Howell and Garson (No.3)

[2017] FCCA 3343

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOWELL & GARSON (No.3) [2017] FCCA 3343

Catchwords:
FAMILY LAW – Schooling – whether there is a sufficient change in circumstance to warrant embarking on a hearing.

Legislation:

Family Law Act 1975 (Cth)

Howell & Garson (No.2) [2016] FCCA 3050
Marsden & Winch [2009] FamCAFC 152
Miller & Harrington [2008] FamCAFC 150
Rice & Asplund [1978] FamCA 84
Searson & Searson [2017] FamCAFC 119
SPS & PLS [2008] FamCAFC 16
Walter & Walter [2016] FamCAFC 56

Applicant: MR HOWELL

Respondent: MS GARSON

File Number: SYC 4888 of 2009

Judgment of: Judge McNab

Hearing date: 20 December 2017

Date of Last Submission: 20 December 2017

Delivered at: Melbourne

Delivered on: 22 December 2017

REPRESENTATION

Counsel for the Applicant: Mr Dickson QC

Solicitors for the Applicant: Kenna Teasdale Lawyers

Counsel for the Respondent: Ms Dellidis

Solicitors for the Respondent: Nicholes Family Lawyers

ORDERS

1. The application be dismissed.

2. The Applicant pay the Respondent’s costs fixed in the sum of $7,631 with a stay of 30 days.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Howell & Garson (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

SYC 4888 of 2009

MR HOWELL

Applicant

And

MS GARSON

Respondent

REASONS FOR JUDGMENT

(Delivered Ex-Tempore)

1. By an amended initiating application filed on 15 December 2017, the applicant father seeks interim orders in the following terms:

   (1)That at all times necessary be abridged to allow this Application to be heard as a matter of urgency, prior to Friday 8 December 2017.

   (2)The Applicant Father, Respondent Mother, and the child [X] (“[X]”) born (omitted) 2006, attend Ms L for the purposes of the preparation of a Family Report, with interviews for the Family Report to be held on Friday 5 January 2018.

   (3)The Family Report address the following matters:

   (a)The question of the school [X] should attend for the commencement of her secondary education in 2018;

   (b)Any views expressed by [X] and any factors (such as [X]’s maturity and level of understanding) that would affect the weight the Court should give on those wishes;

   (c)The matters set out in section 60CC of the Family Law Act 1975 and;

   (d)Any other matters that Ms L considers important to the welfare and best interests of [X].

   (4)Both parties be and are hereby restrained from discussing with [X] the question of her school attendance in 2018 pending attendance upon Ms L. 

   (5)Such further and other Orders as this Honourable Court deems appropriate.

2. An initiating application was filed on 14 November 2017, however, the application was refused by the registrar. 

3. The final orders that the father seeks are:

   (1)Order 1 of the Orders dated 7 October 2016 be discharged.

   (2)In lieu thereof, each party forthwith do all such acts and things necessary to enrol [X] (“[X]”) born (omitted) 2006 at School A (“School A”) and facilitate her attendance at that school from the commencement of Year 7 in Term 1 2018.

   (3)[X] remain at School A until the conclusion of her secondary school education unless agreed in writing by the parties or ordered to the contrary by this Honourable Court.

4. The father filed an affidavit in support of his application for interim relief, sworn 13 November 2017.  The mother filed an affidavit, sworn 12 December 2017.

5. The matter was heard in the duty list on 20 December 2017, with Mr Dixon of Senior Counsel appearing for the father, and Ms Dellidis of Counsel appearing for the mother.  Because of the business of the court, that day (there had been 24 matters in the list, many of which were the subject of lengthy argument which required determination of the court), the court was not in a position to give judgment on that day or the following day.

6. The court has since had the opportunity to consider the matters raised in the affidavit material, the tendered documents and oral submissions.

7. These parties have a long history of litigation, with proceedings commencing initially in Sydney in 2009.  On 7 October 2016, I made orders, inter alia, that order 17 of orders made 10 November 2011 be discharged and in lieu thereof each party forthwith do all such acts and things necessary so as to enrol [X] (“[X]”) born (omitted) 2006 at School B and facilitate her attendance at that school from the commencement of Term 1 in 2017.

8. As was noted in the reasons for judgment delivered by Judge Bender in a stay application pending an appeal in Howell & Garson (No.2) [2016] FCCA 3050 at [82]:

   The father’s disagreement with this decision was apparent from the moment the decision was handed down. His counsel indicated to Judge McNab at the time of the judgment that his client would be appealing against this decision and seeking a stay even though at that time he and his legal advisors had not had the benefit of receiving and reading his Honour’s written reasons for his decision.

