KEITH & O’TOOLE

[2017] FCCA 2938

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEITH & O’TOOLE [2017] FCCA 2938

Catchwords:
FAMILY LAW – Rice & Asplund threshold hearing – previous final parenting orders – father seeking fresh orders in relation to, inter alia, high schooling of child – Rice & Asplund threshold overcome – directions made.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

Rice & Asplund (1979) FLC 90-725
O’Brien & O’Brien [2017] FamCAFC 219
Marsden & Winch [2009] FamCAFC 152
SPS & PLS [2008] FamCAFC 16

Applicant: MR KEITH

Respondent: MS O’TOOLE

File Number: PAC 2526 of 2008

Judgment of: Judge Newbrun

Hearing date: 2 June 2017

Date of Last Submission: 24 November 2017

Delivered at: Parramatta

Delivered on: 29 November 2017

REPRESENTATION

Solicitors for the Applicant: Levitt Robinson Solicitors & Attorneys

Solicitors for the Respondent: Aaron Legal Solicitors

Solicitors for the Independent Children's Lawyer: Legal Aid NSW Penrith

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2526 of 2008

MR KEITH

Applicant

And

MS O’TOOLE

Respondent

REASONS FOR JUDGMENT

Introduction

1. Final parenting orders were made by Donald J on 31 July 2009 in this Court, after a contested hearing, in relation to the subject child, X born (omitted) 2005. Those orders shall hereinafter be referred to as the final parenting orders.

2. At this Interim Hearing the Applicant father sought to establish that the threshold principles in the decision in Rice v Asplund (1979) FLC 90-725 had been overcome such that he should be able to seek fresh parenting orders in respect to, inter alia, the child’s high schooling from 2018, overseas travel, and communication between the child and each parent.

3. The father, in his Initiating Application filed 16 September 2016, seeks that order 11 of the final parenting orders, relating to the child’s schooling, be set aside. He then sought orders, inter alia, that the child attend (omitted) School at (omitted) or, alternatively, (omitted) School at (omitted).

4. In a recent written submission of the father’s counsel, dated 24 November 2017, it is stated, in relation to the schooling issue, as follows:

   There is no controversy that X has been accepted to attend the (omitted) School. (omitted) School has invited X to attend the orientation day on 4 December 2017, and the mother has been invited to join the father with X at the orientation.

   Whilst the father has not formally sought an order that X attend the (omitted) School, in light of what has transpired with the father’s prior attempts to enrol X at different schools, if the court accedes to his application under the rule of Rice & Asplund, his formal position would be an order that X attend that school.”

5. (omitted) School proposal of the father was referred to in the father’s case outline of 31 May 2017 which was presented to the court at the interim hearing.

6. The Respondent mother contended that the father had not overcome relevant Rice and Asplund thresholds and he should not be permitted to re-litigate the schooling issue, or other issues, referred to above.

7. The material relied upon by each party is set out in their respective case outlines.

8. The Court has considered all the evidence before the Court, including the submissions of the parties.

Final parenting orders of 31 July 2009 and aspects of Donald J’s judgment

1. The final parenting orders provided, inter alia, that the parties have equal shared parental responsibility; the child live with the mother; the mother be permitted to relocate the child’s residence to Sydney; the child spend time with the father, from 1 February 2011, for some 5 nights per fortnight during school term times, and for half of each school holiday period.

2. The Court notes, in particular, final parenting orders 10 and 11 stating:

   10) That the child be brought up in the (religion omitted) faith.

   11) That provided the father pay all necessary school fees, the child be enrolled in a (religion omitted) school or kindergarten in the local area of the mother’s residence and, in the absence of payment of such fees by the father, the child be enrolled in another school or kindergarten in the local area of the mother’s residence with the parties to agree as to the school or kindergarten to be attended by the child.

3. Donald J referred to the father’s Application having been, inter alia, the raising of the child in the (religion omitted) faith. The mother had sought parenting orders, inter alia, that the child attend school in the mother’s local area. At the time of trial the mother was aged 39 years and the father 44 years.

