Leyton and Jacks
[2018] FCCA 163
•25 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LEYTON & JACKS | [2018] FCCA 163 |
| Catchwords: FAMILY LAW – Children aged 13 & 9 – final orders made in respect of parenting arrangements in 2011 – orders envisaged parties engaging in mediation to resolve future schooling arrangements for children – parties conferred with equal shared parental responsibility for children – children live with each parent on a substantial and significant time basis – parties unable to agree on which secondary school older child should attend following unsuccessful process of mediation – parties have long standing communication issues – father wishes to enrol children at fee paying private school with religious affiliations – mother objects to children attending religious school – mother advocates government funded school – both schools are equally accessible to the parties – parties disagree as to which school is likely to provide a superior level of education – financial issues – child support implications – best interest. |
| Legislation: Family Law Act 1975, ss.11E(1), 11F, 60B, 60CA, 60CC, 64B, 65DAC Child Support (Assessment) Act 1989, ss.4(2), 117(2)(b)(ii) |
| Cases cited: Ubilla & Knightley [2010] FMCAfam 382 B v B: Family Law Reform Act 1995 (1997) FLC 92-755 Russell & Russell & Anor [2009] FamCA 28 Croft & Croft [2017] FCCA 588 H v W (1995) FLC 92-598 R & R: Children’s Wishes (1999) 25 Fam LR 712 |
| Applicant: | MR LEYTON |
| Respondent: | MS JACKS |
| File Number: | ADC 220 of 2011 |
| Judgment of: | Judge Brown |
| Hearing date: | 18 January 2018 |
| Date of Last Submission: | 18 January 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 25 January 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Boehm |
| Solicitors for the Applicant: | Michael W Speck & Co |
| Counsel for the Respondent: | Mr Childs |
| Solicitors for the Respondent: | Women’s Legal Service |
ORDERS
In the event that the father provides the written undertaking and indemnity provided in order (2) hereof he is authorised, by this order to enrol the child [X] born (omitted) 2004 “[X]” or “the child” at (omitted) College, “(omitted) College” to enable her to commence her secondary education at the school, from the start of the 2018 year and thereafter until she completes such secondary education unless the parties agree that the child should attend another school.
Prior to [X] commencing her secondary education as specified in order (1) hereof, the father is directed to provide a written undertaking both to the mother and to be filed in the court that he and/or his parents will pay all fees and expenses relating to [X]’s attendance at (omitted) College, including any incidental fees arising which is to include the cost relating to the provision of any necessary school uniforms, equipment, including musical instruments and sporting equipment for her, together with the costs of all school camps to be attended by her and all other activities to be undertaken by the child and forever indemnify the mother in respect of such fees and expenses.
The mother provide her school card and any other relevant documentation to the Principal of (omitted) College or his nominee and or to the father to ensure [X] is entitled to receive any discount on the fees arising from the child’s attendance at (omitted) College but the mother is not directed by this order or any other of these orders to make any other financial provision for the child to attend the school.
The school card and other documentation referred to in order (3) hereof is to be returned to the mother once any such discount has been obtained.
In the event the father is not prepared to provide the undertaking in order (2) hereof the child [X] is to attend (omitted) High School for her secondary education.
The child [Y] born (omitted) 2008 is to attend (omitted) Primary School for the remainder of his primary schooling unless the parties agree otherwise.
The application filed 28 July 2017 and the response filed 1 September 2017 are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Leyton & Jacks is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 220 of 2011
| MR LEYTON |
Applicant
And
| MS JACKS |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to these proceedings are Mr Leyton “the father” and Ms Jacks “the mother”. They are the parents of [X] born (omitted) 2004 and [Y] born (omitted) 2008.
[X] is currently 13 years of age. She must commence secondary school at the start of the 2018 academic year. Despite the parties’ best efforts, they are unable to agree which high school she should attend. This decision, in due course, will have ramifications for which school [Y] should attend when he is due to start secondary school.
The father’s preference is for (omitted) College “(omitted) College”, a religiously affiliated and fee paying school in (omitted). The mother’s preference is for (omitted) High School “(omitted) High School”, which is a government funded school.
The schools are proximate to one another, in (omitted) and readily accessible from each of the parties’ respective homes – (omitted) in the father’s case and (omitted), in the mothers. Accordingly, this is not a case concerned with competing claims of personal convenience or other insoluble logistical issues.
Rather, it is a case centred on issues related to the personal values and aspirations of the parties themselves. For obvious reasons, these values have been shaped by the past experiences and background of each of the parties. They separated many years ago now, in difficult and emotionally trying circumstances.
The parties now lead quite separate and distinct lives, apart from their shared responsibility to parent [X] and [Y]. As a consequence of their separation and their different backgrounds, it is inevitable that their views about all manner of things have become quite different, if they were not already incongruent, when they began their relationship together.
In these circumstances, it is hardly surprising that they have experienced grave problems in resolving their differences about the children’s education. It is not my role to rank the parties’ personal values, against one another, and determine whether one set is superior to the other.
In addition, as a consequence of my own humanity, I have my own subjective values which are the product of my own background and views, including the education which I received as a child. Necessarily, I will have my own personally influenced and idiosyncratic views about what constitutes the best form of education for children. I must be careful not to allow my subjective views to intrude into this case.
It is the father’s position that [X] will receive a much better and more comprehensive education at (omitted) College, where she will be pushed harder by the teachers and be subjected to more rigorous academic discipline in smaller classrooms.
As such, he believes [X] will likely receive higher grades at (omitted) College, which will open up more possibilities for her as she matures in terms of tertiary education opportunities and, in due course when she is an adult, vocational possibilities.
Mr Leyton believes that these opportunities have the potential to be life changing for [X]. As such, he categorises the decision to be made at this stage as being one of fundamental importance for [X] at this stage of her development. He takes a long term view of what is likely to be best for [X].
The mother is concerned at the prospect of [X] being exposed to a religious education when neither she nor [X] has any religious orientation or interest. She is also anxious that she may be saddled with a significant financial obligation to pay [X]’s school fees when, from her perspective, (omitted) High School is likely to provide a more than adequate level of education for [X], given her background. The mother is not in a strong financial position and is aggrieved that from her perspective, she does not receive any financial assistance from the children’s father.
