Karr and Karr
[2010] FMCAfam 1274
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KARR & KARR | [2010] FMCAfam 1274 |
| FAMILY LAW – Children – whether 11 years old should be allowed to attend boarding school based on child’s wishes – where no issue with existing school – where the best interests of all the children of the relationship are to be taken into account – not just that of one child who wishes to attend boarding school – financial considerations in attending boarding school – where no property settlement has been reached – future employment of both parents is unknown. |
| Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 64B, 65AA, 65D, 65DAB, 65DAC |
| R & R : Childrens’ Wishes [2000] FamCA 43 H v W (1995) FLC 92-598 Doyle & Doyle (1992) FLC 92-286 |
| Applicant: | MS KARR |
| Respondent: | MR KARR |
| File Number: | DNC 85 of 2010 |
| Judgment of: | Turner FM |
| Hearing dates: | 21 September, 11 & 13 October 2010 |
| Date of Last Submission: | 13 October 2010 |
| Delivered at: | Darwin |
| Delivered on: | 19 November 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Farmer |
| Solicitors for the Applicant: | Withnalls Lawyers |
| Counsel for the Respondent: | Ms Truman |
| Solicitors for the Respondent: | Angela Ferdinandy |
ORDERS
That the application by the mother for the child of the marriage [X] born [in] 1998 to attend boarding school at [F] School in [T] Queensland in 2011 is hereby dismissed.
That if requested by both parties, Mr. V make himself available to speak to both parties together in the absence of [X] about the strategies to be considered in informing the [X] that she will not be attending boarding school in 2011.
IT IS NOTED that publication of this judgment under the pseudonym Karr & Karr is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNC 85 of 2010
| MS KARR |
Applicant
And
| MR KARR |
Respondent
REASONS FOR JUDGMENT
Application
The only issue currently before the court requiring determination is an application by the mother that the oldest child of the marriage, [X] born [in] 1998 be permitted to attend and board at boarding school at [F] School in [T] Queensland for Year 7 in 2011.
The father opposes the application and seeks that [X] remain in her current schooling in Darwin at [E] School.
Background
Because of the limited nature of proceedings, I will only briefly outline the relevant facts.
The mother is aged 47 and is working as a [omitted].
The father is aged 51 and is also working as a [omitted].
The [business] is a family owned business which as a result of property proceedings between the parties is in the process of being listed for sale.
The parties commenced cohabitation in 1997 and married in 1998.
There are three children of the marriage, [X], who is the subject of these proceedings born [in] 1998 (aged nearly 12) [Y] born [in] 2002 (aged 8) and [Z] born [in] 2004 (aged 6).
The parties separated under the one roof in November 2009 and continued to do so until around March 2010.
On 19 March 2010, FM Terry ordered until further order that the parties have equal shared parental responsibility for all children and that upon the mother leaving the former matrimonial home that the children live week about with each parent.
The week about shared care arrangements continue as per the interim orders.
[X] is currently in Year 6 at [E] School.
The application by the mother is for [X] to be permitted to commence Year 7 at [F] School [T], Queensland and to board fulltime at the College.
The Law
Part VII of the Family Law Act 1975 deals with all aspects of proceedings in respect to children.
The courts power to make a parenting order is contained in s.65D(1):
“(1) In proceedings for a parenting order, the court may, subject to s. 61DA (presumption of equal shared parental responsibility when making parenting orders) and s.65DAB (parenting plans) and this Division, make such parenting order as it thinks proper”
The meaning of a parenting order is set out in s.64B.
As to the ability of the court to make orders in respect to the education of the child, this is canvassed in s.64B(2)(i):
“(2) A parenting order may deal with one or more of the following:
i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.”
Parental responsibility is defined in s.61B:
“In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”
Section 61C provides that each parent has parental responsibility until the child turns 18 years of age.
As a consequence of the court orders made on 19 March 2010 the parties have equal shared parental responsibility.
The effect of an order for shared parental responsibility is set out on s.65DAC:
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.”
Major long term issue is defined in s.4 as:
"major long-term issues" , in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child's education (both current and future); and
(b) the child's religious and cultural upbringing; and
(c) the child's health; and
(d) the child's name; and
(e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
When a court is required to make a parenting order then regard must be had to the objects and underlying principals as set out in s.60B:
“ (1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.”
