JEBBETT & COREY

[2019] FamCA 774

FAMILY COURT OF AUSTRALIA

JEBBETT & COREY [2019] FamCA 774

FAMILY LAW – APPLICATION FOR STAY OF ORDERS – Where the mother seeks a stay of certain final parenting orders pending an appeal – Where the child the subject of the proceedings is autistic – Where it was determined that the child’s best interests were served by attending some form of mainstream schooling as opposed to home-schooling as sought by the mother – Where there was an overwhelming body of expert evidence supportive of the child attending some form of mainstream schooling – Where the child’s best interests would not be served by a stay of the subject orders – Where the mother’s arguments for a stay are, essentially, an attempt to revisit arguments made at trial – Where the orders would not be rendered nugatory by a failure to stay the subject orders – Application dismissed – Where the Independent Children’s Lawyer made an oral application for costs – Costs application dismissed.

Family Law Act 1975 (Cth)

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

APPLICANT: Ms Jebbett

RESPONDENT: Mr Corey

INDEPENDENT CHILDREN’S LAWYER: Mr Kingston, Norman & Kingston Solicitors

FILE NUMBER: BRC 9223 of 2017

DATE DELIVERED: 22 October 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 22 October 2019

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Ms Torre, Landmark Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Kingston, Norman & Kingston Solicitors

Orders

1. The Mother’s Application in a Case filed on 30 August 2019, insofar as that application seeks the staying of various orders contained in the Orders of the Honourable Justice Kent dated 29 May 2019, is dismissed.

2. The balance of the Mother’s Application in a Case filed on 30 August 2019 be adjourned to a date to be fixed before a Registrar for mention.

3. The Independent Children’s Lawyer’s oral application for costs is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jebbett & Corey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9223 of 2017

Ms Jebbett

Applicant

And

Mr Corey

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. Following nine days of trial of parenting proceedings I delivered orders and reasons for judgment on 29 May 2019.

2. The central issues in that trial concerned any risk posed to the child, D born in 2012 by the father and respectively by the mother.

3. In the end result, as the reasons set out in some detail, I determined that currently the father posed an unacceptable risk to D, such that there should be no orders for D to spend time with the father.

4. With respect to the mother, the central issues concerned her approach to therapy for D’s needs given his autism and developmental delays, and in respect of whether or not it was in D’s best interests for him to be home-schooled as the mother sought, or for him to attend some form of mainstream schooling.

5. In the result, I was satisfied, on the body of evidence presented at trial, that there were legitimately some concerns about the mother’s approach to therapy. That was essentially summarised in [230] and [231] of the reasons for judgment, following discussion at some length of that issue, as follows:

   230.That noted, it is clear that there are highly troubling aspects to the mother’s approach to therapy for D. It is clear that the mother has a remarkable capacity to elevate her own views about D’s therapy needs over and above the views of qualified expert therapists. The above discussion is replete with examples of this occurring. The mother’s insistence on D’s writing skills being addressed in speech therapy sessions, which in fact is a matter for occupational therapy (as was explained to the mother) is but one simple example, as is the mother’s insistence on the use by the therapist of an iPad, as referred to above. There are many other examples. Most troubling is the mother’s capacity to dismiss recommendations for approaches to D’s therapy which the mother deems unfitting.

   231.The mother is noted to have been a very demanding parent and determined to have her way over the views of independent experts. In my judgment that is seriously undermining of the benefits for D of the therapies which he can access. As earlier noted, there is also an unusual emphasis upon D’s motor skills as opposed to his language skills being addressed in therapy.

6. I hasten to add that the finding at [230] was balanced against the feature as set out in [234] of the reasons for judgment, that it was the mother who had essentially done as I had described it in the reasons the “hard yards” in terms of D’s care without any real practical assistance from the father.

7. The mother filed a Notice of Appeal from the final orders made on 18 June 2019. The current application is the mother’s application for a stay of orders, although I note that the mother applies for a stay of some of orders that are not actually the subject of her appeal and does not address other orders that are the subject of her appeal.

