J and H
[2001] FMCAfam 204
•11 September 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
J & H [2001] FMCAfam 204
CHILDREN – Specific Issues – child’s schooling – determination of child’s best interests – Family Law Act 1975 (Cth) ss 60B, 65E, 68F(2).
COSTS – Family Law Act 1975 (Cth) s117(1).
Re G: Children's Schooling [2000] FamCA 462.
B & B: Family Law Reform Act (1997) FLC 92-755.
| Applicant: | V A J |
| Respondent: | C F H |
| File No: | ZB 3872 of 2001 |
| Delivered on: | 11 September 2001 |
| Delivered at: | Brisbane |
| Hearing Date: | 4 September 2001 |
| Judgment of: | Rimmer FM |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Mr Linklater-Steele |
| Solicitors for the Respondent: | Tavoularis & Company, Solicitors of Brisbane |
ORDERS
That the CHILD, B C H, born on 25 August 1989 attend W V State School to commence Year 8 in 2002.
That there be no order as to costs.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE
ZB 3872 of 2001
V A J
Applicant
And
C F H
Respondent
REASONS FOR JUDGMENT
The proceedings
In this matter, the mother filed an application for residence, contact, and specific issues with respect to the parties' two children, B C H, and L R H. Her application was originally filed in the B Magistrates Court on 12 February 2001. The application was transferred to the Family Court of Australia at Brisbane. On 26 March 2001, the father filed a response seeking different orders for residence, contact, and specific issues with respect to the two children.
The matter was then transferred to this court and the first court date was listed for 20 June 2001. On that day, the parties reached final consent orders in respect of residence, contact, and all matters of parental decisions except for one specific issue, and that is the remaining issue in dispute between the parties for consideration by the court today. That dispute relates to the competing applications by each parent about the school that B should attend for high school in the year 2002. This issue was allocated for trial and proceeded to final hearing before myself on 4 September 2001.
The mother appeared on her own behalf unrepresented and she did so quite confidently adducing evidence. She was subject to cross-examination. She relied on the material identified in her case outline and was given leave to file a further affidavit by leave responding to the father's affidavit. The father was ably represented by counsel. He adduced evidence and was subject to cross-examination. He also relied on the material identified in his case outline.
The pace of these proceedings reflect the desire of the parties for early judicial determination to ensure that this issue is determined quickly so B's high school, which she is scheduled to commence in 2002 is known importantly to B and to both her parents as soon as possible. For that reason, I decided to deliver these reasons ex tempore, which, by necessity requires a truncated expression of the relevant findings. As will be seen and as was submitted by counsel for the husband, the issues in this matter are so finely balanced that any longer period of consideration of them was unlikely to produce reasons of greater clarity.
Background
These parties commenced cohabitation in 1982. They married on
25 February 1984 at S in New South Wales. They separated on
13 October 1993 and were divorced in May of 1995. Their eldest child B was born on 25 August 1989 and the younger child L on 9 July 1992. The two children are now aged 12 years and 9 years respectively.
Both parents are, because of the orders made by consent on 20 June 2001 actively involved in the on-going parenting of the two children. Those orders provided, in summary, that the children live with their mother and she be responsible for their day-to-day care, welfare, and development; that the parents share responsibility for their children's long-term care, welfare and development; that the mother notify the father immediately in respect to issues of major illness and treatment of the children; that the father have contact with the children which was specified with great particularity. He has contact each alternate week-end with contact commencing from the completion of school on Friday until 8 am Monday on the first contact week-end in each month, and from 6.00pm Friday until 8 am Monday on the second, and, if any, third contact week-ends in each month.
He then has further contact from 6.00pm Thursday until 8.00am Friday during the school term. Half school holiday periods as agreed between the parents. The orders provide for particularity in respect of special events within school holidays, special contact events, such as birthdays, Father’s Day, etcetera. The orders also provide for on-going telephone contact. In addition, they provided for certain other matters as between the parties with respect to their children, but it is not necessary to set out in detail in these reasons.
Both these children are presently enrolled at M W Park State School. B is in year 7, which is the final year of primary school. She is to progress to the first year of high school in 2002.
The competing proposals
The mother proposes B be enrolled in the feeder public high school for the state primary school she at presently attends, which is W V State High School, which will be referred to as W. The father proposes that she attend R M College, a private school and, as part of his proposal, has offered to meet the school fees and one half of the cost of B's uniforms, text books, and excursions. He also offers to pay the child's bus fares, if any, to and from her school, and through the course of the proceedings, made a further offer to meet the private tutelage of the child in French.