Further as provided for in s.60CA:
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration”
The requirement to consider best interests of a child as a paramount consideration is reiterated in s.65AA:
“S. 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
In determining the child’s best interests the primary and additional considerations as are relevant as set out in s.60CC must be considered:
“(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
(5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
(6) For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.”
Evidence
The mother is legally represented.
The mother relies on the following documents:
i)Her financial statement filed 30 March 2010;
ii)Her affidavit filed 15 September 2010.
The mother was cross-examined.
The father is legally represented.
The father relies on the following documents:
i)His financial statement filed 18 March 2010;
ii)His affidavit filed 15 March 2010 (paragraph 46 only);
iii)His affidavit filed 20 July 2010;
iv)His affidavit filed 16 September 2010;
v)Written submissions filed 13 October 2010.
The father was cross-examined.
I find the both the mother and the father to be credible witnesses and child focussed in their responses.
Each was very passionate in their respective positions and offered well thought out and plausible arguments in their favour.
In addition to the parties’ material and evidence I also have regard to the family reports of the Family Consultant Mr. V released on 28 May 2010 and 17 September 2010 in addition to the oral evidence provided by Mr. V.
Mr. V was cross-examined by each of the parties.
Further, Mr. C, the school principal of [E] School, (the school that [X] currently attends) gave evidence and was cross-examined.
Mr. C was an impressive witness. His commitment to the education provided by his school is outstanding and he provided relevant insight as to [X], her performance at school and his involvement with [X] in respect to the issue of the boarding school.
In considering the matter, I have had regard to each of the affidavits referred to in the course of the proceedings; to the oral evidence given by each of the parties and their witnesses in the proceedings and to the submissions made on behalf of each of the parties.
Findings of fact are made on the balance of probabilities, having regard to the evidence and my observations of the parties and witnesses.
In what follows, statements of fact constitute findings of fact.
The application of the law to this case
In determining what is in the best interests of [X] I must assess the pluses and minuses if [X] was permitted to attend boarding school, or to remain at her current school.
The parties are sensible and intelligent parents who have despite the separation managed to work towards a beneficial interim arrangement for all the children, except for this one issue that needs to be determined before the start of the 2011 school year.
My task is not an easy one. The issue requiring determination will not in any significant way impact on [X] reaching her full potential as an adult. Both parents are loving and supportive of their daughter and will continue to play a very positive and important role in [X]’s development whether [X] stays in Darwin or boards in [T].
Further each party has created solid foundations in support of their respective submissions and this is not a case that turns on the credibility of the witnesses.
The mother wants [X] to attend boarding school in 2011 at [F] School commencing in Year 7.
The mother states that this has been a long term dream and goal of [X], and a dream capable of being realised by the parents.
Further the mother believes that boarding school will offer a positive and rewarding experience for [X] and that [X]’s absence from her home will not adversely impact on her relationship with either parent or her younger sisters.
Lastly as the maternal grandparents live near [T] the mother is confident that they will provide support as needed for [X].
The father is of a different view.
He is concerned about the impact being away from home will have on [X] and the impact her absence will have on her sisters.
He is concerned that [X] does not have the maturity to cope with a boarding school experience at such a young age and that it is too risky for [X] to attend an all girls school as she may fall out with her peer group and suffer bullying and isolation.
The father is not convinced that this is a focussed goal of [X], as [X] gets passionate about many things and then moves on to the next project.
Also the father cannot see what [F] School has to offer that [E] School doesn’t already provide.
An additional concern raised by the father is the ability of the parents to fund boarding school.
Lastly that father has indicated that perhaps boarding school is something that could be considered in the future for [X], for example Year 9 or 10, at the age of 14 years but not in Year 7 at the age of 12 years.
I now turn to the relevant primary considerations in s.60CC (2).
The benefit to the child of having a meaningful relationship with both of the child’s parents
Prior to the separation, with both parents heavily involved in the family business, the primary care of the children was the responsibility of the mother, and the father spent long hours in running the business.
The father referred to this arrangement as an agreed division of labour with him looking after business logistics after work whilst the mother attended to the children.
[X] commented in the course of the family report interviews that prior to separation her father was never particularly involved in caring for them.
Since separation the father has regretted this division of labour and is keen to care for the girls as much as he can.
The father admits that [X] is much more aligned with the mother than him, but that [X] is also clearly close to him and appears to be relaxed with him.
