Kanes and Thorley

[2017] FCCA 3125

FEDERAL CIRCUIT COURT OF AUSTRALIA

KANES & THORLEY [2017] FCCA 3125

Catchwords:
FAMILY LAW – Parenting – change of schooling – father protesting about the change the mother wants to make – mother unable to afford private school without financial assistance from her brother – unsatisfactory nature of that arrangement – application refused.

Legislation:

Family Law Act 1975 (Cth), s.60CC(3)

Applicant: MS KANES

Respondent: MR THORLEY

File Number: MLC 7782 of 2010

Judgment of: Judge Wilson

Hearing date: 7 December 2017

Date of Last Submission: 7 December 2017

Delivered at: Melbourne

Delivered on: 13 December 2017

REPRESENTATION

Counsel for the Applicant: Dr R Smith

Solicitors for the Applicant: Barbayannis Lawyers Pty Ltd

Counsel for the Respondent: Mr R. Weil

Solicitors for the Respondent: Dominic Esposito Solicitors

ORDERS

1. Paragraphs 1, 9, 10 and 11 of the interim and final orders sought in the amended initiating application filed on 2 June 2017 are dismissed.

2. This proceeding is fixed for trial on 10 December 2018 at
   10.15 a.m. on a duration of one day.

3. On or before 4.00 p.m. on 12 November 2018 the applicant must, if the applicant chooses to file any, file and serve any affidavit on which the applicant intends to rely at the trial of this proceeding.

4. On or before 4.00 p.m. on 26 November 2018 the respondent must, if the respondent chooses to file any, file and serve any affidavit on which the respondent intends to rely at the trial of this proceeding.

5. On or before 4.00 p.m. on 5 December 2018 the legal representatives for the applicant and the respondent must –

   (a)confer over evidentiary objections and, in respect of those objections not agreed, prepare a table of remaining objections setting out the relevant sentence the subject of the objection and the evidentiary basis of the objection;

   (b)confer with a view to formulating an agreed list of issues to be determined at trial; and

   (c)file and serve his, her or its case outline.

6. The case outline must include –

   (a)a chronology;

   (b)the applicant’s and the respondent’s (as the case may be) contentions about the matters addressed in ss.61DA, 65DAA, 60CC(3) and, where relevant, the matters addressed in ss.60CG, 61F, 65DAB, 65DAC of the Family Law Act 1975 (Cth); and

   (c)the precise orders as are sought.

IT IS NOTED that publication of this judgment under the pseudonym Kanes & Thorley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7782 of 2010

MS KANES

Applicant

And

MR THORLEY

Respondent

REASONS FOR JUDGMENT

1. On 12 April 2017 I made consent orders fixing the hearing of an application by Ms Kanes, the mother, for orders permitting her to enrol her daughter X in (omitted) School (“(omitted) School”) for the school year commencing 2019. X’s father, Mr Thorley, opposed the mother’s application.

2. The central question in this interim application was whether it was in the best interests of X to accede to the mother’s application.

3. For the reasons that follow, I am not persuaded it is in the best interests of X to grant the mother the orders she seeks. I have considered the matters set out in s.60CC of the Family Law Act 1975 (Cth) (“the Act”) insofar as they are relevant to this discrete application as well as the authorities both counsel relied on in the hearing.

4. To understand the reasoning for the conclusion I have reached, it is necessary to say a little about the facts of this case. Both counsel requested me to provide detailed reasons for my decision, such is the antagonism that pervades the current relationship between the mother and the father. 

5. The mother is a (occupation omitted) who, at the time of the hearing of this application, was employed in that capacity at (employer omitted). According to the July 2017 family report prepared by Ms D, psychologist and family consultant,[1] the mother is 42 years of age.

   [1] Exhibit “D1” to the affidavit of Ms D sworn 8 August 2017.

6. The father was 56 years of age when Ms D conferred with him. He gave his occupation as a (occupation omitted) in the (employment omitted) industry.

7. It was common cause that the mother and father commenced cohabitation in (omitted) 2003, they married on (omitted) 2005, they separated in April 2007 and they divorced on 6 November 2010.