Most significantly, it is her position that [X] simply does not want to attend (omitted) College because the vast majority of her cohorts and friends with whom she has attended primary school in (omitted), are going onto the High School for their secondary education. She asserts that the father is advocating (omitted) College only for its snob value, which satisfies his own vanity rather than answering either [X]’s best interests or preferences. To a certain extent, Ms Jacks takes a shorter term view of the issue based on [X]’s present circumstances and her views about the two schools concerned.
Both parties can muster powerful arguments as to why his or her choice of school should be ratified by the court. In my view, these are complex and controversial issues about which many Australians, including the parents of secondary school aged children, frequently and fundamentally disagree. Controversies about the merits and shortcomings of government as opposed to private schools have been the staple of barbeque conversations in Australian backyards for decades.
In a case, which I was called upon to determine some years ago, I said as follows:
“These are complex issues of both philosophy and politics. There has been controversy, within the Australian community, for many decades about the merits of non-government and government schools respectively and the obligations of governments to fund schools generally, including ones associated with religious denominations.
There have also been, in recent years, rigorous debates about what should or should not be contained in a general school curriculum to assure that Australian children have a rounded and appropriate education. Arguments have particularly arisen about what children should be taught about history, particularly Australian history.
In this context, it may be said that an understanding of the origins of religious belief, in a generic sense, has relevance to many aspects of history, politics and literature. To be a well rounded student, does one need to have at least a cursory understanding of the comparative tenets of Buddhism, Hinduism, Islamic and Christianity? Or, given the essentially Judaeo-Christian origins of many institutions in Australia, should that orientation be more focussed on the tenets of Christianity?
Underpinning these controversies is a deeper and more difficult one. When does the conferral of knowledge, about a particular religion or religious dogma, to a young mind, become an active form of proselytism? Is the line crossed with the singing of hymns; attendance at organised religious services; or the attendance at classes of specific religious instruction; or perhaps merely at the attendance at a religious school itself, no matter how otherwise “mainstream” is its general curriculum?
These are complex and controversial issues and I have no desire to enter into them. Australia is a multi-cultural society. It is unlawful to discriminate against a person on the basis of his or her religious belief or racial origins.[1] This multiculturalism is based on Australia’s history of being a country of migrants, as well as its aspirations to be a tolerant and inclusive society. As such, it is the home of a diverse range of citizens, who hold many varied beliefs and adhere to many different religions.
Indeed, pursuant to section 116 of the Constitution of Australia, the Commonwealth is prohibited from making any law for the establishment of any religion in Australia or in respect of the imposition of any religious observance on its inhabitants. The Constitution specifically prevents the Commonwealth from prohibiting the free exercise of any religion or religious belief within Australia. This section formalises the separation of church from state.
As such, it is highly regrettably that I must make a decision between the parties’ competing proposals, a decision which necessarily must involve some religious connotation, given the way the case has been presented and the differing views each party has in respect of the question of organised religion.
[1] See Racial Discrimination Act 1975 (Cth)
…
In this context, particularly where the issue is of such apparent importance to both parents that they are each willing to expend considerable resources to it, both financial and emotional, I am fearful that my decision may be unwittingly influenced by my own subjective views about all manner of things, no matter how hard I try to grapple with my inherent biases, which flow from my own education, experience and background. It is not an easy issue to determine with the legal matrix provided by the Family Law Act.”[2]
[2] See Ubilla & Knightley [2010] FMCAfam 382 at [27]-[33] & [35]
These comments have some relevance to the current matter. The father does not hold strong religious views and is neither a practising (religion omitted) nor a practising (religion omitted) in general terms, although I understand his current partner does regularly attend church and his parents each have strong associations with the (omitted) Church.
In these circumstances, he has no objection to [X] being exposed to some level of religious education as he was when he attended secondary school. It is his view that the religious education which [X] will receive at (omitted) College, is generic in nature and will add to her having a well-rounded education which will not be harmful to her overall intellectual development and is likely to assist her to establish some personal form of moral compass as she matures.
From the mother’s perspective – although she concedes that she does not know a great deal about what goes on at (omitted) College – no matter what is the level of religious education and observation at the school, it will still amount to “religion being rammed down [X]’s throat”, which both she and [X] fervently object to on personal grounds.
I accept that these issues are of fundamental importance to each of the parties concerned. Mr Leyton in particular has committed significant financial resources to these proceedings. He has filed four affidavits, in support of his position since he commenced these proceedings in July of 2017.
The mother is not a wealthy person. It is also her perception that Mr Leyton is a pushy person who does not easily brook opposition to his views. In addition, she feels it is incumbent upon her to advocate for [X], because her father is incapable of acknowledging her ([X]’s) views or entitlement to self-determination. The mother has filed two affidavits in these proceedings.
Regardless of where the difficulty lies, the parties are incapable of resolving this issue and are critical of the others intransigence in respect of it and inability to reach a compromise. However, from each party’s perspective, any compromise on this bipartite issue can only be perceived as some form of surrender to the other. Neither party struck me as being of the surrendering kind.
This is not to say that the parties have not attempted to reach an agreed position in respect of the vexed education issue. They have engaged in an extensive process of mediation with Ms M, an experienced mediator and child psychologist. More recently, they have attended a child inclusive child dispute resolution conference with a family consultant, Ms R, who practises at the court.
Neither of these interventions has been successful. The issue appears to be one which mathematicians would characterise as a zero sum game. There is no mutually acceptable third option available. In order for the case to be mutually resolved, one party will have to abandon his or her preferred option. Neither is prepared to do so. As such, each party shares at least one character trait – a level of stubbornness.
As I say, both parties can muster powerful arguments as to why their respective positions are to be preferred. Necessarily, there is no right or wrong answer to the question posed in the case. I must exercise a discretion vested in me by the applicable legislation, which is to be informed by my view of how [X]’s interests will be best served in future, both in its short and longer term aspects in terms of where she should go to school.
Different minds are likely to be able to reach different views about the issue involved and it is difficult to say one view has greater validity than the other. However, in the absence of consensus, it is necessary for me to make a decision so all concerned can move on and [X], in particular, can be told which school she will be attending henceforth. Both she and the parties need to know. Regrettably, they needed to know twelve to eighteen months ago.
There must be a formal mechanism to resolve the dispute between the parties who are citizens as well as parents. One of the essential ingredients of a well ordered society is that it provides its citizens mechanisms for the resolution of disputes between them, including disputes relating to such deeply personal and sensitive issues as the schooling of the child. The court is that mechanism.