8. In any event, the mother’s appeal from orders really fall into the following categories:

   a)First, those orders requiring the mother to obtain any input from the father before exercising her sole parental responsibility (Orders 2.1 to 2.3);

   b)Next, those orders requiring the parties to keep each other informed of their address and contact details, as well as treating physicians for D and therapists for D (Orders 9, and 11 to 15);

   c)Thirdly, orders requiring D to undertake therapy with the P Group (Orders 16, 18 and 19);

   d)Orders with respect to D’s schooling (Orders 21 to 29); and

   e)Orders authorising and requiring the distribution of the reasons for judgment and the orders to certain parties including the P Group and the Department of Child Safety, Youth and Women (Orders 32 to 35).

9. The principles relevant to the application for a stay of orders are summarised in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 at[18] as follows:

   18.      …

   •the onus to establish a proper basis for the stay is on the applicant for the stay.  However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;

   •a person who has obtained a judgment is entitled to the benefit of that judgment;

   •a person who has obtained a judgment is entitled to presume the judgment is correct;

   •         the mere filing of an appeal is insufficient to grant a stay;

   •         the bona fides of the applicant;

   •a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;

   •a weighing of the risk that an appeal may be rendered nugatory if a stay is  not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;

   •some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;

   •the desirability of limiting the frequency of any change in a child’s living arrangements;

   •the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and

   •the best interests of the child the subject of the proceedings are a significant consideration.

10. Dealing first with the last of these dot points, namely, the best interests of the child the subject of the proceedings being a significant consideration, it was my judgment as the reasons set out in some detail, that the child’s best interests were served, obviously by the orders I made but, in particular, by the orders I made with respect to his schooling via some form of mainstream schooling rather than home-schooling as proposed by the mother.

11. In my judgment, there was an overwhelming body of expert evidence supportive of the proposition that D’s interests would be maximised by optimising the opportunities for him to have some socialisation in circumstances particularly where he was to be living with the mother, without spending time with the father, and where his opportunities for socialisation may otherwise be limited.

12. In terms also of the child’s best interests, there was a concerning body of evidence as I have referred to, concerning the mother’s preparedness to elevate her own views about therapy for D over and above the views of expert professionals. I need not repeat what is set out in my reasons for judgment, but this is a topic dealt with at length in the reasons for judgment.

13. Thus it is that it was my judgment for the reasons set out in detail that it was in D’s best interests both for orders to be made directed to therapy for D as well as in respect of the home-schooling issue.

14. In my judgment, it is a significant factor balanced against the granting of a stay that D’s best interests would not be served by a stay of the subject orders.

15. It is likely that an appeal from those orders will not be heard until the middle of next year at the earliest or perhaps later on current progress, and the reasons I identified for it being in D’s best interests come into further focus as more time elapses before the opportunities to maximise his potential via the schooling regime I have proposed in the orders is activated.

16. The mother is obviously not obliged to demonstrate any special or exceptional circumstances, but she carries the onus on this application to establish a proper basis for the stay of orders. Much of her submissions in support of her application were really an attempt to revisit matters that were the subject of a great deal of evidence at the trial and commensurately a great deal of the reasoning contained in my reasons for judgment.

17. Each of the Independent Children’s Lawyer (“the ICL”) and the father oppose the application for a stay and have provided written submissions in support of their positions. Each of those parties can be seen to be persons who are entitled to presume that the judgment is correct and are entitled to the benefit of the judgment to the extent that it reflects orders that were sought by each of the ICL and the father. It bears emphasis that the ICL is charged with the statutory obligations imposed by the Family Law Act 1975 (Cth) (“the Act”) to seek orders in the child’s best interests and that is what occurred in the trial of the proceedings.

18. It is not demonstrated to me by the mother that her appeal from the relevant orders would be rendered nugatory in respect of the appeal if the stay is not granted.

19. With respect to her complaint about the home-schooling issue, the mother in her submissions and in her affidavit in support of this application essentially repeats much of the evidence in summary form that she gave before the Court and re- emphasised her arguments concerning the home-schooling issue. I repeat the reasons for judgment were reflective of the mother’s position and her evidence but in the main focused upon the independent and expert evidence as to this issue.