8. Their only child of the marriage, X, was born on (omitted) 2007. The father gave evidence that he has two children other than X, namely A, born (omitted) 2001 whose mother is Ms N and B born (omitted) 2014 whose mother is Ms M. According to the evidence adduced in this case, A is a student at (omitted) School who expects to complete her secondary school education in the immediate future.

9. The undisputed evidence was to the effect that the mother and father separated when X was three months old and that X has lived with the mother since separation. The father has the benefit of time with X according to an agreed regime pursuant to which X is in the father’s care each alternative week from Thursday afternoon to Monday morning, half of all school holidays and on special occasions. The mother deposed to there being no parenting orders or a parenting plan. It may be fairly inferred that both parents seem capable of cooperation with one another in respect of the time X spends with each. The parents are to be commended for that co-operative approach.

10. As a small child, X attended (omitted) School and has subsequently attended (omitted) for her primary education. A decision must now be made in relation to X’s secondary education, especially the school that she will attend.

11. In essence, the mother contended that it is her wish for X to attend (omitted) School for X’s secondary school education. The mother supported her expressed wish by contending that the mother recently purchased an apartment approximately one kilometre from (omitted) School, that X will return to her friendship group formed when she was in pre-school and that X has told her mother as well as Ms D, who conferred with X for the purposes of the preparation of her July report, that X wishes to return to (omitted) School.

12. The father opposed the proposal for X to undertake her secondary education at (omitted) School for several reasons. First, he said that a division between siblings would be orchestrated by sending X to (omitted) School when A had been educated at (omitted) School. The father specifically spoke of a concern of introducing the notion of privilege as between the siblings. Second, he said he was unable to afford the school fees for (omitted) School. Third, he said that X should have the benefit of stepping into the shoes of her older sister A by following A at (omitted) School in the same way he stepped into the shoes of his brother when he was young.

13. When I heard this application, X was 10 years of age. Ms D placed a great deal of store on the fact that X had expressed her wishes and that, in the opinion of Ms D, X had achieved the necessary mental, emotional and behavioural development such that her wishes should be given effect by the making of the orders sought.

14. I disagree.

15. I accept that the wishes of X are relevant and I am required to take into account those wishes pursuant to s.60CC(a) of the Act in an application such as this. But those wishes are not the absolute determiner. X’s wishes are among the many matters that I must take into account under s.60CC(3) of the Act. In addition, while I accept that X may presently hold certain views, even stridently held views, she is after all 10 years of age and her views will inevitably fluctuate, possibly very many times, between her current age and the date when she attains her majority.

16. Before descending into the detail of this current application, it is relevant to address an issue on which Dr R focused, namely, the seemingly inconsistent position adopted by the father in agreeing to X attending (omitted) School at preschool then (omitted) for primary school yet he showed resistance towards X attending secondary school at (omitted) School. The father said he begrudgingly agreed to X attending primary school at (omitted) as a compromise in negotiations for time to be spent with X. Naturally, it was not proper for me to embark upon a detailed investigation of that compromise. That said, it was plain enough that the father took the view that he agreed to X attending (omitted) School as the quid pro quo for time that he spent with X. He left me with the impression that while he may have agreed to X attending (omitted) School, any such agreement for her to attend at that school was not the exercise of his free will in the matter. As far as X’s attendance at primary school at (omitted) School was concerned, the father explained that the mother was a (occupation omitted) at that school and she obtained discounted rates on the fees. Self-evidently, that was attractive to the father to say nothing of the excellent reputation enjoyed by (omitted) School.

17. But in relation to X’s secondary school education, the father was immovable in his opposition to X returning to (omitted) School.

18. Before analysing the competing positions on point, the uncontested evidence revealed that (omitted) School enjoyed a superior academic ranking when compared with (omitted) School. However, to my mind that was to split hairs because both (omitted) School and (omitted) School are well-known for being excellent schools within Melbourne, the point of differentiation being that (omitted) School is the more expensive of the two. So much accorded with the undisputed evidence in this case.