However, I am also aware that in resolving the dispute, it is inevitable that I will create a perception that one parent has won the issue and the other has lost it. Such perceptions are not helpful for anyone, including any child concerned given the obvious and longstanding difficulties in the parties’ parenting relationship. I have no desire to perpetuate the conflict arising between them.
I am concerned that the issue of [X]’s schooling has assumed a totemic significance for each of them which is out of proportion to the overall moment of the issue itself. At this stage, much of [X]’s educational potential remains a blank slate both to me and to the parties concerned. Accordingly, without the benefit of hindsight, I simply do not know which is likely to be the more suitable school for her given my ignorance of what talents she will demonstrate as she grows to maturity.
What is of fundamental importance for [X] (and indeed [Y]) is that they are loved and well cared for children in both their parents’ homes. [X] is a healthy and generally happy child. She presented to Family Consultant Ms R as a confident, articulate teenager albeit one who was stressed at having to move between her parents respective households, which had “different rules and parenting styles, in an environment where the parents are in conflict”.[3]
[3] See child inclusive conference memorandum to court dated 5 December 2017
I have no desire to create a winner or a loser and so cause some further deterioration in the parties’ already difficult parenting relationship. This parenting dynamic already seems to have caused some degree of emotional dislocation for both [X] and [Y]. However, in making the decision, it is inevitable that I will make one party feel hard done by and possibly unheard.
However, the polarised positions of the parties and their inability to reach a compromise render it inevitable that I must make a decision. I hope the resolution of the issue will not cause any undue deterioration in the parties’ parenting relationship and each of them will cope with the decision, which must be made so that the difficulties for both [X] and [Y] will be minimised and everyone can adjust appropriately to the relevant decision and move on calmly.
Background to the hearing of 18 January 2018
The parties have never been married. They lived together between 2004 and 2010. Accordingly, they have been separated for many years. The father was born on (omitted) 1972. He is a self-employed (occupation omitted).
The mother was born on (omitted) 1971. She is currently in receipt of social security. She has some complex and longstanding health issues and is in the process for applying for a disability support pension. It is unlikely that she will ever return to the paid workforce.
Shortly after separation, the father began proceedings in this court seeking orders that [X] and [Y] live predominantly with him. His position was informed by his assertion that the mother’s health issues relating to her suffering arthritis, chronic back pain, chronic fatigue syndrome, fibromyalgia, pelvic displacement and depression rendered her unable to discharge the challenging obligations of parenting children of the then ages of [X] and [Y]. It was his position that the mother’s issues had rendered him the children’s primary provider of care.
On the other hand, it was the mother’s position that the father was a highly controlling person who had exerted a coercive influence on her during the course of their relationship, particularly in regards to the allocation of family finances. In addition, she also characterised him as being verbally derogatory of her in the presence of the children. As such, she characterised the father as being insensitive to the emotional needs of the children concerned.
The initial proceedings between the parties were complex and protracted. An independent children’s lawyer was appointed and an extensive family assessment report commissioned. The parties’ competing applications were ultimately listed for final hearing before me in October of 2011.
The family report writer concerned, Ms U, wrote as follows in May of 2011:
“In the writer’s opinion, equal shared parental responsibility would not be appropriate because of the high level of conflict and uncooperative behaviour. However, the children appear to have an attachment to both parties, therefore it would be in their best interests to spend significant time with their father if they live with their mother or spend significant time with their mother if they live with their father.
The writer is in favour of the children living with the father because he can offer a more stable and structured environment which they are familiar with.”[4]
[4] See family assessment report of Ms U at paragraphs 43 & 44
Notwithstanding the recommendation of Ms U, in late 2011, the parties were able to agree on a compromise in respect of the parenting of [X] and [Y], which saw them being allocated equal shared parental responsibility for them.
It was also agreed that the children would live with each of their parents on what was tantamount to an equal time arrangement, living with their father for six nights per fortnight and with their mother for eight nights, with school holidays and special occasions being shared.
In order to give effect to these orders, it was necessary for the mother to relocate her home to the (omitted) area. It had been a significant area of initial conflict that the mother and children had left this area on the parties’ separation, and Mr Leyton had been unaware of their whereabouts. It was his position that the mother had fabricated her claims of family violence against him and was intent on destroying his relationship with the children.
As a consequence, it had been initially necessary for him to obtain a Commonwealth Information Order to ascertain the whereabouts of Ms Jacks and the children. The mother’s initial position had been that the children should live predominantly with her and have only professionally supervised time with their father because of her concern about family violence. Accordingly, throughout the initial proceedings the respective positions of the parties were polarised in the extreme.
Consent orders made on 20 October 2011 envisaged, amongst other things the following:
“The child [X] is to be enrolled at (omitted) Primary School to commence in Term 1 in 2012 and cannot be enrolled by either party unless they agree in writing or an order of this Honourable Court is obtained UPON NOTING that it is intended that [Y] is to attend the same school as [X] when he becomes eligible.
That the parties will attend mediation should they be unable to agree any major long term issue and in any event after the child [Y] commences primary school to discuss the terms of the shared care agreement.”
As previously indicated, the parties engaged Ms M to conduct the required mediation between them in respect of the issue of which school the children should attend for their secondary education. This process of mediation commenced in mid-2016 and was paid for by the father. At this stage, it was the father’s preference for (omitted) College. He also indicated to Ms Jacks that he was willing to pay all the costs relating to [X] and, in due course, [Y], arising from the children attending at the school.
It is the father’s perspective that the mother did not take part in the mediation process with an open mind. After the initial meeting with Ms M, the mediation process was deferred so that Ms Jacks could visit (omitted) College and assess its facilities. Mr Leyton asserts that Ms Jacks did not attend the school, in spite of her assurance that she would. In these circumstances, he asserts that Ms M felt that she was not in a position to assist the parties further and therefore terminated the mediation process.
The father commenced these proceedings in late July of 2017. It was his position that his institution of the proceedings was delayed by the mother’s unreasonable intransigence in both the mediation process and afterwards. In a formal sense, he seeks the following orders:
“From the commencement of the 2018 school year that the children of the relationship, [X] born on (omitted) 2004 and [Y] born on (omitted) 2008 do attend (omitted) College.
That the applicant father do pay for all school fees, extra curricular costs and school uniform costs of the said children attending (omitted) College.
That both parties, including the mother, do sign all forms/documents necessary and supply any other forms/documents including the mother's school card necessary in order that the said children can immediately be enrolled at (omitted) College.”