20. I include the conclusions I reached on the home-schooling issue as set out from [237] of the reasons for judgment as follows:

    237.The mother sought an order that she be permitted to home-school D. In support of this application, the mother sought to lead evidence which was not in admissible form from various studies, news articles and other kinds of extrinsic evidence regarding the benefits of home-schooling, however the mother did not meet the criteria for admission into evidence of such extrinsic material. Further, none of that material spoke to D’s specific needs and whether it was in the best interests of this child to be home-schooled by this parent, rather than attend a special school or a mainstream school with a support unit.

    238.The mother’s determination to home-school D, rather than have him attend some form of mainstream schooling appears to be, given the body of independent expert opinion to the contrary, emblematic of the mother’s capacity to elevate her own views and opinions despite receiving contrary independent and expert advice.

    239.In relation to schooling, the mother stated that she did not see a benefit to D of attending a mainstream school or having professional teachers assisting him. The mother stated that she was a member of a Facebook group where parents who home-school their children have shared “horror stories” about their children being bullied or inadequately cared for during their time at a mainstream school. The mother stated that she was worried D would suffer serious anxiety if he were forced to go to school, and would therefore not achieve his potential. While there is a special school located in Suburb KL, the mother stated that she has only heard negative things about that school.

    240.Counsel for the father suggested a special school located in Suburb TU and another in Suburb Q. The mother confirmed that she had not investigated either of those schools at the time of her cross-examination as it was her intention to home-school D. 

    241.The mother stated that neither she nor the father agreed to D attending the KL School. 

    242.The mother had looked into the V School recommended by Ms J at paragraph 18.1 of her report which D could attend two to three days per week however there is a one to two year waiting list. The mother stated that this service was also available to children being home-schooled. The mother and father had inspected the campus of the V School back in 2015 but the mother described it as being “like a prison”.

    243.At the time of her cross-examination, the mother had made no enquiries as to the support services which could be provided at her local state school in Suburb W. However, during closing oral submissions on 5 April 2019, the mother confirmed that she had made those enquiries and was allowed to lead the following evidence (although that evidence was unable to be tested):

    a)D would have to wear a school uniform which the mother asserts he will refuse to do;

    b)D would be required to wear a school hat which the mother asserts he will refuse to do;

    c)That if D fails to comply with any direction, the school can suspend him for 1 to 21 days which the mother believes will motivate D to keep misbehaving in order to get suspended;

    d)The school would not receive additional funding for D until the end of the calendar year and therefore the school will only have the current funding available until then which is not much;

    e)The school could provide a teacher aide to give assistance to D for two 30-minute sessions each week. The school only has two teacher aides to utilise across 13 special needs children; and

    f)The school can provide some limited speech therapy subject to funding.

    244.The mother stated that she has no doubt in her mind that a state school could not properly accommodate D as their rules will be too strict. She believes D will just keep getting into trouble for failure to take direction. The mother said that D is very stubborn, she used what appeared to me to be an extraordinary example to demonstrate that. The mother said that at 2-3 days old, D made the decision to refuse to breastfeed and from that time on the mother was required to feed him using formula. I reject that proposition.

    245.The mother said that she did believe that a special school would have the resources and ability to manage D, however, as D is not intellectually impaired, the mother did not believe that D would meet the eligibility criteria for entry into a special school. This may be confirmed following D’s assessment by a paediatrician at the M Hospital.

    246.The mother unilaterally lodged an application with the Department of Education for D to be home-schooled in October 2018. That application was granted and the mother was provided a Certificate of Registration dated 11 October 2018. 

    247.The mother filed her Home Education Plan in these proceedings on 4 December 2018. That curriculum was approved by the Department of Education. The first page of the mother’s curriculum compares home-schooling and mainstream schooling to organic versus caged eggs. She also states that mainstream schools “fed [sic] you with junks”. By that, the mother clarified that schools teach their students junk meaning “unwanted information” regarding topics that some children do not like or are not relevant to their life. The mother stated that D should only learn about those things he is interested in and passionate about.

    248.The mother described her teaching style as “free-range learning” where D would show interest in a topic and then the mother would show D videos and educational cartoons relating to that topic and they would perform practical activities. The mother stated that she did not plan lessons in advance but rather did things “on the fly” depending on what D wanted to do. The mother conceded that much of D’s learning would come from watching videos. When asked what humanities and social science related activities were being undertaken, the mother stated that she did not know what humanities or social science included. 