19. With refreshing frankness, the father conceded that he would be unable to contribute to the school fees of (omitted) School. Having examined the father’s financial statement sworn 6 December 2017, it was readily apparent that the father’s concession was properly made. His financial statement showed a deficit of $233.00 per week once all personal expenditure was accounted for out of his income.

20. In an endeavour to meet that point, the mother relied on the evidence of her brother, Mr J, who swore an affidavit on 3 April 2017 and gave viva voce evidence before me to the effect that he has the financial capacity and willingness to meet some or all of X’s school fees if called upon. Mr J impressed me as X’s devoted uncle and a person who was selfless in his approach towards advancing X’s best interests by doing whatever he could to ensure that X obtained the best education that was determined appropriate for her.

21. But that rather beggared the point.

22. The father took umbrage at the notion that his former brother-in-law would usurp his role as father by bridging such a substantial financial outlay by meeting the whole or part of X’s educational fees. The extent to which each of X’s parents have fulfilled or failed to fulfil his or her obligations to maintain X is a matter I must take into account in s.60CC(3)(ca) of the Act. The father currently maintains X by way of child support. As to the issue of school funding, Mr Weil of counsel for the father cross-examined X’s mother and X’s uncle on financial issues pointing out that the mother’s capacity to meet (omitted) School’s school fees was tenuous according to the published tuition fees scheduled for 2019 with the consequence that Mr J would be called upon, almost as a matter of certainty, to meet a substantial amount of those tuition fees. It is well known that with private schools, the payment of tuition fees is but part of the expenses associated with sending a child to an expensive school.

23. I entertain no doubt whatsoever that if X were to be enrolled at (omitted) School, the mother’s income would be insufficient to meet the whole of X’s expenses associated with attending (omitted) School and that the mother’s brother would inevitably be called upon to meet a substantial portion of X’s educational expenses. Mr J said he was willing and able to meet those expenses. Naturally, I accepted his evidence on that point. Likewise, it is well known that the school fees of a very large number of students at private schools in Melbourne are funded by grandparents or willing relatives, rather than the relevant child’s parents.

24. However, Mr Weil brought to my attention that the current enrolment regime at (omitted) School requires both parents in this case to bind themselves to the legal obligation to meet X’s school fees. The father is unwilling to do that. While it is true that I could make an order relieving the father of that obligation, in my view it would be wrong to make an order mandating X’s uncle to assume the legal responsibility for X’s school fees. And, if X’s attendance at (omitted) School is to be funded in whole or in part by Mr J whose willingness to pay X’s school fees depends on his ongoing good grace, then a very unstable platform exists for X’s entry into ongoing participation in the school life at (omitted) School.

25. Further, pursuant to s.60CC(3)(l) of the Act I am required to consider whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings. Given the enmity between the parties with respect to this particular issue, I must make such an order. Neither parent can fully fund the tuition fees for (omitted) School. Indeed, both parties together are unable to. In the event that X’s uncle is unable to meet the shortfall for whatever reason, be it change in financial circumstances or his relationship with his sister, the parties will be unable to pay for (omitted) School tuition fees and the matter may end up back before me for further determination. I do not consider this to be a satisfactory outcome with respect to the issue of X’s schooling.

26. Other than pointing to X’s reunification with her preschool friends, the mother gave no satisfactory explanation for her insistence on X attending (omitted) School. True, the mother recently purchased accommodation near (omitted) School. But that in and of itself is neither here nor there. Any number of other private schools operate in the (omitted) region. So far as X reuniting with her preschool friends was concerned by her enrolling in (omitted) School, I was not at all persuaded that the point carried any weight. Her school friends during her primary schooling at (omitted) School have been (omitted) School students, to state the obvious. Whether X connects socially in the years to come with any of her friends from her preschool days at (omitted) School remains to be seen. To my mind, it would be quite wrong to impose upon the father the financial burden associated with X’s attendance at (omitted) School, merely on the off-chance that she might reunite with an uncertain and undetermined collection of persons who she may have met during her preschool years.