Currently, he is pursuing orders in respect of [X] only. In a spirit of compromise, he is also open to [X] attending at (omitted) College for 2018 only and thereafter her views, in respect of the school being canvassed, by a suitably qualified expert, such as Ms M, to ascertain what should happen from 2019 onwards. He is also willing to defer the issue of which school [Y] should attend, until closer to the time he is due to start at secondary school. Essentially, he agrees to [Y] completing his primary education at (omitted) Primary School.
The father’s application was first listed on 5 September 2017, in a busy duty list. The mother responded to the application on 1 September 2017. In a formal sense, she seeks the following orders:
“From the commencement of the 2018 school year the child [X] born on (omitted) 2004 do attend (omitted) High School.
That the child [Y] born on (omitted) 2008 do remain enrolled at (omitted) school until the end of his primary school education.
From the commencement of the 2022 school year the child [Y] do attend (omitted) High School.
That the mother and father do equally pay for all school fees, school extra curricular costs and school uniform costs of the said children attending (omitted) High School.
That the mother and father do all such things and sign all such forms or documents necessary to enrol the child [X] at (omitted) High School for the commencement of the 2018 school year.
That the mother and father do all such things and sign all such forms or documents necessary to enrol the child [Y] at (omitted) High School for the commencement of the 2022 school year.”
For all sorts of reasons, the Federal Circuit Court is a busy first instance court, which is called upon to deal with many cases concerning many families who confront diverse situations, including situations which are asserted to pose a grave risk to the safety of children.
These difficulties include allegations of exposure to serious family violence; and the exposure of children to parents who suffer from serious psychiatric issues and other forms of impairment as a consequence of substance abuse. That is not the case here. Both parties are constructive and law-abiding members of society who are capable parents.
As a consequence of the pressures of business upon it, the court is not always in a position to slot in cases involving some degree or other of urgency without deferring other cases, which raise issues relating to the fundamental safety of children. In addition, for financial reasons, the resources of the court, particularly in respect of the provision of extensive family reports are limited. As such, the court is not in a position to routinely commission a family report, particularly when the report is required expeditiously or in respect of one closely defined issue only.
In early September of 2017, as I recall, it was the preference of Mr Leyton that I determine the issue of which school the children should attend on the papers – that is without the need for any extensive oral evidence from the parties to be canvassed. In addition, at this stage, I had no input, from either [X] or [Y]’s perspective as to their personal preferences in respect of their future education.
At the time, I was well aware that any decision I would make had potentially serious ramifications for them, and I was concerned that it would be imprudent for me to make any such decision without at least attempting to canvas their views or gauge what other factors might be impacting upon them. I was also hopeful that perhaps some compromise could be found, which would spare all concerned the angst of having the issue unduly protracted.
However, I was also well aware that by September of 2017, time was running short in respect of the 2018 school year, particularly in terms of the preparation of a family report. In addition, neither party could be described as being in a strong financial position. Accordingly, the prospects of them being able to commission an urgent family report in sufficient time to inform the decision required appeared problematic.
In these circumstances, I elected to refer the parties to a child inclusive conference with a family consultant pursuant to the provisions of section 11F of the Family Law Act 1975. This section authorises the court to seek advice from a family consultant [see section 11E(1)] before exercising its jurisdiction under the Act.
Again, primarily for resource issues, the earliest such conference available to the court was on 5 December 2017. I was well aware that time was running out for a decision to be made in an ordered manner well in advance of the commencement of school. However, I also considered it imprudent to proceed without at least some form of reference to the children themselves.
In respect of her interviews with the children, Ms R reported as follows:
“[X] (13) was interviewed alone. She impressed as a confident, articulate teenager who was careful in what she said and how she said it and gave the appearance of trying hard not to upset either parent.
…
Despite visiting the college the previous day she said that she wanted to go to (omitted) High School. She said she knew staff there and almost all her friends would be going there. She would have no existing friends at the college but at the high school she would have several of her closest friends in her class. She said that the college is religious, she does not believe in God and going to church bores her.
[X] described having spent the eighteen months of the dispute over which school she should go to having conversations with people who attended both schools and from the information she had gained through that and through her visits to the schools she was very clear that (omitted) High School was the school she wants to attend. She appeared to have given the matter full consideration and she was very clear about what she wanted.
[Y] (9) was interviewed alone. He impressed as a quiet, somewhat withdrawn child. [Y] said he likes his current school, he has lots of friends and they are important to him. He does not want to change schools. He said that to change school could ‘ruin your school life. It would change all the work things and all your friends.’
[Y] said that his father yells at him sometimes but that his mother does not. He described conflict with the stepmother who ‘hits me and kicks me sometimes’. He said that she had last smacked him a couple of weeks ago at her work.
[Y] said that it is stricter at his father’s house than at his mother’s house and he then gets into trouble for things he would not at his mother’s house. He said it is hard to go back and forth between the houses. He wants to stay at his current school ‘a lot’.”
Mr Leyton does not accept that family consultant Ms R has accurately encapsulated [X]’s views about (omitted) College. It is his position that [X] has consistently reported to him that she is positively disposed towards (omitted) College and wants to go there. It is his position that [X] has either been actively or unconsciously influenced by her mother’s strong views and is attempting to mollify her.
Ms Jacks does not agree. It is her position that Ms R has accurately recorded [X]’s views and she has not attempted to influence the child in any way. It is her case [X] has visited each school and has an obvious preference for (omitted) High School.
The case was adjourned following the child dispute conference to 18 December 2017, the working week prior to Christmas, which is notoriously a busy time for the court. As is self-evident, Ms R’s report to the court did not assist the parties to resolve the issues arising between them.
On 18 December 2017, there was no time available to deal with the matter. Once again, I was not prepared to resolve the matter on the papers, given its obvious importance to both the father and the mother, in the context of their polarised positions and the longstanding tensions in their parenting relationship.
In these circumstances, I elected to allocate some time for an urgent half day hearing, which would involve some oral evidence from the parties and cross-examination. I wished to hear directly from each of them, so that I could form my own impression of what sort of people they are from my direct observation of them.
More significantly, I was anxious that both parties should feel heard by the court and not left with the impression that a capricious decision had been made about their children. Essentially, I was anxious to avoid any impression that this important decision had been rushed or had been made following a truncated hearing, merely for pragmatic or logistical reasons relating to the exigency of the situation.