9. The court was referred to an affidavit affirmed by the father on 31 October 2016, which set out in some detail the father’s disappointment and concerns with the order that was made on 7 October 2016.

10. A threshold issue arises in relation to this case in regards to the rule in Rice & Asplund [1978] FamCA 84. Counsel referred me to Full Court authority of Searson & Searson [2017] FamCAFC 119 (‘Searson’).  I have also had regard to a decision of Walter & Walter [2016] FamCAFC 56, which is a case which is reasonably on point in relation to the facts in this case involving a child refusing to attend school and whether there were fresh circumstances warranting the reopening of the case.

11. In Searson, his Honour Murphy J referred at paragraph [16] to the Full Court decision of Marsden & Winch [2009] FamCAFC 152. His Honour said:

    In Marsden & Winch, the Full Court said:

    [57].In Miller[1] … the court posed the question:

    [105]Adapting the language used by Warnick J in SPS and PLS … the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?

    [58]That question might be better formulated in another way in the following proposition, namely that there is a requirement:

    (1)for a prima facie case of changed circumstances to have been established; and

    (2)for a consideration as to whether the case is a sufficient change of circumstances to justify embarking on a hearing.

    [1] Miller & Harrington [2008] FamCAFC 150; (2008) FLC 93-383

12. I also have regard to what was said by Murphy J at paragraph [10], where he quoted again from the decision of Warnick J in SPS & PLS [2008] FamCA FC 16, making reference to the assumption that the court proceeds on the basis of assuming the evidence of the applicant is accepted. That is picked up in the passage I quoted earlier from Miller.  I will proceed to determine the issues, having regard to that authority and the authorities referred to in it.

13. The evidence of the father is that [X] has not settled at School B and she remains unhappy to the extent that the head of the school has met with her every two to three weeks since June 2017 in order to alleviate her distress and to assist her in adjusting to School B.  I refer to paragraph [6] of the father’s affidavit.

14. The father says that the meetings have caused outbursts from [X] to abate, but they have not assisted in settling [X] at School B. The father says at paragraph [6]:

    I am concerned about [X]’s psychological and emotional health should she remain at School B for year 7 in 2018 without having some say in her enrolment.  I am concerned that [X]’s mental health will suffer if she does not have proper input into arrangements for her education in 2018 and into the future. 

15. He does not indicate there what he considers proper input from a year 6 or year 7 student is.

16. In my view, there have been some changed circumstances that can be pointed to, having regard and accepting the father’s evidence of [X] being unsettled in transitioning to School B.  There are changed circumstances to the extent that [X] is now attending the school, and on the father’s evidence, she is not settled in the school.

17. I then have to consider whether that change in circumstance is sufficiently material to justify this family and this child being subjected to a further round of litigation in circumstances where she has been involved in Family Court proceedings since she was a very little girl. 

18. I note in the bundle of materials which were tendered from the school, being exhibit R-8, the mother noted in the questionnaire that she filled in before [X] attended the school psychologist that she had been the subject of family reports and meetings with family counsellors in the context of litigation from a very early age. 

19. The father tendered documents that had been subpoenaed from the school which he said supported his view that [X] had not settled and was unhappy at School B. 

20. A consent form for psychological services to be provided by the school was signed by the father on 3 May 2017. Prior to signing that form, the father had telephoned the school psychologist and spoke to her for about 30 minutes on 2 May 2017 and her notes are in the bundle of tendered notes.  That note reads:

    Mr Howell, 2 May 2017, 9.15 am to 9.42 am.  [X] with Mr Howell this week.  Lives in (omitted).  [X] distraught.  Said mum lied about things??  Ms Garson is a compulsive liar.  [X] has told her mother she is quite angry.  Dad took her to a psych ….. [X] to see me.  She needs to want to.  Wants confidentiality.

21. It is apparent from that note that the father has spoken in highly derogatory terms to the school psychologist in relation to the mother and it is apparent from the affidavit material that the father has unilaterally taken his daughter to a psychologist external to the school. The evidence based on the subpoenaed notes from the school is that the daughter was not happy about that occurring.

22. In the further notes of the school psychologist of her communications with [X], it indicates that [X] was extremely worried about others knowing that she was attending the school psychologist.  The note says:

    [X] worried about others knowing.  Get someone to collect her last session of the day.  Sessions weekly – not to tell parents exactly when sessions. 

23. I take that note to mean that [X] did not want to tell her parents when she was attending the psychologist, and I presume it is in order for her to be able to avoid discussing that with the parents.

24. The father signed a consent for his daughter to attend the school psychologist on 3 May 2017.  In that consent form the father noted that [X]’s school performance in each subject area was either good, very good or excellent. In relation to whether [X] was well behaved at school, he noted yes.  In relation to whether she got along with children, had friends at school and played well with others, he answered yes to each of those questions. 