4. The child was baptised and confirmed in the (omitted) Church at the direction of the father on (omitted) 2006.

5. Under the meaningful relationship primary consideration, Donald J referred to the father’s appropriate attitudes to the child’s education, however noting that the father had displayed an inappropriate attitude to the mother and in relation to women generally.

6. Donald J referred to the father’s evidence at trial that for him the “big issue” in the proceedings was more time for him with the child. By reason of the age of the child at trial date, no weight was placed upon the views of the child.

7. Donald J concluded that the father had a contemptuous attitude towards the mother and he also concluded that the father would not, in reality, foster a close and loving relationship with the mother. His Honour stated that indeed it was possible that the father’s disdain for the mother would poison the mother/child relationship. In this context, His Honour stated that,

   42 …This is a factor that certainly weighs against equal time being spent by the child with each party. There is a need to ensure that the child spends sufficient time with the mother to offset the negativity picked up by the child in his time with the father. Indeed, it is a weighty factor when considering whether to limit the child’s time with the father.

8. Later, His Honour stated,

   43…It follows that it is of significant concern that if the child was to either live with the father on an equal time basis with the mother or were the child to spend substantial and significant time with the father, his wholly inappropriate attitude towards the mother; his lack of tolerance for others within the community; and his attitude towards women and their role in society would be absorbed by the child. The father does not have the capacity to deal appropriately with the mother; to respect the mother; or to cooperatively parent with her. This is a factor that weighs against the regime of time sought by the father.

9. His Honour referred to the father having sought an order that the child be brought up in the (religion omitted) faith. His Honour noted that in the course of the mother’s oral evidence, she indicated that she was a lapsed (religion omitted). His Honour noted that the mother in her Affidavit had indicated that she does not oppose the child being enrolled in a (religion omitted) school but does have concerns because of her inability to pay school fees. His Honour then stated,

   46…It is appropriate in these circumstances that child be given the opportunity of being raised in the faith of both parents, but particularly as that is what the father desires, and in relation to which the mother has no strong views.

10. His Honour then stated,

    47 It is also the intention of the father for the child to attend school at a location midway between the residences of the mother and the father. This would be of significant assistance to the parties if the care of the child was to be equally shared. As will be discussed later in these Reasons, such equal time with each parent is not in the best interests of the child and will not be ordered. Further, I accept the submission of the mother that it is better for the child to attend a school in the area of his primary residence so that he can maintain relationships with school friends and participate in local activities either through school or otherwise.

11. His Honour noted that the parties lived at locations about 45 minutes apart. The road journey between the homes took between 45 minutes and one hour. His Honour stated,

    48….The child will, pursuant to these orders, be attending school in the area of the mother’s residence. I find that the distance is not such as to weigh against the father being able to have the child with him for periods which would be substantial and significant. Clearly, if the child was to spend equal time with each parent, a midway point school would have some attraction. This is not, however, the order that I am going to make.

12. His Honour noted that the father lived in his four-bedroom home at (omitted) where he resided with his mother. His Honour noted that the mother and child occupied rented premises at (omitted). The mother had rented those premises since 1999. The mother had been and remained the child’s primary carer.

13. His Honour noted that the father’s capacity to provide for the needs of the child was undermined by his demeaning attitude towards the mother and her family, and by his inflexible approach to the parenting of the child.

14. His Honour noted that if the child was to spend equal time with each parent there would be a greater likelihood that applications would be made to the Court on a continuing basis. His Honour noted that the father did not have the capacity to deal appropriately with the mother; to respect the mother; or to cooperatively parent with her.

15. Under the heading “Equal or substantial and significant time with each parent”, His Honour stated, inter alia,

    78…Here, however, cooperation is not present. Denigration and lack of respect by the father is…...the father does have a low level of maturity and insight; there is ongoing high-level conflict; and there is ongoing significant psychological acrimony between the parents…..

    83 I do conclude that it would be in this child’s best interests for the child to spend substantial and significant time with the father.