Further the father believes that he is being successful in the week about arrangements with the younger children, and to a reasonable extent with [X].
Mr. V observes that [X] presented as aligned in a greater part with her mother, but engaged well and positively with the father.
Mr. V comments that [X] acknowledges that she will miss being around her parents when she goes to boarding school but was very confident and at ease with being able to exercise telephone and Skype contact with them and that she could spend half the school holidays with her parents.
I find that [X] already has and will continue to have a meaningful relationship with both parents and that this relationship with her parents will continue to foster and grow whether [X] remains in Darwin or boards in [T], and therefore it is not a determinating consideration in my decision.
I now turn to the relevant additional consideration as set out in s.60CC (3).
[X]’s views
Both the mother and father had attended boarding school in their high school years.
[X] became interested in boarding schools in Year 3 after seeing material about boarding schools at her school.
Initially her interest was in schools in Geelong and Perth but in Year 4 her interest was peeked in [F] School after being given a book on [F] School by her school principal.
[X] has conducted her own research and made her own enquiries which resulted in her sitting for a scholarship examination in [T] in May 2010 and being successful in obtaining a half scholarship for ongoing tuition fees at [F] School.
[X] sees her attendance at [F] as being a fulfilment of a long term goal.
Further [X] is of the view that both parents were initially supportive of her exploring the option to attend boarding school.
[X] appreciates that the mother supports her but is frustrated by her fathers opinion that it should be delayed until Year 10.
Certainly the mother has and is in full support and her support continues even though the mother has shelved her plans to relocate to [T].
The mother believes that attending [F] School is what [X] has been working towards for many years.
The mother has signed the paperwork accepting the scholarship. It was not signed by the father.
The mothers attempts to discuss boarding school with the father have been unsuccessful as the father has stated that [X] is not going to boarding school.
The father has not and is not supportive of [X] attending boarding school in 2011.
The father was aware of [X]’s interest in boarding schools as he had seen booklets lying around the house for the past three years. Further the father had on two occasions heard discussions between [X] and the mother regarding boarding schools.
The father however had not engaged with [X] specifically to discuss boarding school, and in particular [F] School until just a matter of weeks ago when the father asked [X] why she wanted to attend. Further the father congratulated [X] on the scholarship test as he was proud of her doing so well. The father submits that these occasions have been the extent of the conversations with [X] about boarding school.
[X]’s views on attending [F] School are very strong.
As captured by Mr. V:
“An all girls school was critical to her ([X]’s) thinking, as she believed she would thrive much better academically and friendship-wise in that environment. She appeared to have explored her options thoroughly and to have gained solid insights into herself. She reported having a friend currently studying at [F], giving her positive insights into the environment.”
Further Mr. V states:
“She ([X]) was articulate, frank and appeared to have put plenty of thought into weighing the realities facing her. She was aware that her mother was not relocating, but was still firmly intent on attending [F] as a boarder. She sees herself as ready emotionally and academically to commence there in Yr 7 from January 2011”.
The leading authority on children’s wishes, (now referred to as views) is the Full Court decision of R & R : Childrens’ Wishes [2000] FamCA 43 where after analysing the earlier decisions of H v W (1995) FLC 92-598 and Doyle & Doyle (1992) FLC 92-286 the Full Court states at [44]:
“It is quite clear that their Honours were not saying that if the child's wishes are valid then they are to be acted on by the Court and indeed this is not the law. What is required is that they be given appropriate and careful consideration and not simply treated as a factor in the determination of the child's best interests without giving them further significance. When validly held reasons are departed from by the trial Judge, it is apparent that good reason should be shown for doing so”
As to the weight to be given to such wishes the Full court state at [54]:
“There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children's best interests.”
[X] presents a persuasive well thought out argument.
Mr. V observes [X] to be a talented girl, and remarkably focussed.
Mr. V captures the complexity of the situation when he comments in his report that:
“I am reminded a little of a situation in rugby match when one assistant referee raises the flag to indicate a kick at goal is successful while the second assistant lowers the flag indicating the opposite. In those situations the referee makes the decision. Without wishing to push the simile too far, each parent has raised their flag on [X]’s boarding school proposal: the mother’s is raised, the father’s lowered. [X] is very confident she has kicked the goal”.
I have no doubt that [X] believes that her wishes will come true.