He is able to do so, he says, on his case, as these costs will be met by his current partner, his fiance, and that he intends to marry her at some time in the near future, and they have a committed relationship, which will provide a reliable and on-going source of funds for this educational cost, not only for B but L.
The mother expresses some concern in relation to the father's own independent capacity to meet school fees and concern that there will be disruption if there is a breach in the relationship between the father and his current partner. The mother is a practising Jehovahs Witness. The children have been raised according to the principles and beliefs of that faith. Also, because they live within the mother's household the majority of the time, they are both heavily involved in the practice of their religion. I am satisfied that it is the children's religion at this stage.
The law
The parties are unable to agree as to how their responsibility for determining B's secondary schooling will be decided. In deciding this matter, I am being asked to make a decision for a particular parenting order to be made for B. I must therefore, in so doing, regard the child's best interest as the paramount consideration under section 65E of the Family Law Act 1995 as amended. Accordingly, it is the consideration of B's best interest which forms the cornerstone of this limited decision about her secondary schooling. In determining the child's best interests, there are a number of matters I must consider. Those are the factors set out, which are relevant in section 68F(2) of the Family Law Act, and I will turn to them shortly. I perform this task against the backdrop of the objects and principles as applicable found in section 60B of the Act, which I do not intend to recite in these reasons.
Furthermore, the recent Full Court decision of Re G: Child's Schooling [2000] FamCA 462 is relied upon by both parties. In that case, the Full Court enunciated the approach to be adopted in a children's schooling issue.
Firstly, it was held that there is no legal presumption that favours acceding to the proposal of the parent with whom the children are living. Section 65E has equal application to this issue. However, although there is no legal presumption in favour of the resident parent, and correspondingly no hurdle or onus faced by the other parent, that is not to say that the reality of the children's residing predominantly with one parent has no relevance.
Secondly, in accordance with B and B: Family Law Reform Act (1997) FLC 92-755, the objects and principles in section 60B are to be taken into account in considering the relevant section 68F(2) factors.
Thirdly, it is appropriate to identify the section 68F(2) factors which I think hold significance in the present specific issues application.
The evidence
Both of the parents were the only witnesses called and cross-examined. There was, significantly, in this matter, no evidence before me except evidence of a secondary nature through documents annexed to affidavits or exhibits from either of the school principals of W or R M or, importantly, from the child's current year 7 teacher. There were documents which provide information about what parents can expect schools to offer, or various information which the parents themselves had gleaned from the school, and there was the year 7 last report card for B. Both parties relied on other witnesses by affidavit, however, I find that they were of little of no assistance in determining this matter.
The mother
In the witness box, the mother presented as a loving and caring parent. She displayed a good relationship with her daughter, B, and I was satisfied that she knew her strengths and weaknesses, talents, and skills well. She displayed an in-depth knowledge and understanding of the importance to B of her friendships and peer groups. I was satisfied that she had carefully considered the importance of B's schooling decision for B in terms of her overall happiness, which the mother clearly considered would directly impact on B's achievement, particularly in the early years of secondary school.
In cross-examination I found her honest and forthright. She was challenged about the influence that she had brought to bear on B's independent views and wishes as to her schooling, and, in particular, in relation to B's involvement in the Jehovahs Witnesses religion. I found that the mother was honest in the answer she gave and the evidence she provided to the court. She clearly acknowledged that her beliefs have meant that B has been raised with certain beliefs and has been required to follow a certain lifestyle, given that it is a reality that B lives in her home and that she is a practising and active Jehovahs Witness, as are the children.
However, she clearly acknowledged and understood, in my view, that B was fast approaching an age where she would develop different ideas and beliefs from those her mother held. I was satisfied that the mother had given this appropriate thought and consideration, and was appropriately prepared, as any parent can be, for her daughter's developing independent views and thoughts as she moves through adolescence.
I was satisfied that the mother was insightful and clear about B's wish to attend the W school as opposed to the R M school, and I accept that she has appropriately assessed as a parent clearly must, and had appropriate discussions with B as a parent clearly must, in respect of B's secondary school. B is a child who is 12 years of age, and is of an age where parents can no longer simply impose their decisions upon the child without some consideration of the impact upon and views and wishes of their child.