16. At paragraph 88 of his Honour’s judgment, it was stated,

    88…One of the orders sought by the father is for the child to attend school in the (omitted) area of Sydney and then proceed in later years to one of three named schools whereupon the father would pay the child’s school fees. The basis for the (omitted) schooling was to provide an opportunity for the child to attend school at a point convenient to both parties if there was equal time being spent by the child with each. As I am not making such an order for equal time, it is appropriate for the child to attend school in the area in which the child lives with the mother. In this way, the child will have the opportunity of forming relationships with children in that area and of participating in sporting or other extracurricular activities in that area. I note, in any case, that there was some indication that the father would move closer to the residence of the child. He can do that and then minimise the travel required to both himself and the child. He can then also more conveniently participate in the school and other life of the child if he desires.”

17. At paragraph 89, His Honour stated,

    89. I do accept, however, that the child should be enrolled in a (religion omitted) school. That is the desire of the father. The mother also describes herself as a lapsed (religion omitted) and does not seem to have any objection to this course, other than a concern in relation to payment of school fees. It is appropriate for the father to pay those fees as the child will be placed within that system at his instigation. It is also appropriate that the child be brought up in the (religion omitted) faith, there being no real opposition voiced by the mother in this regard.

18. At paragraph 99, His Honour stated,

    99. Finally, in relation to the Application of the father, I decline to make an order providing the ability to apply on seven days’ notice. These orders are intended to be final orders and an application to change these orders should not be made without sufficient change in circumstance. The father’s belief that an order can be revisited every 12 months or at all just because of a change in the age of the child is simply wrong. These orders are made in contemplation of the child getting older.

19. At paragraph 96, in relation to overseas travel, His Honour stated,

    96. I reject the application of the father that he be entitled to travel abroad with the child during one holiday period each year once the child has reached the age of 6 years. It is appropriate for the mother to be able to consider such a proposal in the light of circumstances then existing. Much would depend upon the destination; the state of the relationship as between the mother and the father (and any fears that the child would be returned); and any other commitments that the child may have. The order sought by the father in this regard would not be in the child’s best interests and, accordingly, neither would an order providing for the issue of a passport other than with the consent of the parties.

Evidence

1. The Court does not propose to set out the entirety of the father’s or mother’s Affidavit evidence, including the Affidavit evidence of third parties that they rely upon.

2. The father asserts that the parties have been unable to agree upon

   
   

   high-schooling arrangements for the child’s commencement of year 7 in 2018.

3. The father states his belief that it is in the child’s best interests that he attend high school which is not within the local area of the mother’s residence.

4. The father refers to the parties agreeing after the final parenting orders were made, that the child attend (omitted)  primary school in (omitted), about 10 to 15 minutes’ drive from the mother’s residence. The father states his belief that this school has provided the child with stability and structure in his junior years.

5. The father refers to the mother’s communication with the father in October 2015 that she was quite agreeable to discuss with the father a high school for the child in her local area.

6. In a communication by the father to the mother in November 2015, he states, inter alia, that he is not required to agree to a school in the mother’s area if he doesn’t think it is the best the parties can do for the child.

7. The father makes numerous references to (omitted) School including an interview that the child had at that College in April 2016. He also makes numerous references to (omitted) School at (omitted), and his efforts to ensure the child was eligible to be enrolled in 2018 at that school.

8. The father refers to his being an old boy of (omitted) School.

9. The father refers to the mother not being willing to engage with him in relation to the child’s high schooling arrangements outside the scope of order 11 of the final parenting orders.

10. The father states that as to financial matters, he is certain that he is able to meet the cost of any of the orders he proposes, including in relation to the child attending the (omitted) School or the (omitted) School, without requiring any financial input from the mother.

11. The father refers to the (omitted) School situated about 10 minutes’ drive from the mother’s residence.

12. The father states that the primary reason why he wishes for the child to attend a high school outside of the mother’s local area is because of his view that there is a lack of schools in that area that offer a very high quality of combined academic, sporting and social education.

13. The father refers to the child being a very intelligent and academically focused child. The father refers to his energy investment into developing and supporting the child’s educational interests.