The hearing took place as scheduled, on 18 January 2018. Both the father and mother gave oral evidence and each was cross-examined by counsel for the other party. No other witnesses were called. Given the volume of material provided, particularly by Mr Leyton and the sensitivity of the issue, I deferred my reasons for decision until 25 January 2018. I am well aware that this is cutting it extremely fine so far as the 2018 academic year is concerned, but from my perspective it was unavoidable.
My impression of Mr Leyton is that he is an assertive and self-satisfied person. I do not however question for a moment the strength of his conviction that (omitted) College is an excellent school and, in objective terms, is likely to provide a far superior education for [X] than (omitted) High School.
To Ms R, Mr Leyton indicated that he himself had attended boarding school. Initially, as a child, he had not wanted to go to that school which required him to separate from his then friendship group. However, in retrospect, he was grateful for the long-term benefits which he had received as a consequence of attending that school, which like (omitted) College, was a school operated by the (omitted) Church.
In his initial affidavit in support of his current application, the father deposed as follows:
“(omitted) College is run by the (omitted) Church but is not a strongly religious school. I attended (omitted) College and I was very happy with my education at (omitted) College and felt that it fostered good ethics and values in its students and I am confident that (omitted) College will do the same for [X] and [Y] if they attend there. It is a Reception to Year 12 school. It started in 2001 and it has been growing strongly ever since. It has approximately 500 students. This is its second year of offering Year 12. There is a strong emphasis on science and maths education and also a very strong music program and a strong sports program. The alternative is for the children to attend (omitted) High School. This school has about 800 students. There are regular reports of problems with students on the school campus and I am aware there have been reports of sexual offences perpetrated by students on others, including sexual offences such as rape.[5]
[5] See affidavit of Mr Leyton filed 28 July 2017 at paragraph [8]
I do not doubt the integrity of Mr Leyton’s assessment of (omitted) College. His view of (omitted) High School is likely to be somewhat jaundiced and therefore lacking in objectivity. However, for obvious reasons, his assessment of (omitted) College is liable to be highly influenced by his own subjective educational experience, at his former (omitted) College school. Necessarily, the same thing can be said of Ms Jacks and her preference for (omitted) High School.
Ms Jacks presented as a somewhat diffident and unsophisticated person. In my assessment, she does not have closely considered grounds for opposing (omitted) College on religious grounds alone, or a clearly articulated opposition to the provision of religious education in schools generally.
In her oral evidence, she deposed that “religion is a funny thing to me” and as such “something you should not be learning at school”. As such, the mother considered it potentially detrimental to [X] to be in a position involving the “forcing [of] religion” on her. I accept that the mother has not attended any religious service for many years. She does observe Christmas and Easter but only in a secular fashion.
In terms of the differential in the standard of education between the two schools concerned, Ms Jacks was of the view that the education would be generally comparable. She justified this position by her view that the “teachers at both schools would have attended the same universities” and therefore the teachers at each school would have a comparable capacity. She did however concede that class sizes at (omitted) College were likely to be smaller.
The tension and conflict between the parties is endemic and unlikely to dissipate in the foreseeable future. The level of acrimony between them has been complicated by the fact of Mr Leyton re-partnering. His current partner, Ms R is the (occupation omitted) of the (employer omitted) in (omitted). She has two children aged 9 and 7, who live in a shared care arrangement with her and their father. She wishes these children who currently attend (omitted) Primary School, to attend (omitted) College, in due course.
It seems to be the case that issues have arisen between the parties about the influence of Ms R with [X] and [Y] and the inevitable problems which arise from them having to adjust to living in a blended family. [X] reported to Ms R that she had an okay relationship with her step-mother. [Y] described some conflict with her. These complex but contemporary parenting issues seem to have added to the already high levels of tension between the parties.
In these circumstances, it is inevitable that the preferred outcomes of each of the parties will have been influenced by their longstanding history of conflict and mistrust for one another. In my view, this is more marked so far as Ms Jacks is concerned. She is unlikely to trust the judgement of Mr Leyton and to some degree oppose his position merely because he is propounding it.
As previously indicated, it was Ms R’s view that the parties had very different parenting styles and therefore aspirations for their relationship with the children. I agree with this assessment, as do the parties themselves. The father describes himself as being a directive parent; whereas the mother wanted to be the children’s friend.
Ms Jacks did not accept this characterisation, describing herself as the children’s mother. However, she accepted that from her perspective the most important thing was that her children should be happy and necessarily this entailed their views and desires being given precedence over other considerations. Without wishing to attach any pejorative notions to the characterisation, I would assess the mother as being a more permissive and less directive parent than the father. She is also far less focussed on the long term than he.
Like the father, Ms Jacks’ views in this case are likely to be strongly influenced by her own experiences of education. She left school at the end of Year 10, albeit for reasons relating to her then impaired health. It is her perspective that leaving school at this early stage did not represent an impediment as she was able to get a job.
In the context of her desire to give effect to [X]’s preferences, the mother points to her interest in such things as (hobbies omitted), which are offered at (omitted) High School and which are of interest to [X], as being factors which indicates the school’s superiority, or at least equality with (omitted) College.
In my view, these are not long-term considerations and cannot be described as being intellectual in nature. It is my view that Ms Jacks is not strongly motivated by any long-term considerations of the potential benefits of either school so far as [X]’s education is concerned or more particularly concerned about which school is more likely to stimulate her intellectual development. Given her perspective on education generally, these are not important matters so far as the mother is concerned.
In all these circumstances, it is my finding that Mr Leyton is the better placed of the two parents to make an objective assessment of which school is likely to be more intellectually proactive, so far as [X]’s education is concerned and so which is likely to be the more optimal one, so far as providing her with the most conducive academic environment.
In these circumstances, I accept his assessment that (omitted) College is likely to be the better school academically for [X]. In this context, I reject the suggestion that he has selected the school for its prestige alone. In my assessment, Mr Leyton is prepared to commit financially to (omitted) College, only on the basis that he sincerely believes that it is the best option for the children concerned.
The father described [X] as a keen reader, who was good at maths and English. At this stage, he reports that she is interested in pursuing a career in a field relating to (omitted). At present, it is the father’s perception that [X] has been coasting at school and requires more of a push, particularly in respect of doing her assigned homework.
It is his position that (omitted) College will provide this academic discipline, but (omitted) High School will not. Mr Leyton is fearful that [X] will not be pushed at (omitted) High School and will not develop a sense that she must be accountable for her academic development, attributes he believes apply at (omitted) College.