But I must determine whether it is in her best interest to allow her to attend.
It is Mr. V’s assessment that if her goal is put on hold then it will be highly challenging to her emotional and psychological development.
Mr.. V also observes that if [X] does go to boarding school then she would need to have both parents fully supporting and encouraging her to maintain and strengthen her confidence.
Mr. V is confident however that should that decision be made then the parents will provide the requisite support.
I have taken into account [X]’s views and I have given them considerable weight.
However it is only one of many factors that I must take into account, and cannot be the sole or major determinate for my decision.
The nature of [X]’s relationship with her parents, her sisters, her grandparents and others
As addressed under the primary considerations, [X] has an excellent and strong relationship with both parents, which will continue whether [X] remains in Darwin or boards in [T].
Further it is not in dispute that [X] is close to her maternal grandparents in [T], having spent many holidays on her own with them. This relationship will not be impacted upon if [X] stays in Darwin. As I have no evidence before me as to what the proposed extent of the grandparent’s involvement would be should [X] be permitted to attend boarding school, I cannot comment except to say that I have no doubt that her close bond with her grandparents will continue.
As to her relationship with her two younger sisters, both parents agree that it is a very close relationship and if [X] were to leave, the younger girls would miss her.
Further Mr. C has had the opportunity to observe all three children at the [E] School describing how the girls spend a lot of time together, how the younger ones look up to [X] and how they have a close and loving relationship.
[X] spoke at length to Mr. V about missing her sisters and it was observed by Mr. V:
“Her ([X]’s) frankness came through cogently when reflecting about balancing how much she would miss being around her parents and sisters against the benefits of boarding school”
The two younger children were not interviewed for the family report as to their views as to [X] attending boarding school, and I suspect that had not occurred as both parents had gone to great lengths to shield them emotionally from the impact of separation and the possibility of the mother relocating, (which is no longer being pursued).
Mr. V does not have any real concerns should the children be split, as it will give the younger children a chance to develop in [X]’s absence (from all accounts [X] is a vocal confident young lady who takes a role in the guidance of her younger sisters) and with the love and support of the family the relationship between all three girls will continue to grow.
Whilst I accept and appreciate the experts view, this situation is not that clear cut.
The younger sisters are aged just 8 and 6, and have had the support and company of their older sister [X] (aged nearly 12) during a time when their parents separated under the one roof and in more recent times where they are now living week about with each parent.
The mother in her evidence was quick to point out that [X] is not close in age to her sisters, but I see this more in support of an order whereby the siblings should remain together and not be separated by [X] boarding in [T], as opposed to a reason in support of [X]’s attendance in boarding school.
It was captured by Mr. V in March 2010 at the child inclusive conference that the younger girls had no idea their parents had separated and no idea that their mother was considering relocating with them to [T].
It was [X] who informed Mr. V that no one had spoken to them about it and it was a seemingly deliberate decision so as not to upset them.
Just prior to the Mother moving out of the family home the younger children were informed of the separation and took it well and shortly thereafter the parents entered into a week about arrangement. [Y] (the 8 year old) describes it as “fair”.
It is evident from the family report prepared in May 2010, after week about had been in place for a few weeks, that [X] had actively engaged in ensuring the week about arrangements work for all of the children, although [X] has not been enthusiastic as her sisters in the arrangement.
[X] referred in the report to needing to get ready to spend a week with the other parent, of the lack of discipline shown by that father, and allowing the younger children to swear.
[X] has taken on a nurturing big sister role with her younger siblings, and as observed by Mr. V:
“She ([X]) certainly seemed to hold her own in conversation with her father who in turn displayed great confidence in her, telling me in front of her that she was good at looking after her younger sisters (which she was doing while I interviewed him)”.
The long term parenting arrangements for these children is unclear and is the subject of court proceedings.
The week about arrangement is as per an interim order, and whilst the father would like to see it continued, the mother does not believe it is working and has indicated that orders will be sought on a final basis whereby the children live with her and spend weekend and holiday time with the father.
Certainly week about is enjoyed by the younger children through the hard efforts of both parties to make it work, and through the parents protecting the younger children from the difficulties faced by the adults in the separation.
However it has also worked as [X] has been aware of the situation and has played a large part in ensuring that week about has been a success for her sisters, even though [X] would like to primarily live with her mother and spend time with her father.