I find that the mother demonstrated in her evidence that she knows her daughter well, and is realistic about her future hopes and plans, taking into account, of course, that they are subject to many changes, given B's current age and stage of development. I did not find that it was established that the mother had dictated or set B's wish by imposing her own views, and her evidence on this matter I accepted entirely. The mother had, I am satisfied, made very intense and appropriate inquiries with the W school, and the program and subjects which were offered to the children in year 8, year 9, and into the later years of secondary school. I was satisfied from the evidence provided that the W school provides an adequate and appropriate standard of education for a child of B's obvious intelligence and talents.
The father
I found the father to be a caring and loving father who has the interests of his daughter very closely to his heart. I found that he was an honest and forthright witness, and that he had given a great deal of consideration also to the benefits which he perceived would flow to his daughter from the education that would be provided by the R M school. I was, however, a little troubled that his decisions may have arisen from an underlying value judgment that private schools provide children with a better education or better opportunity to develop into tertiary education than do public schools.
I found that the father knew his daughter perhaps a little less in relation to the friends and peers who she associates with, as was clearly demonstrated when he was unable to name the names of four of B's best friends, when asked that question by her mother. That is not to say that that takes away from my findings that he is a loving and caring parent. However, in my view, it did demonstrate that, at this stage in the child's relationships and development, her bond with her mother was such that these things were closely and intimately discussed between the mother and child, whereas, they are to a lesser extent discussed between the child and her father. I was satisfied that the father had taken an appropriate step in taking B recently to the R M school to show her the alternatives and had appropriately discussed with her the alternative that would be offered to her in an education at the R M school for her secondary schooling.
I am satisfied that he acknowledged appropriately that B has expressed a wish to attend the W school, and that he acknowledges that she held a negative view about the R M school which, in some way, has been ameliorated by his appropriate action of taking the child to the school recently and showing her around and discussing its advantages with her.
I am not satisfied that in this matter either parent has endeavoured to inappropriately influence B in relation to the decision for her secondary schooling. I was satisfied from the evidence of the father that it was appropriate, as I have already found, for him to canvass with her and show her the alternative that he believed was in her best interests. I was satisfied from the evidence of the father that he would commit wholeheartedly to any decision to ensure that the children, both B and L, were able to continue their secondary schooling at R M, if that were the decision of the court, by meeting their cost; notwithstanding the ongoing nature of his relationship with his fiance. In his evidence, he very clearly indicated that this was a matter of such importance to him, that if his relationship did not continue, he would take on a second job and ensure that he met these costs, and from that, I was satisfied that he had taken into account the need for his child B to have stability in her secondary education and for this not to be disrupted because of lack of funds to meet her educational expenses.
In relation to this particular matter, I must consider then the relevant factors in section 68F(2) as they apply to this matter. These were appropriately identified and canvassed in submissions by counsel for the husband and the wife. I am satisfied that in this matter both these schools offer appropriate educational standard for the future development educationally of the child B. I wish to say at this point in my reasons for judgment that there is no view or decision that this court can make, despite the fact that both parties' evidence was very clearly expressing a view by each of them to the merits or otherwise of a private education versus a state public school education.
This was not carried through very appropriately, in my view, into the submissions for each party. The court should not be called upon to make what could only be described as value judgments about the two appropriate systems of education operating side by side and providing good quality education to many differing Australian children. I do not accept, and I have not had regard to the husband's belief that everybody knows children do better, that more children go on to attend tertiary education from private schools than public schools, just as I do not accept and have not had regard to the wife's claims of elitism in the private school system. There is no independent evidence to support either finding by the court.
The examination in these cases, the parties must understand, is more complex and are more personal to the individual child and family than that. It involves the consideration of what is in the best interests of B at this time, the time of this hearing, and to do so, I must consider those factors which I have already referred to as found in section 65F(2) which are relevant to this particular matter.
Section 68F(2) factors — determining the child’s best interests
(a) The child’s wishes
The first section 68F(2) factor which I found relevant was the child's wishes. It is clear in this matter that both parents concede that B has expressed a wish to attend the W State School. As I have already found, I do not accept that the mother has influenced or imposed her views on the child in the expression of those wishes. It is entirely believable and it is accepted by me that a child of B's age, in the final year of her schooling, would be actively considering and discussing and forming her own views and wishes about where she might like to attend high school in the following year. That is not to say that her wishes are the determination of this matter. Clearly, both parents are to make that decision, but one of the factors which the parents and clearly this court under section 68F(2) must consider are the wishes expressed by a child, particularly a child who has clearly demonstrated through her report cards, to be a mature, sensible, intelligent girl, who is aged 12 years of age.
I am therefore satisfied that B's wish is to attend the W school, and that it is her independent wish, a wish which is based upon her being the child which I have just described.
