsibility.
There is no evidence before the Court that would lead to a finding that the presumption does not apply because of abuse or family violence (subsection 61DA(2)) or that it would not be in the child’s best interests for the parties to have equal shared parental responsibility (subsection 61DA(4)).
Under the present arrangements, the parties each have substantial and significant time with this child. It is not quite equal time and there is no evidence before the Court that would lead to a finding that it would be in the child’s best interests to vary the current care arrangements on an interim basis to provide for a strict equal time arrangement.
Although the parties have separated and are currently engaged in litigation, with a final hearing in June 2012, the evidence suggests that it is of benefit to [X] to have a meaningful relationship with both parties. There is no evidence of any risk to the child of physical or psychological harm from abuse, neglect or family violence. There is no family violence order in force.
The parties disagree about the future school for [X], but they appear to be able to express their disagreement in a mature and reasoned manner, each one considering that her choice of school is in the child’s best interests.
The fact is that both schools, on the evidence before the Court, would appear to be adequate to meet the needs of a five year old child who is starting school in January 2012. The application has been heard as an interim hearing, so no evidence has been tested by cross-examination, but even if it were it is unlikely that the court would be in a much better position to decide between them.
The child must go to school somewhere at the beginning of the school term. The parties had agreed that [U] School would be one school that the child could attend if [E] were not available, which has turned out to be the case. It is conceded that [U] was not the parties’ first choice, but a fallback position.
It is only recently, however, that [D] School has come into consideration. The evidence is not sufficient to persuade the Court that it is so much better a school for the child than [U] that it must be preferred. Interestingly, some of the factors that the Applicant sees as a disadvantage, like the smaller numbers and the availability of a school counsellor for half a day each week, the Respondent sees as an advantage.
There is no evidence that supports the proposition that it would be better for the child to be in a school where there are children with same-sex parents or where there are staff members who are same-sex attracted. Even if there are not, this situation could change. There are, after all, in the wider community, some children who only live with one parent or who live with their grandparents, or an aunt.
As children grow up, they must come to learn that not all children live in a household with their mother and their father; there may be a different arrangement. What is important is that children live with adults who love them and care for them.
The distances between the schools and the parties’ homes are not great. It is to my mind an advantage, however, for this child to go to a school which is only a couple of minutes away from the home of one parent, which is the case with [U] School and the Respondent. I expressed similar views in a recent decision, Korman & Henderson[9] at [92].
[9] [2011] FMCAfam 1286
For these reasons, I am of the view that the child [X] should commence his schooling at [U] School.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 9 January 2012
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