14. The father refers to his care of the child whilst the child spends time with him.

15. The father refers to a number of the child’s friends from his primary school will be attending the (omitted) School and many of the girls will attend the (omitted) School. (It was common ground at the interim hearing that the child’s primary school is a feeder school to the (omitted) School).

16. The father states that regardless of what high schooling arrangements eventuate, he is committed to ensuring the child maintains his connections with his existing social networks.

17. The father confirms that the mother lives at (omitted), and that he usually lives at (omitted). He refers to his business being housed in a rented factory in (omitted). The father states that notwithstanding that he did not move closer to the mother’s residence, he wholeheartedly committed himself to his time with the child and to participation in the child’s life inside and outside of school.

18. The father asserts that it is about one hour drive from the mother’s residence and the child’s school in (omitted) to the father’s home in (omitted).

19. The father asserts the child is eager to attend a school like (omitted)’s or (omitted).

20. The father refers to his desire to take the child overseas for travel opportunities.

21. In August 2014, the father refers to the mother stating to the father that she was not agreeable to the child going overseas until he was much older.

22. The Court also refers to the ICL’s helpful summary of the father’s affidavit evidence set out in the ICL’s Case Outline, under the heading “7. Issue One: Significant Change”.

23. The mother refers to her employment as a (occupation omitted).

24. The mother, in her Affidavit filed 21 October 2016, refers to the child’s challenging behaviour at times, including behavioural issues at school in term one 2016.

25. The mother refers to the child beginning kindergarten at (omitted)’s primary school in 2011, “after 18 months of unproductive negotiation (since July 2009) with (the father) over choice of primary schools.”

26. The mother confirms the parties’ inability to agree upon high school arrangements for the child commencing year 7 in 2018. The mother refers to the father’s proposals for high schools for the child being of considerable distance and drive from her residence, including (omitted) School and (omitted) School.

27. The mother refers to her continuing fear that the father poses a flight risk if granted orders to travel overseas with the child.

28. The mother refers to her opposition to the proposed parenting orders of the father that the child attend (omitted) School as a weekly boarder, which would deny her the current opportunity to continue her close and supportive parenting relationship with the child, and take part and watch his growth and development to adulthood.

29. The mother refers to the parties using a communication book to communicate between each other regarding the child’s behaviour and needs.

30. The mother asserts that the father has consistently over the past two years been overdue in paying the child’s term school fees.

31. The mother refers to high schooling options available in her area. She refers for example to (omitted) and (omitted) high schools, (omitted) School and (omitted) School, (omitted) School and (omitted) selective high schools, (omitted) School.

32. The mother refers to the child’s activities in her local area. The mother confirms that there are a large number of the child’s school friends who will be attending the local (omitted) School.

33. The mother asserts that the fact that the child has established close friendships with his local peers, participates in a variety of social, sporting and musical activities locally, and is receiving behavioural and emotional support with a psychologist suggest that the child’s best interests are fulfilled by attending a local high school.

34. The mother refers to her payment for the child to attend weekly (hobbies omitted), half of the term fees for (hobby omitted), and also for the child’s graded (hobby omitted) exams.

35. The mother expresses her concern that the child, at 11 years old, cannot fully comprehend the impact the father’s proposed high school commute would have on his energy levels, ability to concentrate at school, attend to homework, pursue his out-of-school social, sporting and musical activities, and maintain an appropriate sleep routine for his age.

1. The mother confirms that the parties have different understandings of the child as a developing child of 11 years old and what is in his best interests. She again refers to the child’s behavioural issues which need addressing with the assistance of his psychologist and a united effort from both parents.

2. The maternal grandmother’s Affidavit (the maternal grandmother states she is a retired (occupation omitted)) refers to the child’s behavioural issues experienced from an early age. She asserts her greatest concern is that the child is being overwhelmed by the sheer amount of academic rigour and expectations placed upon him by the father. She refers to her discussions with the child’s school principal regarding the child’s behaviour. She asserts that the consistent topics of concern were the child’s diminished ability to accept the consequences of his actions and his tendency to blame others for his behaviour. She alleges that during 2016 she had a discussion with the child about following rules, and the child stated, “I don’t think I could get away with inappropriate behaviour with you 99% of the time, with mum 90% of the time, and with dad 60% of the time.”