    249.The mother stated that at the end of the year, she would need to submit a report with the Department of Education setting out the education provided to D and if the Department of Education formed the view that D had not received a high enough level of education, they would revoke the mother’s home-school registration and require D to attend a mainstream school. The mother said that given those potential consequences, she was motivated to ensure she gives D a proper education. 

    250.Counsel for the father challenged the mother on whether she would ensure that D learns about some topics that he may not like and, therefore, may not prompt her to teach him about. For example, D has a sensory aversion to paper. The mother states that she does not make him read books as a result and rather he reads on a computer or she turns subtitles on when he watches cartoons. D learns to write with his occupational therapist. At home, he primarily uses an iPad or iPhone. The mother stated that as he is not good at writing and does not like paper, she will not make him write on paper at home. She does not believe it is a necessary skill for D to learn given today’s technology.

    251.In this context it bears repeating what is recorded at [193] above about the mother’s response to Ms FF’s suggestion about the mother engaging more with D in play activities. If the mother defers to D about play I do not see how it can be concluded that the mother could or will persist with necessary educational tasks.

    252.For socialisation, the mother stated that she would take D to the park to engage him with other children. She also said that she intends to create a Facebook page to arrange activities for D with other home-schooled children that are near public transport for her.

    253.The mother confirmed that she disagreed with the recommendations of each of the experts in respect of their recommendation that D attend a mainstream school with special support services.

    254.The mother stated that she took D to an after school day care in approximately February 2019 and D refused to go in. He stood at the door and did not like the look of it so he would not go in. The mother stated that D would react the same way if this Court ordered that she enrol him in a school. The mother said that if D wanted to go to a school, she would facilitate it. However because D has decided he hates school, she will not force him to go. The mother stated she does not know why D has formed the view that he hates school when he has never attended one. The mother also said that she did not believe that there would be an adjustment period and then D would become used to the school environment.

    255.Counsel for the father asked the mother how she gets D to do anything he does not like – for example, how she manages situations where D wants to do something that is unsafe. The mother responded that if D’s behaviour is unsafe or dangerous she is very firm with him. However if what he wants to do will not hurt himself or others, then she will allow him to do what he wants.

    256.The mother stated that, as she is currently renting, she may not remain in the W School catchment.  

    257.The mother was concerned that, if ordered to enrol D in a school, she may not be able to force him to go.

    258.The mother could not accept that there may be positives for D in attending a school such as learning a routine, learning to share, learning to socialise with other children and having the benefit of qualified teachers. 

    259.The father and the ICL opposed the mother’s application in this regard. No other expert witness who met D during the course of these proceedings supported the mother’s application. 

    260.A summary of each witness’s evidence regarding D’s education is as follows.

    Ms H, family report writer re: schooling issue

    261.Ms H maintained her recommendation that D attend at either a special school or a mainstream school with a special unit. During the course of her evidence, Ms H identified the following benefits to D in attending school:

    a)Expansion of D’s outlook by him having the experience of receiving instruction from others;

    b)Therapeutic professionals can engage him in the school setting;

    c)The collective input of professionals as well as school could identify and address needs of D from time to time as they arose;

    d)Schools are better equipped to meet D’s needs;

    e)Exposure to social opportunities in a school environment which would afford D opportunities to learn; and

    f)A “protective mechanism” in the sense that D would be in an environment where his development and progress would be monitored and any needs addressed as they arose.

    262.Ms H stated that she was confident that D would greatly benefit from attendance at such a school.

    263.Ms H took the view that the father had greater insights than the mother in some respects given the, according to Ms H, mother’s preparedness to elevate her own views ahead of those of experts or professionals. In this context in particular Ms H referred to the mother’s plan for home-schooling of D and the mother’s apparent inability to “take on board” the opinions of others including experts as to the benefits for D of undertaking his schooling in mainstream education rather than by way of home-schooling.

    264.In terms of home-schooling, Ms H identified the limitations as including the lack of social interaction of D with his peers and the feature that he would be only given instruction by his mother. Conversely, Ms H saw there being benefit for D and expansion of D’s outlook by him having the experience of receiving instruction from others and moreover Ms H saw significant benefits in D being in a school environment where the collective input of professionals as well as school could identify and address the needs of D from time to time as they arose. Better equipped to meet his needs, therapeutic professionals can engage him in the school setting. Ms H emphasised the benefits for D of being exposed to social opportunities in a school environment which would afford him opportunities to learn. Ms H referred to a school setting as being a “protective mechanism” in the sense that D would in that environment be monitored such that his development and progress would be kept under review and any needs addressed as they arose.