Further the mother admitted to Mr. V that she relies heavily on [X]’s for support.
But if the parenting arrangements were to change, and if [X] wasn’t there to be a big sister during the changes for the younger children, then this could have a negative impact on the younger girls.
I do not want to punish [X] for being such a responsible perceptive young lady in looking after her sisters, but in making this decision as to whether [X] should attend boarding school in 2011, it is not only her best interests that must be taken into account, but the best interests of her sisters are also of equal paramount importance.
Further insufficient evidence was put to me by the mother as to the frequency of return visits by [X] to Darwin and whether it was intended that the younger sisters would visit [X].
I therefore find that it would not be in the best interest of any of the children, for the children to be divided with [X] attending boarding school.
Lastly there is one other, albeit, recent relationship which [X] and her sisters have fostered that must be taken into account and that is with the mothers new partner, Mr. T.
At first the mother was intending to relocate, part of the reason being her new relationship. Upon reconsidering her position, Mr. T has now relocated to Darwin and it would appear that the mother and Mr. T are in a committed long term relationship.
[X] describes Mr. T as “really nice” and someone she “liked a lot” and it was observed by Mr. V that:-
“From her ([X]’s) smile and warm tone of voice, it appeared that she had already developed affection for him. She noted how humorous he was, being a very happy person. Her mother having a boyfriend seemed to be a positive development for [X]”.
Whilst only of slight weight I cannot ignore that Mr. T is going to feature in all the children’s lives, and it is another factor to be considered in not allowing [X] to attend boarding school in [T].
Willingness and ability of each parent to facilitate and encourage a close and continuing relationship between [X] and the other parent
Whilst the father could not commit himself in cross examination to supporting [X] should she attend boarding school, I am in doubt whatsoever, and neither is Mr. V, that the parties will support [X] no matter what the outcome, and in doing so will support the relationship which exists between [X] and each other.
Likely effect of any change in circumstances for [X]
I have already addressed in detail the possible impact on the parents, her siblings and other people close to her should [X] attend boarding school in 2011.
I now need to address the impact on [X] should permission be given for her to attend boarding school in [T] in Darwin and the impact on [X] should she be required to remain in Darwin.
Effect on [X] if permitted to attend boarding school in [T] in 2011
[X] is only 11 years old, turning 12 shortly in December and is currently attending Year 6 in [E] School Darwin.
It is proposed that [X] attend as a boarder for Year 7 in [F] School, although some talk was had that she may go to Year 8.
No independent expert evidence was put to me either by the mother or the father as to the suitability of boarding school for such a young child.
The only independent person who had some capacity to comment was Mr. C, the school principal of [E].
Mr. C gave evidence that in his many years of experience in the education system most students went to boarding school in Year 11 and 12, although some attended in Year 9 and 10.
Mr. C had known of only a couple of children that attended in Year 7 but this was where the parents moved around a lot such as in the defence forces and they wanted to provide stability for their children’s education.
Further no independent evidence was provided as to the possible impact on [X] at such a young age attending an all girl school.
The father maintains that [X] is too immature to attend at this age, and that based on past altercations with her classmates and friends there will be difficulties for [X] in attending an all girls school.
The father goes so far as to say that it would be too risky for [X], as she would fall out with her peer group and suffer from unrelenting isolation and bullying.
Whilst the mother does not support this view, it is evident from the family report that she too has concerns as to [X]’s relational development.
The mother spoke to Mr. V about the need for ongoing psychological therapy for [X], because of fears that owing to [X]’s acute “brightness” she might experience “down the line” difficulties with her peers, especially if she is “not running the show”.
[X] does not appear to recognise or address this issue with Mr. V, informing him that an all girl school was critical to her thinking.
Mr. C gave evidence that he has spoken to [X] about what she can expect at boarding at her age and he admitted himself that it was a tough call as to whether [X] is ready for it, and that it may be the best years of her life, but then again it may not.
I cannot take this view lightly. Mr. C was an impressive credible witness, who is child focussed wanting the best for the children attending his school and has had over 34 years in the education system including 21 years in the top private school system in Melbourne.
Mr. V does not address the issue of relationships with peers in a boarding school environment specifically with [X], although Mr. V recommendations are supportive of [X] attending boarding school.
[X] is of the view that she is up to the challenge.