3. The maternal grandmother asserts that the child has a keen mind, can be charming and polite, but appears to be developing at a slower rate emotionally, and she believes that being able to exert self-control over his emotions is of paramount importance in his “all over” socio-emotional development and self-awareness of the consequences of his actions.

4. The maternal grandmother refers to the child’s loving and warm relationship with her daughter, albeit referring to the child on occasions acting aggressively towards her.

5. The mother’s last filed Affidavit filed on 1 June 2017, states that since the last proceedings before the Court in July 2009, there has been no positive change in the relationship between the parents. The mother asserts that the father has proceeded to encourage the child to believe that he will attend schools that she does not consent to the child being enrolled in.

6. The mother refers to her residence at (omitted) for the last 17 years.

7. The mother proposes that if the father is willing to pay all fees and associated costs that the child attend at (omitted) School, a (religion omitted) high school in her local area (the estimated distance of this college from the mother’s residence is 6.5 km and about an eight minute drive), or in the alternative, the mother proposes that the child attend at (omitted) high school (the mother estimates the distance to and from the school from her residence is 10 km and about 10 minutes’ drive), which is a public school within her local catchment area. She asserts that the father refuses to pay for the child to be enrolled in either such school. The mother states that she does not have the funds to pay for private (religion omitted) school fees herself.

8. The mother states that (omitted) High School is also within her local education catchment area however this is a further five minutes’ travel away.

9. The mother states that without her knowledge or consent, the father has applied to the (omitted) School to enrol the child. She states that the (omitted) school is not a (religion omitted) school. It is an (omitted) school. The mother states that she does not consent to the child attending the school, because the school is about 50 minutes’ drive away, each way, which does not take into account the heavy traffic with the (omitted) peak traffic flow and tolls. She asserts the distance is about 31.4 to 39.6km by (omitted) from her residence to the (omitted) School. This would require her travelling about four hours each school day.

10. The mother states that she is currently employed on a casual basis as a (occupation omitted) as part of a traineeship to become a (occupation omitted). She currently is required to attend (omitted) TAFE from 9AM to 4PM three days per week.

11. The mother refers to public transport to the (omitted) School involving train travel from (omitted) to (omitted) and a change to bus travel. The time frame for this travel would be between one hour and 40 minutes to 2 hours and 11 minutes each way depending on timetable and incident-free travel.

12. The mother asserts that the child has never expressed a wish to her that he wants to attend the (omitted) School.

13. The mother states that the child attended the (omitted) School interview without her knowledge and consent in May 2017.

14. The Court also refers to the ICL’s helpful summary of the mother’s affidavit evidence set out in the ICL’s Case Outline, under the heading “7. Issue One: Significant Change”.

Exhibits

1. The Court has perused all tendered Exhibits. It does not propose to set out the contents of these documents in their entirety.

The Child Inclusive Conference Memorandum of 20 January 2017

1. The father confirmed to the family consultant that he sought that the child be enrolled at (omitted) School as a boarder for high school. He would also be agreeable to the child being enrolled at (omitted) School. The mother sought that the child attend high school at the (omitted) School at (omitted).

2. The family consultant stated that the father

   …presented as a high assertive person who appeared somewhat intense in his communication style and significantly preoccupied with the (child’s) attendance at what he referred to as a Congregational school.

3. The father expressed to the family consultant his desire for the child to have the strong pastoral care, family environment and competitive environment that the schools he is proposing would provide.

4. The father reported that the child presents as somewhat arrogant at times. He commented that when the child was corrected he has an adverse reaction.

5. The father told the consultant that he and the mother’s communication is poor.

6. The family consultant stated that the mother presented as somewhat hostile towards the father, and exasperated by what she intimated was years of having to deal with the father’s intrusive communication style. The mother stated that the child would likely claim to want to attend (omitted)’s and then (omitted) School because he had been allegedly significantly influenced by the father to view only so-called elite educational institutions worthy of his attendance and any other institutions as unable to teach anything of value.