    265.Ms H rejected the mother’s contention that D faced the prospect of bullying in mainstream schooling and that made  home-schooling an advantage. Whilst Ms H acknowledged that a child with D’s difficulties might be bullied in a mainstream school, this was not Ms H’s own experience and expertise as regards special education units within schools. Ms H was confident that D would greatly benefit from attendance at such a school.

    266.The mother challenged Ms H about the home-schooling issue by reference to the mother’s capacity to engage with other home-schooling parents and other home-schooled children to attain social interaction for D. The mother also referred to the feature that Education Queensland had approved her home-schooling plan. Ms H firmly maintained notwithstanding these things, the advantages she saw for D in undertaking mainstream schooling in preference to home-schooling. In summary, Ms H’s evidence was strongly to the effect that D would develop better in a structured school environment rather than undertaking home-schooling with his mother. 

    Ms J, psychologist

    267.Ms J maintained her recommendation that D not be home-schooled during lengthy cross-examination by the mother on the topic. Ms J stated that the mother’s concerns about the potential for bullying at a school did not affect Ms J’s view that it was in D’s best interests to attend a formal school. Ms J raised the following advantages for D in attending school:

    a)Schools (whether special schools or mainstream schools with a special unit) are mandated to increase inclusion and are designed to progress children into a mainstream school environment;

    b)Access to trained professionals in small classes to assist D;

    c)Professionals are better equipped to know what to teach D;

    d)Ability to teach D the skills to deal with and manage his own behaviour;

    e)Would assist D to learn about personal space by having the opportunity to be around other children regularly and socialise;

    f)Some schools offer therapeutic services above and beyond that funded by NDIS although such services are subject to the funding available at particular schools;

    g)Programs such as V School’s Early Days program offers courses to assist parents to prepare autistic children for school; and

    h)D’s attendance at school would provide respite to the mother.

    268.Ms J’s recommendations for D’s schooling were stated in her report as follows:

    18.1.   In summary, D is a lovely young boy who is likely quite frustrated by his significant communication difficulties paired with his difficulties understanding and interacting with the social world and, strong sensory processing differences. Information obtained in the current assessment indicates that D has potential to build many more skills, would benefit greatly from further communication, social-emotional and behavioural-based intervention as soon as possible. Both his profile and his current contextual circumstances point to engagement in the school-based education system being highly recommended, initially in a learning support unit with a supportive team of special education teachers and supporting allied health professionals. Or at a school specifically tailored for children with significant communication or developmental needs, for example, FG School, children with autism, for example V School. These alternatives provide center-based education and intervention services through multidisciplinary input       to provide schooling alternatives to mainstream schools while supporting and empowering inclusion into mainstream school when appropriate.

    …

    19.5.   In terms of education, home-schooling appears to be a premature and undesirable decision at this point in time. Given the history of non-compliance with     professional advice, possible restricted access to therapeutic services, and questionable developmental      progress made to date, it is recommended that trained professionals in communication and behavioural intervention as well as special education trained professional teachers and allied health professionals are leading therapeutic intervention and educational work with D. Further it is recommended that this process involve parent support and education in how to understand D’s profile and how to empower his           development.

    …

    58.7.   As a final point, it has been recommended by the current assessor and at a minimum, also Professor SS, that D can transition to a school-based educational setting that has learning support services, or a specialist school for children with developmental          disabilities. It has further been strongly recommended that D would further benefit from multidisciplinary team lead intervention focussing on speech and language skills, social interaction, emotion regulation skills, school preparedness and caregiver education.

    (As per the original)

    269.Ms J also recommended that the mother participate in programs such as V School’s Early Days which provides courses for parents to assist them to prepare their children for school.

    270.Ms J’s reference to the recommendation by Professor SS appears to be reference to the report prepared by Professor SS on 13 September 2016 when D was four years of age. That report states, inter alia: 

    …

    I understand that Ms Jebbett is very keen on homeschooling, but I think this suggestion is premature and that he currently needs enrolment in a conventional early intervention program with access to the relevant expertise and to develop Ms Jebbett’s abilities in supporting D’s development in a number of areas.