Underlying this is a fall back position as Mr. C has made it known that [X] will be welcomed back with open arms to [E] School if things don’t work out in [F].
I am concerned that [X]’s difficulties with her peers and her level of maturity and the impact on her boarding school experience has not been addressed adequately in the evidence.
When asked in cross examination as to whether [X] has the social skills necessary to attend boarding school in 2011, Mr. C replied:
“Yes. Look, it’s a tough call for me, because I am not an educational psychologist and that. I see lots of kids at the same age, and so I have got a comparison over the years. I mean they are all growing, they are all developing at different rates, they are all developing their social skills at different rates. Sometimes she has, you know, friendship issues with other kids, but other kids also have that. Kids are intolerant towards other kids’ immature behaviour, regardless of whether they are in year 12, or in year 6, or whatever. So, yes, she does. I mean, how much of that is part of maturity and how much of that are other issues? It’s a tough call. I would prefer that a professional person sort of make the call rather than myself.”
And I too would have benefited from a professional person’s opinion in this matter where both parents have expressed concerns as to [X]’s past difficulties in her relationships.
But in the absence of such evidence and taking into account the hesitation demonstrated by Mr. C as to [X]’s maturity, I can only err on the side of caution and I find that there is a risk that the boarding school experience at this young age especially where the school is an all girl school may have a negative impact on [X], and therefore it is not in her best interest to attend in 2011.
Whilst I appreciate the fall back position that [X] can return to [E] should things not work out, nothing has been put to me as to the impact that this would have on [X], nor was it put to [X] herself as to how she would feel if the boarding school dream did not fulfil itself and she was required to return.
The second issue I must consider in respect to impact on [X]’s education if she attended [F].
Much cross-examination was around this issue.
Whilst everyone agrees that [X] is a bright intelligent young lady with strong leadership abilities no evidence was advanced as to why [F] was a better educational facility as compared to [E] to meet [X]’s needs.
Both schools are exceptional.
[F] has age tradition and reputation in its favour.
[E] is a shining star in Darwin’s education system, innovative, growing and continually evolving to keep up with its counterparts in the larger regional areas.
I don’t know what [X]’s passions are, although she was instrumental in ensuring that a drama program was offered at [E].
I don’t know what [X] wants to do career wise. From all accounts she applies herself well to whatever she is doing and has an excellent academic record.
Her father describes her as a diamond having many facets to her abilities.
[X] herself does not provide me with an insight as to her long term dreams. Her fixation is on attending boarding school where she sees herself as being challenged and stretched.
From the evidence provided by Mr. C, [E] has the capacity to also challenge and stretch her, although he acknowledged that [F] would have more to offer.
This is not a situation where the need to send a child to boarding school is necessary as the alternative schooling is inferior or inadequate to meet the needs of the child.
[E] is advancing educationally at an impressive rate, lead by a dynamic and modern school principal who has had the benefit of what the older more established school systems can offer. Plans are for the school to be affiliated with the [omitted] University.
I have no doubt that given [X]’s tender age, with a number of years ahead of her that [E] will continue to provide her with the challenges necessary for [X] to reach her full potential in whatever is her chosen path. I also have no doubt that if there are any areas that require improvement or development within the school that [X] will be the driving force behind it.
I therefore find that there will be no benefit educationally for [X] to attend boarding school in 2011.
Effect on [X] if required to remain at [E] School Darwin in 2011
No one had anything bad to say about [E] School, not even [X].
There were no concerns as to her treatment at school and from the evidence of Mr. C, [X] is seen as an exceptional student who brings a lot to the school.
Mr. V does however raise concern that [X] could well suffer some negative psychological impact if not permitted to go to boarding school in 2011, and this cannot be ignored.
In evidence Mr. V states:
“It would be a major – major blow for her. This is something she has had her heart set on. I think she would need to know when she could go to boarding school if its not now, if it’s not in January or February 2011. She would-she would need to be told “All right. You can go at a particular time”. That would- soften the blow probably wouldn’t be the appropriate language, but it would - it would make her – make it easier for her to cognitively process that information and that decision. To be told, “No, you can’t go” and be put on the never-never, would-could be quite undermining for her self confidence and self esteem.”
The father has in all his evidence indicated that he is not against [X] attending boarding school in the future. His view is that at this stage and this age that it is not in [X]’s best interests to attend. The father would like her to attend in Year 9 or 10, referring to when she turns 14.