7. The mother told the family consultant that, due to the long-standing parental conflict, and her desire to ensure that the child had a positive relationship with both parents, she had not strongly challenged the child’s views on this because it was a fine line she was walking in doing so, without appearing to undermine the other parent.

8. The mother told the family consultant that whilst the child had some lovely qualities and was fundamentally a kind boy, he had significant behaviour problems with regard to rudeness towards teachers. She described him as holding an arrogant attitude, particularly towards female teachers, viewing the teachers as lacking the ability to teach him anything.

9. The mother told the consultant that three of the child’s closest friends from primary school would be attending (omitted) School.

10. The family consultant interviewed the child, aged 11 years, eight months (at that time).

11. The child referred to his behaviour at school. He admitted that his reactions to school discipline are often “over the top”. His reactions are directed to teachers.

12. The child spoke positively about both parents, stating they are nice to him and care about him.

13. The child stated that the mother was stricter than the father.

14. The child stated that his preference for high school was to attend (omitted) School, or if this was not possible, (omitted) School. He claimed that he preferred the schools because he had seen how they teach and what they cover. He had seen the community and how their old boys help the students out. As to boarding at (omitted) School, he stated that he thinks it is worth it for a good education. The child stated that he would be willing to undertake the travel, even if it was over an hour and a half duration, to get to either of these schools from his parent’s homes.

15. The child told the family consultant that if the Court ordered him to attend a school near the mother’s home, his preference would be (omitted) School. He stated to the family consultant that if the Court ordered him to attend this College, he would feel disappointed but would adjust to this.

Exhibit B

1. Exhibit B documents include a letter from the mother to (omitted) School, expressing her lack of consent to the child being enrolled at that school, giving reasons, including the asserted behavioural issues of the child.

Exhibit D

1. Exhibit D documents include an email from the father to the child’s psychologist on 17 February 2016, in which the father states, inter alia, “(the mother’s) approach is “she’ll be right mate”, or “Laissez-faire”, and “you are not at school to compete”, and mine is that so long as (the child) is not being pushed or feeling pressured,

   “we are the natural owners of 100% in every exam we sit, and it is only our laziness or some evil plot by lefty, commi, socialist scum that stops us getting 100%.” The father also states, “And on this topic, please establish that (omitted) are not doing the right thing only for fear of displeasing Jesus.”

2. A further email from the father to the child’s psychologist on 26 November 2014 states, inter alia,

   “Both (the mother) and I have been putting pressure (regarding school location). (The mother) has been discussing issue in front of him with her mum and complaining about the driving that (omitted) would represent (35 minutes). My approach is being “you can choose whatever school, you want.” But “if you choose a school I don’t agree with I am moving to (country omitted) and I will see you once a year.”

3. In a communication from the father of 14 November 2014, he states, inter alia

   “(the child) has known for many years that I would like him to attend (omitted)’s in (omitted) or (omitted) School in (omitted). I have been taking him to the school since before he could walk and discussing their qualities.”

Exhibit E

1. A confidential case note regarding the child by his school counsellor, in relation to a meeting with the father on 29 January 2015, states, inter alia, that the father discussed some of the tension between himself and the mother, and how the child was getting caught in the middle. The father had stated that a large part of the tension was about high school, and where the child would be going. The father stated that he would take the issue to Court, but that ultimately the decision would lie with the child.

Rice and Asplund Legal Principles

1. The Court refers to the recent decision of the Full Court of the Family Court of Australia in O’Brien & O’Brien [2017] FamCAFC 219. At paragraphs 21-22, Ainslie-Wallace J stated:

   “21. It is perhaps important to set out here the relevant principles which are conveniently set out by the Full Court in Marsden v Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1 (“Marsden”). In that case, after discussion of the earlier authorities and, in particular, adopting statements made by Warnick J in SPS and PLS [2008] FamCAFC 16; (2008) FLC 93-363 (“SPS”) the Full Court said:

   48. In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.

   49. However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the “rule” in Rice and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.