    (As per the original)

    271.Ms J raised concerns that D was not currently “school-ready” for a mainstream school and that he needed to undertake school preparation if he were to transition into a mainstream school. However, Ms J took the view that D would be ready to commence at a special school or a school with a specialty support unit. Ms J said that the aim is to prepare D for the real world but not to throw him in without proper support.

    P Group

    272.Ms S performed a general management role within Montrose; broadly managing therapy and support services.

    273.Ms S provided information as to the services provided by t including occupational therapy, speech therapy, psychology and physiotherapy. 

    274.Ms S stated that she had never met D however she had spoken to therapists providing therapy for D and had also spoken to the mother over the telephone on occasion.

    275.Ms S stated that it was her view that D be enrolled in a formal education program as opposed to being home-schooled. By that, she specified that she meant a special school or a public school with a specialist program. Ms S’s recommendation in this regard was based largely around providing D with social engagement. Ms S was aware of a number of schools in the W School catchment which provided support for students with high needs. Ms S was of the understanding that in order to qualify for a special school, D would need to be diagnosed with an intellectual impairment and as such, D may not meet the criteria for entry into a special school. Ms S believed that a diagnosis of ASD would be sufficient for D to receive support at a mainstream school. 

    276.Ms FF, an occupational therapist formerly employed at the P Group gave oral evidence at trial under subpoena.

    277.In relation to D’s education, Ms FF stated that she could not comment on whether home-schooling or mainstream schooling would best meet D’s needs given the time that had passed since she last saw D. That said, Ms FF did consider that at the time she last saw D he would have benefited from more socialisation. Ms FF recommended that the mother take D to a playgroup to give D the opportunity to socialise with other children. Ultimately the playgroup did not go ahead as it required at least three children to be enrolled in order for it to proceed. 

    278.Ms FF stated that the mother was a demanding client and had made requests of her to change the chair in her offices and to bring D more challenging toys to play with.

    Professor SS

    279.Professor SS did not give evidence during the proceedings however a letter he had written dated 13 September 2016 was tendered into evidence, which has already been quoted.

    conclusions as to the schooling issue

    280.I accept the overwhelming evidence of the experts (Ms H and Ms J) and the other independent professionals referred to that D’s attendance at formal or mainstream schooling holds enormous potential benefits for D which home-schooling by his mother does not. Conversely, I accept the evidence of those sources as to the disadvantages to D of home-schooling by his mother.

    281.Whilst the mother is an intelligent, multi-lingual and tertiary educated person her evidence does not identify any particular education, training or experience she possesses as would equip the mother to formally educate a child, much less a child with D’s particular needs. There is ample evidence that if a task appears challenging for D, or he does not particularly like something he is directed to do, the mother’s approach is to have D desist from engaging in the task. Whilst that is an understandable approach from a devoted mother to her only child, it is not necessarily an approach which serves D’s long-term interests in gaining an education, or indeed in receiving appropriate therapy, as has earlier been discussed.

    282.I do not accept that D is at a great risk of bullying in mainstream schooling or that such a risk is in and of itself sufficient to be a reason to deny to D the obvious other benefits of formal education as identified by the various experts in this case.

    283.I accept the difficulties of the kind identified by the mother as to D’s resistance to attend at school and to comply in all respects with school rules may very well be encountered. However, in my judgment, relying as I do on the expert evidence in the case, if D is to have any prospect of achieving some level of independence in the longer term, and to find his own way in the world, he needs to now begin the process of relating with his peer group and interacting with individuals, other than his mother and therapists.

    284.In my judgment, to consign D to home-schooling by his mother would socially isolate him and limit his outlook and perspectives. I accept that formal education has the advantages for D identified by each of Ms H, Ms J and the other witnesses as earlier discussed, in comparison to home-schooling.

    285.I generally accept the submissions on this topic made on behalf of the ICL.  In particular I accept the submission that:

    40.      Despite early and consistent feedback about the benefit of D attending a public school with a special education facility, the mother’s views about home schooling have persisted, and seem to have developed by placing emphasis on anecdotal stories about bullying in public schools, without any consideration of the benefits or advice she has received about the           benefits of a school-based education to D.