Overall, Mr Leyton believes that the educational ethos of (omitted) College is superior to that of (omitted) High School. He refutes any suggestion that such things as (interests omitted), will not be offered at (omitted) College, which he describes as being an arts focussed school and one with a strong science background.
Ms Jacks describes herself as being somewhat introverted in temperament, a trait which she believes she shares with [X]. It is her view that [X] does not make friends easily and therefore is likely to find some difficulty in adjusting to (omitted) College. It is further her view that the child has spent many nights in tears in contemplation of the prospect of being sent to (omitted) College and feels that no one is listening to her in respect of the issue.
Mr Leyton describes [X] as being very polite and believes that she will adjust to whatever school she is sent. He describes her as being a child with a constantly changing friendship base, who makes friends relatively easily. It is also his position that [X] has some associates, who may not be her closest friends but whom she knows from (hobbies omitted), who are scheduled to attend (omitted) College. I accept that [X] does have some acquaintances who are scheduled to attend (omitted) College in 2018. As such, she will not be a total stranger there.
In all the circumstances of the case, in my assessment, both parties are likely to have a realistic impression of [X]’s disposition and individual preferences. However, these impressions are likely to differ. In addition, as previously indicated, each is likely to be influenced in his/her views as to their past subjective experience of education and their antipathy for any view or opinion expressed by the other, particularly in regards to any issue pertaining to the children.
Balancing all these general factors against one another in general terms, whilst accepting both parties validly and strongly hold their individual preferences and opinion as to what is the best form of education for the children, it is my assessment that Mr Leyton is the more objective parent in this regard and the one more capable of making a long-term assessment of what is likely to be better for the children, particularly within the matrix of overall academic considerations.
The application legal considerations
Part VII of the Family Law Act 1975 is the part of the Act which deals with arrangements for the care and parenting of children. At the commencement of Part VII is a list of aims and principles, which the court is directed to consider to ensure that a child’s best interests are met through any parenting orders it makes.
The list of objects or aims of the legislation is set out in section 60B(1). They are as follows:
“(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.”
Although he does not put it in explicit terms, it is the father’s contention that paragraph (c) above is an objective, so far as [X]’s welfare is concerned, which the court must have at the forefront of its deliberation. In his submission, [X] is currently at something of educational cross-roads. If she attends (omitted) College, she is more likely to have her innate intellectual potential unlocked than if she attends at (omitted) High School.
I am not in a position to dismiss this contention. However, to paraphrase the former United States Secretary of State, Mr Rumsfield, it is a known unknown. For all I know, there may be teachers at both (omitted) College and (omitted) High School, who have the potential to strike a chord with [X] (and indeed [Y]) and place them on the path towards a fulfilling life.
The principles or code of ideas, which underpin those objects, are set out in section 60B(2) and are as follows:
“(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).”
The order of 20 October 2011, which previously finalised parenting arrangement for [X] and [Y] is to be characterised as a parenting order. A parenting order may deal with the allocation of responsibility for making decisions about major long-term issues arising in respect of any child [see section 64B(3)].
Major long-term issues in respect of a child include issues related to that child’s long term care, welfare and development and specifically includes issues to do with the child’s:
·Education (both current and future);
·The child’s religious and cultural upbringing;
·Issues pertaining to the child’s health;
·The child’s name; and
·Changes to the child’s living arrangements which are likely to make it significantly more difficult for the child to spend time with a parent [section 4].
Pursuant to section 65DAC of the Act, parents who share parental responsibility are directed to make decisions regarding major long-term issues, in respect of their children, jointly.
The onus placed on such parents by the provision being to consult with one another and make a genuine effort to come to a joint decision about any major long-term issues pertaining to their child [section 65DAC(3)].
I am satisfied that the parties have, in bona fide fashion, attempted to reach a consensus about their children’s education. However, it is not possible for them to reach such a consensus. Necessarily, the factors which lead to the failure of their relationship, in the first place, also have the potential to lead them to having very different views about all manner of things, including in respect of arrangements for the parenting of their children.
The question of which school [X] is to attend, like all issues pertaining to children, is to be determined by reference to [X]’s best interests. The service of her best interests is the paramount or most important consideration in this case [see Family Law Act section 60CA].
In determining where those best interests lie, the court must specifically consider the matters set out in section 60CC of the Act.
Section 60CC creates two classes of considerations, which apply to the determination of a child’s best interests – primary considerations and additional considerations.
There are two primary considerations, which are set out in section 60CC(2)(a) & (b) namely:
“(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.”
In my estimation, whatever is the outcome of this case, both [X] and [Y] will continue to benefit from having a meaningful level of relationship with both their parents. In addition, thankfully, this is not a case which is centred on the need to protect either of them from harm as a result of being exposed to abuse, neglect or family violence. It is my perception that both children are loved and well cared for by both their mother and father.
The additional considerations are more numerous, being fourteen in number. They are set out in section 60CC(3) and are categorised as being additional considerations.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[6]
[6] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[7] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[8]
[7] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[8] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
Given the nature of the dispute between the parties, in this case, the following additional considerations, arising from section 60CC(3) appear to be of particular significance:
(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;
…
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
…
(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;
…
i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The father’s case in more detail
As previously indicated, it is Mr Leyton’s case that (omitted) College is academically superior to (omitted) High School specifically and other state funded schools generally. In this context, he has provided a breakdown of the school’s results for the 2016 academic year for year 12. These indicate that 100% of the school’s students passed and over 50% received a grading of B or above, which was superior to results obtained in the public sector.
Mr Leyton has also provided evidence regarding his family’s association with (religion omitted) associated with the (omitted) Church. His mother was a (occupation omitted) at (employers omitted). She was also a member of the (omitted) for its first five or six years. His father was a (occupation omitted) at (employers omitted). In these circumstances, I accept that the father has a very close personal connection with schools related to the (omitted) Church, including (omitted) College specifically.
Financial issues loom large in this case. They are a source of much acrimony between the parties. As previously indicated, Mr Leyton is a self-employed (occupation omitted). It is his evidence that, over the past few years, although his business has grown, it has also been beset by a number of poor seasons. Accordingly, for the last few years, his child support income has been assessed as being nil.
This situation has led to the anomaly that, although she is in receipt of social security, as her sole source of income, the resulting child support assessment has led to the mother being assessed to pay child support to the father in the statutory minimum amount. It is my understanding, however, that this sum is not actually collected.