27. Among the various reasons given by the father for his opposition to X attending (omitted) School was his desire for X to attend (omitted) School by reason of the advantages conferred by what he described as the ‘sibling legacy’. He said that in his view X would enjoy an advantage from the links and beneficial associations her older sister A enjoyed while at (omitted) School. Dr Smith submitted that any such contention was illusory because A and X would not be attending (omitted) School at the same time and A will graduate from secondary school by the time X commences secondary school. It seemed to me that the sibling legacy contention was nebulous without knowing in detail about the nature of the links and associations that A formed at (omitted) School. While I accept the father’s evidence to the effect that A has benefited from her time at (omitted) School, no evidence was given to the effect that X will necessarily experience an equally beneficial time at (omitted) School.

28. The father gave evidence of his concern that X receiving a private education while her siblings receive a public education would cause a division between the siblings and that it would introduce the notion of privilege for X as against A, B and the father’s child yet to be born. The nature of X’s relationship with each of her siblings is a matter I am required to take into account under s.60CC(3)(b) of the Act. There is no evidence to suggest that X attending (omitted) School would result in a breakdown of the relationship X currently enjoys with A, or will enjoy with B and her third, yet to be born, sibling. The father agreed with Dr R when it was put to him in cross-examination that A and X have an excellent relationship. The strength of the foundation of the father’s concern was destabilised by the fact that X has attended private primary school whereas A has attended a public school and their relationship has remained a strong and close one notwithstanding that.

29. Let me now turn to the evidence of the family consultant,

    
    

    Ms D.

30. In short, I was not impressed by the evidence of the family consultant. To my mind, she did not adequately investigate the matter upon which she provided the recommendation recorded in paragraph 120 of her report. Instead, she appeared to have been swayed, almost to the exclusion of all other considerations, by the expressed wishes of X to attend (omitted) School. Ms D took the view that the father’s continued opposition to X’s wish presented the possibility of a negative impact upon his good relationship with X with the consequence that such a good relationship could be undermined.

31. In my view the point need only be stated for its illogicality to be demonstrated. In other words, Ms D conveyed the view that unless the father acceded to his 10-year-old daughter’s wishes, their close bond would be eroded. I take the view that such a conclusion is errant nonsense. The father’s vive voce evidence on a number of occasions was that he enjoyed a close and wonderful relationship with X. There is no evidence to suggest that their bond would be eroded if X attends (omitted) School against her apparent wishes.

32. I also canvassed with Ms D whether she took into account, when making her recommendation that X attend (omitted) School, which school was academically superior. The exchange was as follows –

    HIS HONOUR: Okay. Did you take into account, in assessing the various competing options, which of the two schools that were primarily under consideration in this case, that is to say (omitted) School on the one hand and (omitted) School on the other, was superior academically? – Mr – well, actually both parents but primarily Mr Thorley told me that (omitted) School VCE score for 2016 was higher than (omitted) School.

    Well, did you take that into account in assessing your recommendation in this case? – No. It wasn’t – it wasn’t at the – no. I didn’t actually, not at all.

    Well, surely the academic education that a child is going to receive is every bit as much in the interests of the child as is the child’s wish? – Yes.  That’s true.

    So did you take it into account? – That’s true, but there are –

    Just a moment. Did you take it into account? – The academic –

    Academic standing of each school? – No, I didn’t.

    Why not? – Because I considered there were a range of other factors that have led the child to think about (omitted) School. Cohorts change over the years between schools. Teachers change. We will see what the – the 2017 results are. It fluctuates.

    
    

    It’s flexible.

    Well, that’s –? – So I – so I didn’t. No.[2]

    [2] Transcript of proceedings, 7 December 2017 at p.93.

33. The fact of the matter remains that absent external funding, neither parent can afford (omitted) School fees. If such reality produces displeasure in a 10-year-old child, then so be it. If the child reacts badly to that reality, I will not countenance any such petulant behaviour by compelling the father to embark upon the financially disastrous results of requiring him to be jointly responsible for (omitted) School fees. In my view the circumstances in this case do not warrant an order being made permitting X to attend (omitted) School merely to give effect to the expressed wishes of a 10-year-old child. That is all the more when any such order will necessarily insinuate in financial matters the ongoing involvement of X’s uncle Mr J to a very deep extent.