(b) The nature of the child’s relationships with her parents and
significant others
The next factor which I consider should be taken into account as a relevant matter in this decision is the nature of the child's relationships. Her relationship with her parents is an important consideration in terms of her acceptance of a high school for her future next five years of schooling. It is important, in terms of her capacity to discuss issues which arise for her as a developing young lady through adolescence, as she faces issues in her high school education, and there will be many.
The mother has raised, in particular, the issue of how B will cope with being a Jehovahs Witness in either of the schools. I am satisfied that that is a matter which will arise for a child such as B. Clearly, she will come to need to discuss, challenge perhaps, but certainly consider very deeply the values and principles associated with her upbringing and religion in Jehovahs Witness when looked at alongside of those she attends school with. It is important, particularly for this child, that she have a close relationship with each of her parents, such that she can freely and openly discuss these matters with them.
I am satisfied that she does have such a relationship with both her parents at this point in time. I am satisfied that both parents have demonstrated, through the evidence they have given to the court, and my assessment of them in the witness box, as loving and caring parents, that she will be able to turn to each of her parents differently, because of their different strengths and weaknesses, but appropriately, to discuss these issues as they arise for her. I am also satisfied that each parent has the capacity to discuss appropriately with the school, whichever school it is, any issues that may arise for B out of issues and concerns she has in this particular issue of her religion.
I am satisfied that, given the importance for B to maintain a close and loving, supportive and open relationship with each of her parents, which she currently has, that it is a matter which the court should take into account, when she has expressed such a clear and strong preference for one school over the other.
I am satisfied that for B at the time of this hearing, peers and friendships are extremely important. The mother's evidence in relation to this was clear. I am satisfied that that is, in fact, the case, and that all of B's close friends within her friendship group will, or are highly likely to be, attending the W State School, and that this is an important aspect of consideration for B in the decision that she has made and expressed to her parents and her preference to attend that school.
Again, such a matter is not a determinative issue alone of the child's best interest in relation to decisions for schooling. However, I do take into account and accept what the mother says in this regard. The change from primary school to high school is a major change for a child. The support of friends who are known, whether they remain friends throughout high school is immaterial, as, in the initial phases of settling and changing, those friendships and peers provide support in that process.
(c) The likely effect of any changes upon the child
The next matter is the likely effect of any change on B. This is, in effect, a matter which, on the surface, may appear that there is no likely effect of any change upon the child, because she has to make a child from her primary school to one or other of the high schools proposed by her parents in any event. However, the reality for B is that she has attended the state public primary school, which is a school for which W is the feeder school. I am satisfied that she has had the experience of attending the public system, and that there would be a change for her in attending and moving into a private school.
This is not a matter of great significance, as I am also satisfied, given what I have expressed about B's intelligence and maturity, that she would handle any such change well, and with the support of both her parents with whom she has a good relationship.
(d) The attitude of each parent to parenthood and their child
This final relevant matter for consideration under s68F(2) in this matter is the parent's attitude to parenthood and their children. In this matter, I am satisfied that both parents have an appropriate parental attitude to the responsibilities of parenting B and making this decision. Both parents clearly satisfied me that whilst they had a different view about B's secondary school, it was not a cavalier view, nor one which they had come to lightly or without due consideration of all of the competing matters for their child.
Underpinning each of their attitudes and views, however, I am satisfied, is their underlying beliefs which are different about the value of education within the private or public school systems. As I have already said, this is not an appropriate matter for the court to determine, but I do accept that it has, in part, shaped the attitude of each parent to this decision, and I accept that because of that, neither parent has really come to the decision with a totally open attitude or mind.
I am satisfied, however, that both these parents have demonstrated the capacity to support whatever decision the court makes is in the best interests of B. I am satisfied that each of them, whilst they may be disappointed about the outcome, clearly have the capacity to support B at a time when she will need their support and not their undermining of an important decision, such as where she will attend her secondary school.
(e) Other matters relevant to the child’s best interests
Given the parents’ evidence, the other matters which I have taken into account are the wish of this child to undertake French in secondary school as a language. Whilst I have found that both of the schools offer the same basic core subjects of English, mathematics, etcetera, the major difference in those set subjects in year 8 are the languages which are offered either at R M or at W. B currently undertakes French. It is the evidence, which is unchallenged, that she does well at it. That is supported by her report card. It is accepted by both parents that she enjoys French and that she wishes to continue it. That is clearly accepted by the father, who has made an offer to the court through submissions that he would pay for private tutelage if B were to attend R M, and, thereby, be unable to undertake French as it is not offered as a subject in year 8 at that school.