In these circumstances, for obvious reasons, Ms Jacks is dubious at Mr Leyton’s assurance that he will pay all of the children’s school fees at (omitted) College, including the costs of their uniforms and any incidental fees. In these circumstances, she is also weary of being left unwillingly liable for education expenses, which she neither sought nor agreed to. In my assessment, there is considerable merit to her concerns.
These concerns are heightened by her suspicions that Ms R may be paying not only her own children’s fees but also potentially those of [X]. Ms Jacks does not believe that this can be a sustainable arrangement in the longer term. She is also concerned that Ms R is subsidising other of the father’s living expenses.
I have been provided with the profit & loss statement for (business omitted) for the first quarter of the 2017/2018 financial year. This shows a net profit of approximately $6,500.00. In his oral evidence, the father indicated that he had made approximately $20,000.00 in the last three months and held savings of $8,000.00 currently.
He asserted that if he was unable to pay any fee arising from either child’s attendance at (omitted) College, his parents would be willing to pay such fee. However, this assertion is not supported by any affidavit evidence or direct proof from either Mr or Mrs Leyton.
It is the father’s evidence that he has paid the sum of $5,000.00, into (omitted) College’s trust account, on 10 January 2018, on account of [X]’s fees. He denies the contention that this sum was provided in respect of anticipated fees for Ms R’s children or was otherwise provided by her. In these circumstances, it is his position that [X]’s fees for the 2018 year have been already met and therefore there is no possible liability whatsoever for Ms Jacks.
It is also the father’s position that his business is likely to grow in the future and become more profitable. Accordingly, he is confident that it will provide sufficient income for him to meet the children’s fees, at (omitted) College, which he describes as being more modest than comparable private schools. Discounts are also provided for siblings attending the school and parents can also apply for a rebate on fees if they are school card families. In this context, he relies on the following passage from (omitted) College’s 2018 Fee Schedule:
“It has been (omitted) College’s focus to ensure that the fees are kept at an affordable level to provide quality facilities and resources for the students who attend the College. Whilst maintaining reasonable tuition fees, we continue to develop dynamic and contemporary facilities which are of great importance.”
It is the father’s position that the facilities at (omitted) College are significantly better than at (omitted) High School.
Because of her receipt of social security, the mother is entitled to such a school card. It is Mr Leyton’s evidence that this would reduce the annual fee for [X], at (omitted) College to under $4,000.00, which would include all excursions and other incidental expenses. It is also his position that he would be able to purchase items of school uniform, from the school shop at a reasonable cost well within his means.
In addition, the father refutes any suggestion that staff at (omitted) College will actively attempt to proselytise either [X] or any other student at the school. In this regard, he relies on a letter from Mr K, the principal of (omitted) College, who confirms that although Christian studies is part of the school’s core curriculum, as is attendance at a weekly religious service, he notes that many students at the school and their families are not actively worshipping Christians and the content of the Christian studies program incorporates a focus on other religions and does not require students to make any personal commitments to the (omitted) College faith or any other.
The mother’s case in more detail
Ms Jacks’ objections to (omitted) College can be summarised as follows:
·She objects to the children attending a faith based school;
·Neither child, but particularly [X] wishes to attend the school;
·She is not in a position to pay any fees arising in respect of the children attending (omitted) College and doubts Mr Leyton’s undertaking that either he or his parents will pay all fees arising from the children attending at (omitted) College;
·(omitted) High School provides a standard of education broadly equivalent to that provided by (omitted) College.
The mother describes herself as an atheist. She has provided a copy of (omitted) College’s prospectus, which describes the school as:
“… encouraging students to express their spirituality through asking questions and being willing to engage the work of the (omitted) and the gift of God’s grace through Jesus Christ.”
From her perspective, such a statement is inimical with her own personal beliefs and, as such, not something she wishes to expose [X] to. As previously indicated, it is also her position that [X] shares her disinterest in religion.
Ms Jacks has further deposed that the children have complained to her that they are forced to attend church by Ms R, which they do not enjoy because they find it boring. The father refutes this assertion saying that the children are not forced to attend church with Ms R, but attend voluntarily with both children engaging in some of the church activities. In particular, [Y] participated in the annual nativity play.
The father also refutes the mother’s assertion that she has no religious background whatsoever. To the contrary, he asserts that Ms Jacks’ mother was active in the (omitted) Church and she (the mother) also regularly attended church as a child. The mother confirmed that this was so, particularly that her mother played the organ at church.
The mother has deposed recently that [X] has a large group of friends who currently attend (omitted) Primary with her and who will be attending (omitted) High School next year. It is her case that it will be emotionally disruptive for [X] to be separated from her cohort of friends and have to make new friends at (omitted) College. From her perspective such a disruption cannot be justified.
The mother has provided the children’s school reports, for the first semester of 2017, from (omitted) Primary. [X] is described as a well-rounded student … always seeking to do her best. She received A’s for English, Maths and Science. In these circumstances, the mother characterises [X] as a self-motivated student, who does not require any pushing, as characterised by the father and accordingly, there is no imperative to send her to (omitted) College or any other private school.
In this context, Ms Jacks has provided a copy of the Year 9 curriculum handbook for (omitted) High School, which indicates that the school offers a comprehensive STEM program, which she believes will be suitable to develop [X]’s existing interests in science and mathematics.
However, in my estimation, Ms Jacks’ major objections to (omitted) College are financially based. She does not believe that the school offers value for money and objects to paying for what the State will provide gratis. It also galls her that Mr Leyton has indicated has apparent willingness to pay the school’s fees but is not currently assessed to pay her child support and has not been so since 2015. It adds insult to injury, from her perspective, that the father justifies the fees on the basis of the school card, to which she, rather than he, is entitled.
The fees for (omitted) College, both in respect of parents who not eligible for a school card and those who are, are currently as follows:
Full Fees Years 7-9 Years 10-12 Tuition $4,714 $5,928 IT Levy $500 $500 Magazine per family $25 $25 Tuition fees total $5239 $6,453
School Card Years 7-9 Years 10-12 Tuition $2,687 $3,379 IT Levy $500 $500 Magazine per family $25 $25 Tuition fees total $3,212 $3,904
A 20% discount applies for a second child attending the school, which progresses to 30% and 40% for a third and fourth child respectively. I am unaware if these discounts would apply to Ms R’s children. School camps cost in excess of $500.00 per annum.
Discussion
In my view, the parties competing applications in this matter, are very finely balanced. For the reasons provided above, I am of the view that the father is better placed in an objective sense to assess the overall educational merits of (omitted) College. The mother’s preference for (omitted) High School and her antipathy for (omitted) College is likely to be more based on her subjective response to (omitted) College than any capacity she has to judge its academic merits objectively.