   50. Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:

   (1)           The past circumstances, including the reasons for the decision and the evidence upon which it was based.

   (2)           Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.

   (3)           If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.

   (Footnote omitted)

   22. His Honour’s expression of the “test” to be applied as set out in his reasons at [52] does not align with the Full Court authorities and restricts the nature and extent of the enquiry necessary to the determination. To merely look to whether there has been a “change in circumstance” or the coming to light of some previously undisclosed piece of information is not consistent with the principles as explained in Marsden. As was emphasised by both Warnick J in SPS and the Full Court in Marsden, the rule in Rice and Asplund is merely a manifestation of the best interests principle...”

Rice and Asplund discussion and determination

1. Order 11 of Donald J’s final parenting orders, relating to schooling, does not provide a mechanism for the parties selection of a (religion omitted) school in the local area of the mother’s residence for the child to be enrolled in. In this context, it is not without relevance that, according to the mother, the child only began kindergarten at (omitted)’s primary school in 2011, “after 18 months of unproductive negotiation (since 2009) with the (father) over choice of primary schools”.

2. Further, Order 11 does not provide a mechanism for resolution of any failure of the parties to agree to a school in the mother’s local area in the event that the father does not pay all necessary school fees for a (religion omitted) school in that area. The parties are in disagreement in this particular context.

3. Further, an arguable overall problem with Order 11 is the ability of the father to effectively force a change to the child’s (religion omitted) school, initially selected and agreed to by the parties, at any time, by declining to pay all necessary school fees, with the disruption to the child’s schooling which necessarily would result. It is not without relevance in this context that the mother’s Further Amended Response filed 2 June 2017 seeks a default order that the child attend (omitted) High School in the event that the father fails to pay the school fees for the mother’s initial proposal that the child attend the (omitted) School.

4. The child has recently expressed some views in relation to high schooling.

5. The Court refers again to Donald J’s reasoning (see in particular paragraphs 47, 48, and 88 of the judgment) underlying the making of Order 11 of the final parenting orders, relating to schooling.

6. It is noted that Donald J placed no weight at all upon the views of the child at the trial in 2009, His Honour expressly having stated that the Court’s orders were made in contemplation of the child getting older. Nevertheless this Court is of the view that the child’s views recently expressed should be considered in the present context of the Rice and Asplund issue.

7. The child made certain statements to the Child Inclusive Conference family consultant in January 2017, when he was aged some 11 years 8 months.

8. Whilst the child did express a view to, inter alia, the family consultant, that his preference for high school was to attend (omitted) School, or alternatively, (omitted) School, he expressed no view about attending the (omitted) School. His views, if any, about that school, are unknown.

9. It is noted that the child stated to the Child Inclusive Conference family consultant his willingness to undertake travel in excess of 1.5 hours to get to either of (omitted) School or (omitted) School, from his parent’s homes.

10. And further, the child told the family consultant that if the Court ordered him to attend a school near the mother’s home, his preference would be (omitted) School, and if the Court ordered him to attend this College, he would feel disappointed but would adjust to this.

11. Again, the father states that the primary reason why he wishes for the child to attend a high school outside of the mother’s local area is because of his view that there is a lack of schools in that area that offer a very high quality of combined academic, sporting and social education.

12. In this context, the Court refers to the mother’s positive evidence as to the educational offerings of schools in her local area.

13. The father’s material does not address the (omitted) school; his material is directed to (omitted) School and (omitted) School.

14. The parties both adduce evidence relating to the child’s participation in social, sporting and extra-curricular activities in their respective areas of residence.

15. In particular, by reason of the child’s views, and the shortcomings of order 11, as referred above, the Court is of the view that the father has established a change of circumstances of sufficient magnitude to justify the high schooling issue to be the subject of fresh proceedings; it will be in the best interests of the child for such limited high schooling proceedings to occur and be determined by the Court.