The difficulty with that offer is that I have no evidence before me about what such private tutelage would involve in terms of time and effort for the child. I have no evidence before me as to whether she would benefit from undertaking her French in a classroom situation or what would be available in terms of group tutelage for the father to provide for the child. Further, I have taken into account the fairly heavy academic and extra-curricular program which is offered at the R M School, and have no evidence upon which to be able to make an appropriate assessment as to whether it would be reasonable or appropriate for B to take on a subject such as French external to her school subjects.
Year 8 it appears from the prospectus of R M, is a challenging and exciting year. There are many calls on a child's time, both in terms of the core school subjects, and the extra-curricular activities that she would be involved in. Adding French to that without the court having sufficient evidence to balance and assess whether it would simply be something that would be too much for her, in my view, does not lead to a result which properly reflects upon all of those matters that are in a child of B's age's best interests. In so finding, I do not take away from the concern and the manner in which the father sought to address this particular issue.
I have examined also each of the parties' competing views about what they believe are B's hopes and expectations for the future. That is not a matter that has weighed heavily on my mind in making this decision. I am overall satisfied that B will obtain a good standard of education in either school. I am satisfied that because she is an intelligent mature child, as demonstrated on her school report cards, that she will be enable to flourish well in either school. Issues which the parents believe about what she hopes or expects for her future are in many ways immaterial for a child of 12 years of age, as quite correctly submitted by counsel for the husband.
Conclusion
There will be many changes, I am sure, to B's view about what she will want to do as a young, mature woman in the future, as opposed to a developing but still young 12 year old girl. To make the decision as to her secondary schooling based solely upon that matter, in my view, would not be in the child's best interests.
As I have said, these cases are complex. They involve a personal consideration of the individual child and her best interests, and those best interests must be assessed at the time of this hearing. For all of the reasons which I have set out, I have concluded that it is in B's best interests that she be permitted to attend the school of her choice, the W V State High School to commence in year 8 in 2002. As I have said, both parents will need to support this decision made by the court, as this is a critical factor which may impact upon B's happiness and achievement, going into high school next year, a very stressful event for a young lady. I am satisfied, as I have already said, that both parents are more than able to do so.
A final and ancillary issue has been raised by the father with respect to the court ordering that B be permitted to attend all school camps. School camps, of course, are part of the normal school activities undertaken by children in most Australian schools, both in their primary and secondary education. The mother has raised concerns as to the level of supervision provided for B and for all children during a school camp. I am satisfied that there are many activities that children undertake from time to time which allow them to develop their own independence and capacity to care for themselves as growing human beings towards independence, that do not involve the diligence of supervision that a parent can provide within the household.
I am satisfied that a child attending a school should be permitted to attend at least one school camp in each year, and that B's best interests would be served by the court making an order that the mother permit and enable the child B to attend on one school camp of her choice in each of her secondary school years.
I am satisfied that the mother undertook, during the course of these proceedings, to ensure that B will be entitled to attend and participate in her extra-curricular activities associated with her involvement in music and drama through the school at W. I am satisfied that the court should take accept her undertaking and I propose to do so.
Costs
There is finally an application made by the mother for the husband to be ordered to pay her costs pursuant to section 117(2) of the Family Law Act. 117(1) states that except as ordered by the court, the principle is that both parties should bear their own costs.
It can be seen clearly from the reasons which I have given in some detail today that this was a matter clearly where two parents who were appropriately concerned about the future educational needs of their daughter and were unable to make a joint decision. It will be also seen from my reasons that I found that both parents had come in part to their decision about B's schooling from appropriate inquiries and concerns, that neither parent had been cavalier, but that both had, to some extent, underpinning the ultimate decisions that they had made, their own basic value beliefs about whether a private or public school system offered B the best education.
I am satisfied that, in this matter, both the parents had a triable issue. They had different views. They had made appropriate inquiries. Both parents had put before the court issues that were appropriate for the consideration of their child's best interests.
In circumstances such as these, the court is the only arbiter left for the determination between two parents of their differing beliefs about how that parental responsibility should be decided, and I am not satisfied that this is the sort of matter which is referred to in section 117(2) as appropriate for the court to consider or order that one party meet the other party's cost. I therefore do not propose to make any orders for costs.
I remove all outstanding applications from the pending cases list, and the orders will issue as I said at the conclusion of the trial.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Rimmer FM
Associate:
Date:
0