1. A good deal of time was spent during the hearing of the interim application on the circumstances surrounding a collection of text messages exchanged between the mother and X on 11 March 2017.[3] Apparently, X wished to attend a party of which the father disapproved. Between 1.42 p.m. and 9.31 p.m. that day the mother and X exchanged an array of text messages. The subject of those exchanges went beyond X’s attendance at the proposed party. They provided a snapshot of the vitriol felt by the mother towards the father.

   [3] Exhibit “T-15” to the affidavit of Mr Thorley sworn 11 April 2017.

2. One of the matters I am required to take into account under s.60CC(3)(i) of the Act is the attitude towards X and to the responsibilities of parenthood demonstrated by each of the mother and father. At once let me point out how wrong it is for a parent to embroil his or her child in the matrimonial disputation between parents. Far from shielding X from that disputation, into X’s mind the mother actively injected her own views and attitudes towards the father, malevolent as they were. Taking the exchanges from the mother, they included –

   a)“don’t feel pressured by him darling. Do what makes you happy”;

   b)(in reference to the father’s refusal to agree to X attending the party) – “Yes I know. I’m very cross with him though. It’s not ok X and if you want to go I will try to make it happen … It’s just mean”;

   c)“Don’t let him brainwash you with that excuse. He’s a bully and that’s why you belong with me”;

   d)“Don’t want men like that around you anymore”;

   e)“He’s making really bad choices for you and I will do everything I can to help you stand up to him”;

   f)“Don’t say a word about schools to him. Just tell him to talk to me. You belong at (omitted) School. Don’t let him push you around”;

   g)(in reference to (omitted) School fees) – “That’s rubbish. I can afford it and he knows it. What a stupid thing to say about a whole school of children that he doesn’t know. Do you see that?”;

   h)“Don’t worry about him. Silly man”; and

   i)“Thank you babe. Don’t be scared of him. I’m not, if you are unhappy there I will fix it”.[4]

   [4] Exhibit “T-15” to the affidavit of Mr Thorley sworn 11 April 2017.

3. Aside from the inappropriateness of the mother embroiling her daughter in the details of the skirmishing between the mother and the father, the above exchange revealed an attempted poisoning of X towards her father. The above exchange revealed, among other things, the mother’s view that the father was a bully, that X should not have men like him around, that the father was attempting to brainwash X and that the father was a silly man.

4. The mother apologised to me for that collection of text message exchanges. The family consultant attempted to slough off the content of those exchanges on the basis that they represented an aberration. Precisely how she was in a position to say that was beyond me. I reject the mother’s apology and I reject the family consultant’s attempt to brush those exchanges aside.

5. They were derisive, inappropriate, malevolent and they revealed with glaring clarity the venom held by the mother towards the father.

6. Mr Weil submitted that the mother’s intention in seeking enrolment for X at (omitted) School was in reality a desire to inflict impermissible vengeance upon the father. There is force in that submission. The nature of the relationships between X and her father and X and her mother are reported by both the parents and Ms D to be close, gentle, loving and affectionate. That is something I must take into account under s.60CC(3)(b) of the Act. It is completely inappropriate for the mother to seek to diminish and undermine X’s relationship with her father in that way, revealed by those text messages, and it must cease immediately.

7. I am not persuaded that the parents can afford (omitted) school fees. The only way they could afford (omitted) school fees is by involving the uncle. I cannot compel Mr J to pay the shortfall in (omitted) school fees for the whole of X’s secondary schooling at that school.

8. I am persuaded that the mother seeks to exact vengeance upon the father by attempting to enrol X in a school of which the father disapproves and which he cannot afford.

9. Dr Smith sought an order for sole parental responsibility to be conferred upon the mother on the limited issue of schooling. I refuse to make such an order.

10. I dismiss this application and set the matter down for trial.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Date:  13 December 2017