    (Emphasis in original) (Footnotes omitted)

1. By Ground 2 of her appeal, the mother complains about the Court’s reliance upon expert evidence. The mother in her submissions agitates propositions to the effect that the experts either lied or were deliberately misleading or inaccurate in the evidence they gave me at trial.

2. As is reflected in the above extract from the reasons for judgment the relevant experts were called to give oral evidence at trial and were cross-examined, not only by the mother, but by counsel for the ICL. I expressed my conclusions in respect of that evidence in terms of accepting the overwhelming evidence, at [280] of the reasons for judgment set out above.

3. The mother also complains in her submissions today on this application in terms of her capacity to ensure that D attends mainstream schooling. She went so far as to suggest that something untoward might happen to her at the hands of D (now aged seven years) if she attempted to force him to go to school. That was a topic also visited in the trial of the proceedings and I took it into account when I set out at [283] of the reasons the following:

   283.I accept the difficulties of the kind identified by the mother as to D’s resistance to attend at school and to comply in all respects with school rules may very well be encountered. However, in my judgment, relying as I do on the expert evidence in the case, if D is to have any prospect of achieving some level of independence in the longer term, and to find his own way in the world, he needs to now begin the process of relating with his peer group and interacting with individuals, other than his mother and therapists.

4. In my judgment, the mother’s complaints about expert evidence are no more than a revisiting of her complaints about the experts at trial simply on the basis that they reached concluded views that do not support her views, either about the schooling issue, or in relation to D’s parenting more generally.

5. By Ground 4 of her appeal, the mother complains about the orders in relation to having to provide the father with her address and contact details and to keep him informed of those things.

6. In her oral submissions today it seemed that the mother’s complaint was directed to her having to comply with the order that she provide contact and address details to the father, when he had not done the same in respect of her. Whether or not that is so, it is a matter for enforcement of the orders if either party contends the other has not complied in any material respect.

7. Importantly though, the provisions in the orders in relation to the father being at least consulted about decisions concerning D, and in relation to the contact details, provide something of a safeguard in respect of the concerns held concerning D’s future care in the sole care of his mother.

8. The mother misunderstands the orders made for parental responsibility as is clear from paragraph 281 of her affidavit in support of this application speaking of a “dead-lock in decision making”. With all due respect to the mother, on a proper reading of the orders made, an order was made for the mother to have sole parental responsibility for D with only an obligation cast upon the mother to inform the father of decisions that she proposed to make and to seek his input. In the end result though, the orders grant the mother the sole power to make the ultimate decision so there cannot be any “dead-lock in decision making” because that power resides solely with the mother.

9. In my judgment, granting a stay of these orders would be contrary to D’s best interests. Moreover, nothing to which I am directed on this application persuades me that the failure to grant a stay of any of the orders the subject of this application would render the mother’s appeal nugatory.

10. True it is that the mother needs to comply with the orders with respect to D’s schooling, but it is not demonstrated to me that there is any realistic prospect of success of the mother’s appeal from those orders based as they are upon a significant body of expert evidence. What the mother seeks to do on appeal is to persuade a Full Court that her views ought prevail over the significant body of expert evidence considered at trial. As it seems to me the prospect of that occurring is remote and not sufficient to justify a conclusion that the orders should be stayed.

11. For these reasons, the mother’s application for a stay of the subject orders is dismissed.

ICL’s oral application for costs

1. An order for costs of this application is sought by the ICL in an amount of approximately $1,200 against the mother.

2. Whilst the mother’s application for a stay of orders has not been successful, I did not make a finding that the application was not brought on a bona fide basis or that the mother is bona fide in her approach to her appeal from the orders made.

3. The mother’s financial circumstances are constrained, she is not engaged in any external employment and is dependent upon a carers pension for her income, together with some financial assistance in the order of $250 per week from the father’s family in terms of assisting with D’s needs.

4. In these circumstances I am satisfied that an order for costs would impose financial hardship upon the mother and on that basis I decline to make an order for costs in favour of the ICL.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Kent delivered on 22 October 2019 edited to correct grammatical errors and some infelicity of expression.

Associate:

Date:  24 October 2019