25. He did note that [X] was having significant difficulties transitioning and hoped that the psychologist could “help her fully transition to School B or give her voice in relation to where she truly wants to be.” 

26. The notes of the interview with the headmistress, Ms H, indicate that [X] was initially very unhappy about continuing at School B.  The father did not tender all of the notes of Ms H, and it is significant to read the notes of the conversations between the principal and [X] after a joint meeting had been arranged with the psychologist, [X] and her parents for the purposes of her expressing her views. 

27. The notes of discussion with the headmistress and [X] tendered by the father commenced on 13 June 2017, and a note of that date states that:

    Discussion with [X] revealed that she was feeling very unhappy about continuing on to SS at School B.  [X] was teary but able to articulate her feelings. Beginning to establish some rapport for further discussions if [X] wishes to continue these. 

28. There is a note of 26 July 2017:

    Meeting to touch base.  [X] wanting to move forward situation re her being unhappy to attend School B rather than School A. Talked about her feelings and putting these into words. Discussed her activities at each parent’s house – clearly [X] enjoys time with both parents and is generally happy with how things are going.  Continuing concerns about having had to leave School A. Discussed the importance of [X] being able to articulate these feelings to both parents. 

29. There is a further note of 6 September 2017, which records a conversation between the headmistress, Ms H, and the mother where Ms H stated in relation to concerns she has with [X]’s transition:

    Ms Garson did not think [X] has any problems with that.  Ms H was concerned about both [X]’s demeanour in Transition Interview with Ms H as well as her demeanour (fidgety and disengaged) in transition House lunch with Head of SS on 30 August. Raised idea that further discussion with [X] would be helpful re her apparent unhappiness about the concept of Year 7 at School B.  Ms Garson did not really think this was a problem.

30. The school is raising the problem of [X]’s transition to the school and the prospect of her entering year 7 at the school with the mother and suggesting a meeting.  There was a meeting held, and then there was a follow-up discussion between Ms H and [X], which was noted on 18 September 2017:

    Discussed meeting where [X] would be facilitated to express her disappointment at having no say in moving schools.  Gave [X] the opportunity to practice what she wanted to say.  A few tears as this was clearly quite difficult for [X]. Open and clear communication throughout the meeting. [X]’s main concerns – didn’t get a choice in moving, disruption to friendships, identifies as an School A student.  [X] = well able to articulate her thoughts and feelings.

    … 

    Reminded [X] that there is no silver bullet/easy solution here – it will ultimately be up to her parents how the situation moves forward.  [X]  keen to have meeting with both parents and express concerns to her mother.  General chat about the holidays etc – [X] looking forward to time with both parents.  No concerns about time with either of them.  Some minor observations of frustration that (omitted) participation is not supported across both weeks of access.  But this was not identified as a large problem. 

31. A meeting, which was attended by the psychologist and parents, where [X] had the opportunity to express her views took place on 13 November 2017.  There is a note of a conversation between Ms H and [X] regarding that meeting, which provides:

    Debriefed the meeting with her parents – [X]  was a bit disappointed in the meeting but was philosophical about it. There had been no real discussion about things at home. We discussed the idea of [X]  having time with her School A friends while at mums.  She would like this. Chatted about other aspects of her life – sport – still a bit stressed by different sports in different houses – but she likes them all!  She was happy about how things were going at school and generally at home. 

32. On 1 December 2017, there is a note of a conversation between Ms H and [X], which provides:

    Meeting to check in on how [X] was feeling about Year 7 transition.  She reported that she was feeling good about it.  She brought me a card to thank me for our meetings.  She seemed in a good place and happy about the prospect of holidays with both parents.  She confirmed that she would attend the transition day on 12 December. 

33. The mother, by her affidavit sworn on 12 December 2017, gives evidence that [X] is attending school, is getting good results in her schoolwork, is very involved in sport where she participates in teams and in athletics, and is doing well.  She is also (omitted) and participating in (omitted) and looking forward to the time when her little sister, who also attends the school, will commence (omitted).  She is also involved in non-compulsory school activities such as (omitted), and she has participated in the school production. 

34. It would appear on the basis of this account of [X]’s achievements and activities that she has thrown herself into the life of the school and is taking advantage of the opportunities offered by that school.  The mother has also given evidence that [X] has made close friends at the school and is enjoying having those friends sleep over at her mother’s house and attending other children’s houses for the same reasons. [X] has undertaken all transition programs in order to commence year 7 at School B Senior School. 