I am not going to make orders for [X] to attend at a later stage.
There are too many unknown variables which could make such an order unworkable including the parties financial situation, their personal situation, and [X]’s own views as she gets older.
The impact on [X] of her wishes not being met is not a strong enough factor for me to make a determination in accordance with her wishes.
I do not find, based on her nature of the relationship with her siblings, the impact that separation will have on all the siblings and the unknown effect of an all girl boarding school on an 11 year old who had relationship difficulties, and where her present schooling is more than adequate to meet her needs, that a change of schooling at this point in time is in [X]’s best interests.
Obviously the parents are going to have to convey this decision in an appropriate, sensitive and honest manner and demonstrate a unified front.
This has not occurred in the past. One of the reasons the matter is in this court is that the father through his silence and passiveness in not vocally expressing his views as to boarding school and actively discussing it with his daughter has unfortunately conveyed albeit incorrectly to [X] that he was supportive of her attendance.
Further her being allowed to attend the exams earlier this year to obtain a scholarship and then being congratulated by the father for doing so had added to this illusion.
The father needs to step up and be frank and honest with [X] as to when she can attend boarding school.
The mother needs to accept the court decision and be supportive of that decision and communicate the positive aspects of [X] staying in Darwin.
Whilst I appreciate that the level of communication between the parties is currently low, they need to meet prior to breaking the news to [X], and if thought necessary avail themselves of Mr. V’s professional training in discussing strategies as to how this can be achieved to minimalise the impact on [X].
Practical difficulty and expense of [X] spending time with the parents and whether it will effect personal relations if attending boarding school
Whilst no clear evidence was presented as to the number of return trips envisaged per year to Darwin to enable time with the family and the costs of such return trips, this is not an aspect which would have carried much weight in the outcome of these proceedings.
The capacity of each of the [X]’s parents to provide for her needs including emotional and intellectual needs
I have no concerns as to parties’ capacity to provide for [X]’s needs, no matter what the outcome.
The maturity, sex, lifestyle and background of the [X] and any relevant characteristics
I have addressed above the concerns I have as to the suitability of an all girls boarding school for [X] given the age of [X] and the difficulties she has had in her relationships with her peers.
I find that it would not be in the best interest for [X] to attend boarding school in 2011.
The attitude to [X], and to the responsibilities of parenthood demonstrated by the parents
I find that both parents have a positive attitude to [X] and accept and effectively carry out their responsibilities of parenthood.
I am hopeful that the parents will jointly take the appropriate steps to ensure that [X] is informed as to the courts decision and that the decision is supported by both parents and that this support is demonstrated by the parents in the delivery of what will no doubt be sad news to [X].
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Unfortunately the issue of the boarding school is only one matter which is the subject of court proceedings between the mother and the father.
Property is in dispute as are the long term arrangements for the children.
No matter what order is made on this issue the remaining issues will require determination.
It is submitted by the mother that if [X] is not allowed to attend boarding school in 2011 then further court actions may be brought for [X] to attend at a later date.
As set out in this judgment there are many factors that must be considered before the court can make a determination. Further the father has indicated that he may be agreeable to [X] attending boarding school when [X] is older.
The prospects of further court action on this issue alone are unknown and therefore I cannot give weight to this factor.
Any other fact or circumstance that the court thinks is relevant.
Mr. V recommends that [X] attend boarding school but only if the parties have sufficient financial resources available to them.
Even with the half scholarship the fees per year are high as they include the remaining tuition fees, boarding fees, boarding services, capital levy and uniforms, as well as any costs of extra curricular activities.
At the very least the fees total $16,000 per year, perhaps nearly as high as $21,000 and this does not take into account [X]’s costs of travel for holiday periods.
Further costs of travel will be high and the logistics for travel will be difficult as [T] is more that a two hour drive from Brisbane.
As to who would be responsible for the payment of the fees, whether it was the mother, the father or both was not entirely canvassed, the area greyed by the child support implications.
It is further greyed by the past and current financial arrangements whereby the family business pays for everything including the mothers rent when she moved from the family home.
The business is currently for sale.
The mother at first thought the business could pay the fees, then conceding that she would do without items to make sure that she has the funds available. Further the mother saw no difficulty in payment being made from liquidated assets.
No alternate arrangements for payments or assistance with payments, for example from a third party such as the grandparents or Mr. T were brought to the courts attention.