16. The Court is of the view that there is a likelihood of order 11 of the final parenting orders being varied in a significant way as a result of fresh proceedings in relation to the high schooling issue. Having stated this view, the court is obviously not pre-judging what would appear to presently be the competing high school proposals of the parties; the mother, to date, wishes for the child to attend the (omitted) School, close to her residence, and the father proposes to formally seek an order that the child attend the (omitted) School.

17. The Court is of the view that a limited hearing in relation to the high schooling issue, held prior to the child’s commencement of high school in early 2018, will likely not result in potential detriment to the child caused by such proceedings. The Court has not overlooked the child’s past behavioural issues in this context.

18. The father seeks to vary order 5(c)(iii) of the final parenting orders in relation to when school holiday time begins and ends, but there is no persuasive evidence in his material to support this application. There is no persuasive evidence before the Court to justify changing what appears to be a reasonable and practicable order which effectively defines when school holidays start and finish.

19. The father seeks to vary order 7 of the final parenting orders, and seeks a further order (see proposed orders 10, 11, 12, 13, in his Initiating Application) in relation to overseas travel with the child.

20. The father had made an application to Donald J to travel abroad with the child during one holiday period in each year once the child had reached the age of 6 years. Paragraph 96 of his Honour’s judgment dealt with these issues.

21. The Court refers to the father’s evidence in relation to international travel, and again notes the helpful summary of his evidence in this respect in the ICL’s case outline; see in particular paragraphs 129 to 141 of the father’s affidavit.

1. The Court refers to paragraphs 70 to 74 of the mother’s affidavit filed 21 October 2016 relating to her concerns. The mother states that she is open to negotiating with the father for the child being able to travel internationally once she understands certain stated issues, namely that the father has secured a long-term residence in Australia, does not have substantial cash on hand to represent a flight risk, the issues regarding the child’s behaviour at school, and the child’s formal surname and the father’s documents are addressed.

2. In the view of the Court, on the material presently before the court, there is not a real prospect of orders being varied in a significant way as a result of any new hearing in relation to the international travel issue. The father’s fresh proposals (see proposed orders 10, 11, 12, 13, in his Initiating Application) would appear to be in substance not significantly different to his proposals before Donald J, and His Honour dealt with those proposals comprehensively, without preventing the father from prospectively bringing a discrete application to travel to a particular overseas destination.

3. Accordingly, the father, consistent with the reasoning of Donald J in paragraph 96 of His Honour’s judgement, separately to these proceedings, could approach the Court in relation to any proposed discrete overseas trip by the child. Such future proceedings, in relation to a proposed discrete overseas trip, would be fairly limited in its nature and likely not protracted. Importantly in this context, the Court would anticipate that initially the father would seek to negotiate with the mother in relation to such a trip, noting that the mother is open to negotiation; should such negotiations be successful then the need for litigation would then be avoided.

4. The father proposes an order (proposed order 15 in his Initiating Application) that when the child is in the care of either parent, the child is permitted to communicate with the other parent at any time he chooses and may so communicate via telephone, text message, email, Skype or any other video communication tool.

5. Donald J made no orders in relation to this communication issue.

6. The father’s evidence in support of such a proposed order is slight; he states, inter alia, that he seeks such an order “to improve and clarify the practical day to day operation of the existing orders”. The mother, in response, states that she has found that the final parenting orders are very reasonable and fair in relation to, inter alia, maintaining the child’s family relationships.

7. The father submits that the child is now at an age and level of maturity where such a communication order would be appropriate.

8. In the view of the Court, there is a real prospect of such a communication order being made if fresh proceedings in this context were permitted, in particular noting the present age of the child. It is a narrow issue and there is every prospect that the parties will be able to agree on a sensible order for communication. It will be in the best interests of the child to permit fresh proceedings on this narrow issue, noting the “live with” and “time with” orders in the final parenting orders.

9. Consistent with the Court’s above discussion relating to order 11 of the final parenting orders, and the father’s proposed order 15 (relating to communication), the Court will now proceed to make orders and directions in relation to a short limited hearing in respect to the high schooling and communication issues.

I certify that the preceding one hundred and twenty eight (128) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date:  29 November 2017