35. The father has exhibited notes of his daughter written in the first week of her school “(omitted)”. In one of those notes she expresses her unhappiness and says that she will go the school but will not play with people or listen. The note provides:

    I make you a deal.  I’ll go to that school but I will not 

    1.    be nice

    2.    play with people

    3.listen and do tests

    4.be included

    5.have fun 

36. All those sentiments expressed by a young girl transitioning to a new school have not been borne out.  It is apparent that she has become fully involved, has made friends, is doing tests and is attending school.  She is not running away from school.  On the basis of that evidence of the mother and father and the evidence of the notes of Ms H and the notes of the psychologist, I conclude that: 

    a)there were issues in [X]’s transition to her new school and that she was in a difficult situation of trying to please both parents and not happy about how the transition had been handled; 

    b)she has been assisted by the school and has had the opportunity to voice her concerns in meetings at the school, and those views have been taken into account; and

    c)she has expressed her views in relation to the transition to School B in year 7 as noted in [32] above. [2] 

    [2] Exhibit A1, note of 1 December 2017.

37. At paragraph [10] of the father’s affidavit affirmed 13 November 2017 he states:

    I admit that, after the decision was made, I did not think the decision to change [X]’s school was in [X]’s best interests.  I appealed against the decision and I applied for a stay of the decision.  I was unsuccessful in my application for a stay.  Thereafter I accepted that the decision the Court made on 7 October 2016 was going to be implemented.  I withdrew my appeal.  I have done my utmost since to support [X] in her attendance at School B. 

38. That statement is at odds with the terms of an email communication to the mother on 1 February 2017 which was written at the time that [X] was about to start the school year.[3]  That provides in the opening paragraph:

    It was your wish for [X] to attend School B, not mine, and certainly not [X]’s.  I do hope you realise the profound negative impact your selfish and self centered decision is having on [X]’s emotional wellbeing.  She’s been inconsolable over the last few days and has been crying herself to sleep.  [X] was in dread of starting the school year and desperately wants to be with her friends at School A. She has told many people that she can’t understand why she had to go to School B, other than of course that it makes your life easier.  [X] feels it is totally unjust and she feels both sad and angry that this has been foisted upon her without any consideration on your part for her wishes. 

    [3] Exhibit “ALG-02“ to affidavit of Ms Garson sworn 12 December 2017.

39. The father thereafter in that email refuses to pay for any of the enrolment or uniform costs.  In my view, it is an overwhelmingly negative letter in tone.  I can think of no better way for a financially resourced parent to indicate his lack of commitment to a choice of school than by not contributing to the cost of a school uniform.  The father has been assiduous in keeping evidence in support of his conviction that [X] should not be going to School B.  In that regard I refer to the notes that he has retained and the voice recording that he has made and retained.  The form of final orders that the father seeks makes it plain that he wants [X] to attend School A in (omitted).

1. There is no demonstrable evidence that the father has supported the decision of the court, which the court was required to make because these parents could not agree amongst themselves. 

2. In my view, there are not sufficient changed circumstances to justify a new hearing in this matter. [X] is enrolled in and attending the school. She has expressed her view to the headmistress that she is happy where she is, and I do not think a further round of litigation on this issue is warranted or in her best interests.

3. Further, there is a real question about the utility of the course proposed by the father in circumstances where [X] is enrolled in year 7 and any trial of the proceeding about a change of schools will take place after the commencement of the school year. 

4. Further, the underlying circumstances that form the basis of the previous decision remain.  School A is not a convenient location, whether by car or public transport, given the mother’s location.  There are, in my view, overwhelmingly clear and good reasons to send [X] to School B.  It is a first-class school.  Her little sister attends the same school, and she lives within walking distance of the school.  Those were the views I expressed in my reasons for decision of 7 October 2016. The circumstances in relation to those matters have not changed.  In my view, the father should make demonstrable efforts to support the decision to send his daughter to School B in order to assist her in making her way into her senior school years.

5. A further tranche of litigation and its detrimental effects on all concerned is not warranted as there is not a sufficient change in circumstances to justify embarking on a hearing. 

6. The father has said through his counsel that in the event that any report from the proposed family report writer was “equivocal”, then the application would be abandoned.  However, this begs the question about what the father thinks is equivocal, and in my view, may simply lead to further argument about the meaning of a proposal. 

7. For these reasons, I dismiss the application. In my view, costs should follow the event.  In the circumstances where the applicant has been wholly unsuccessful, the applicant was put on notice in writing that an application for costs would be made if the application was not withdrawn. The applicant has been put to the full expense of dealing with a detailed, contested matter and a discrete hearing, the submissions for which went for about an hour and a half. I order that the applicant pay the respondent’s costs, fixed in the sum of $7,631. That figure is fixed in accordance with the scale. I decline to order solicitor/client costs or indemnity costs.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 30 January 2018