I find the mothers views as to the capacity of the asset pool, and in particular her capacity to pay from that proportion of the pool is unrealistic.
The first issue is the extent of the pool.
It was argued by the mother that the pool is more than sufficient to continue to cover these costs.
Whilst it is a larger that average pool consisting of an unencumbered family home and investment property and the business, there are also debts such as tax debts, capital gain tax from the sale of another [business] the business loan and overdraft, a car loan, and some credit cards debt.
Further there are two unknown potential debts, the damages claim in the Supreme Court against both parties and potential capital gains tax if the investment property and [business] are sold to enable a division of property.
Both parties have also incurred significant legal costs in the tens of thousands of dollars, with more costs in the future as a result of the ongoing litigation in the substantive children’s issues and property issues.
There is only a moderate amount of superannuation.
Unfortunately the division of the property pool is in dispute and at this stage will require court determination.
But even on the best scenario the parties will only receive sufficient funds for the purchase of a comfortable home, big enough to meet the needs of three children, with some money in reserve.
Which brings me to the second issue, the sale of the family business.
The [business] not only generates an income for both parties but has subsidised the family life style for a number of years including payment of family related bills.
The [business] is listed for sale. Once the sale goes through both parties are technically unemployed.
Whilst both parties indicated that they would seek employment, neither appeared to have concrete plans as to what will be their future employment, or details as to the income they expect to earn.
The uncertainly as to their employment, and the loss of the benefits available due to the business is a concern.
Further the mother is shortly going to facing the harsh realities of having only her income to sustain her, and not a seemingly bottomless pool of money in the business.
I therefore find that financially, with property proceedings pending, and the employment future of both parents as an uncertainty, that sufficient financial resources are not available to sustain [X]’s attendance at boarding school in 2011.
The other factor which I must take into account is the needs of the younger children.
If [X] was permitted to attend boarding school in 2011 from Year 7 then this more than likely would create a tradition and perhaps an expectation of a right of passage by the younger children that they will also attend be allowed to attend the same boarding school from Year 7.
At this point in time this would be an unfair and unrealistic expectation for the younger children and is another, albeit less weighty factor that I must take into account.
Conclusion
There are a number of reasons why I am not permitting [X] to attend boarding school in 2011.
Firstly the timing is all wrong, not just for [X] but for her sisters.
The children have recently, (although the younger children have been sheltered to an extent) been exposed to change as a consequence of the breakdown in their parents’ marriage.
The impact on the younger children was initially kept to a minimum as the parties separated under the one roof.
[X] herself became almost a confidant to her mother, providing support and being actively involved in adult conversation pertaining to the break up, the proposed relocation, and the eventual splitting of the household.
[X] even confided in Mr. C that one of the reasons for her wanting to go to boarding school was to get away from all the fighting between her parents.
When the parties physically separated, [X] has actively taken on a nurturing and caring role for her sisters ensuring that week abouts have run smoothly and that routine and house rules are as consistent as possible in the two households.
But change is not over. Litigation continues, and it would not be in the best interests of any of the children to be separated from each other.
Secondly, in the absence of any evidence as to what is a suitable age for a child to attend boarding school, I must err on the side of caution and find that it is not in the best interests of [X] to attend boarding school at the age of just 12 in Year 7.
Thirdly I have concerns as to [X]’s maturity and ability to cope in an all girl boarding environment. [X] has had relationship issues with her peers.
But at present [X] has the protection of being in a school she has attended all her schooling life, in the city she was born, where she is respected, loved and supported by the school community and where she shines and continues to shine.
The impact on attending a school where that level of support is not there, thousands of miles away from her home, her family and her friends, and where it will take time to create the same level of respect and familiarity is an unknown factor.
I cannot ignore the possibility of the damaging impact on [X] should her fantasy and long held dream of attending boarding school not work out as planned, and she is required to return home.
Fourthly there was nothing before me that supported that [F] will provide a better educational opportunity to [X] in the long term
And lastly, the parties and in particular the mother is not in a financial position whereby she can commit to the ongoing costs of boarding school.
I therefore order that the mothers application for [X] to attend boarding school in 2011 is hereby dismissed.
I certify that the preceding two hundred and thirty five (235) paragraphs are a true copy of the reasons for judgment of Turner FM
Date: 19 November 2010
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