I do not accept her contention that Mr Leyton has selected the school because of any prestige attached to it arising from the fact that it is a private one. Rather, I accept that it is his preference for [X] to attend the school because it is academically superior and likely to provide superior pastoral care and discipline, which are aspects of education calculated to be helpful to [X], given her own temperament and intellectual ability.
For these reasons, in my assessment, Mr Leyton is better placed than Ms Jacks to attend to [X]’s intellectual needs. In making this assessment, I have no wish to be disparaging of Ms Jacks. The issue is one close to line ball but regardless of its closeness, a decision must be made, and in my view, Mr Leyton is a nose in front in this regard.
[X] is currently thirteen years of age. She will be fourteen in (omitted). Ms R described her as being both confident and articulate. I have therefore no doubt that she has given careful thought to the issue of which secondary school she should attend and it is a matter of much moment for her. How could it be otherwise – from [X]’s perspective, as with her parents, it is a life changing decision and necessarily a very important one, given hitherto she has not been subject to a great many such significant decisions.
The difference however between the positions of [X], on the one hand and her parents, on the other, is that [X] will have to live directly with the consequences of the decision. At the end of the day, this is something which I must hold in the forefront of my mind. It is [X] who will be going to secondary school and it is she who must adjust to her change of circumstances, not her parents. In these circumstances, it would be both antediluvian and condescending for the court and her parents not to have some regard for her feelings.
In general terms, [X] must have some impression of both (omitted) College and (omitted) High School, which she has gained from exposure to children who have attended each institution or who engaged with children, including relatives who have. She is also likely to be influenced by the views of her peers about each of these schools. As such, whatever view [X] holds about the schooling issue, it cannot be easily dismissed as being a capricious or ill-informed one and most certainly not an issue of consequence for her personally.
To the contrary, I accept that the issue is of the greatest importance to [X] personally and will be one which she will have discussed with her peers. It would also be unreasonable for me to expect that [X] would be able to divorce her views and preferences from those of her current friends, who are going on to (omitted) High School for their secondary education. It is also highly possible that [X] will have been influenced by issues of a short-term nature, which are nonetheless very important to her now, such as (hobbies omitted) course.
In Croft & Croft[9] I attempted to summarise the legal principles, attaching to a child’s views, in the following terms:
“The applicable legislation requires me to consider any views expressed by the children concerned and any factors which may affect the weight to be given to those views, such as the children’s maturity or level of understanding. The legislation speaks of views rather than wishes. The latter is a more concrete concept; the former is more addressed to perceptions and feelings.[10]
Accordingly, a child is not required to make a decision about what is the appropriate outcome for him or her in any particular case. Nor is he or she required to express an explicit wish as to which parent or other significant person he or she wants to live with or spend time with.
However, it seems that the court is required to explore a child’s perception of what he or she feels is likely to be best for him or her. Very often these perceptions will be ambivalent and difficult to express or quantify. This is particularly so with younger children. This does not mean that a child’s view should be disregarded.
To the contrary, over time, there has been an increase in the judicial regard given to the rights of children in proceedings such as these. It is often said that children have a right to be heard. Certainly children’s views are important and requiring of being given “proper and realistic weight” rather than token regard.[11]
It is also impossible to catalogue all the factors which may be at play in shaping a child’s view in any given case. Matters of individual preference are idiosyncratic but no less important for that. It has been said that the process of weighing up a child’s professed view is “a process of intuitive synthesis”. What is done with those views is a matter of common sense in the overall assessment of what is likely to be in a child’s best interests.[12]”
[9] See Croft & Croft [2017] FCCA 588
[10] See Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 at paragraph 56
[11] See H v W (1995) FLC 92-598 at 81,944
[12] See R & R: Children’s Wishes (1999) 25 Fam LR 712 at 724
I accept that [X] clearly indicated to Ms R that her preference was to attend (omitted) High School because most of her friends were attending there and she had no existing friends at (omitted) College. Given what Ms R has reported it as being [X]’s desire not to upset either of her parents, it must have been difficult for her to articulate this view, knowing it would inevitably get back to both her parents. In these circumstances, I am not in a position to easily discount [X]’s stated preference.
However, in my view, important as a child’s view is, it is one factor amongst many others, to which regard must be had in the resolution of this difficult issue. In my view, it remains the case that it is parents, rather than children, who must be responsible for making the fundamentally important decisions relating to their children’s long-term interests. This, after all, is the essential nature of parental responsibility.
Although I accept that she is a mature teenager, [X] is not better placed than her parents to make the necessary judgements required to determine what is the best school for her, not only now, but so far as her future prospects are concerned. At the end of the day, as I discussed with Ms Jacks in her evidence (and with which she reluctantly agreed) there are times when it is necessary for a parent, in order to ensure their child’s best interests are advanced, to make decisions, which he or she is aware are unpalatable to the concerned child and indeed are ones which are vehemently opposed by that child because it is for the best in the long run.
Accordingly, having accepted that Mr Leyton’s assessment in respect of the superiority of (omitted) College, it is my view that important though [X]’s views are, a parent’s objective assessment must prevail over a child’s preference. [X] has been described as a polite and emotionally stable child. In these circumstances, I consider it more likely than not that, with time, [X] has the emotional resources to adjust to any decision which does not meet with her immediate approbation and understand, in due course, why it was made.
It is Mr Leyton’s contention that, in expressing a preference for (omitted) High School, [X] has been emotionally caretaking for her mother, knowing full well Ms Jacks will be upset if [X] attends (omitted) College. I am not in a position to either accept or reject this contention.
However, at the end of the day, I must also bear in mind that the issue of [X]’s secondary school, important as it is to all concerned, is also one which falls within the panoply of the kind of decision routinely and unexceptionally decided by a huge number of Australian families each year.
It is a frequent occurrence of contemporary Australian society that children go to different schools after the completion of their primary school years from those attended by their former contemporaries. This does not mean that childhood links are forever severed or necessarily that any great long term emotional harm is done to the children concerned.
Rather, such things are the ordinary rites of passage of childhood, including the move from primary to secondary school. When the tumult of this decision has subsided, I would ask the parties to bear these thoughts in mind and support [X] in her transition to her new school, which should be an exciting and challenging time for her.
In my estimation, this is a case more about financial issues than religious ones. I accept Mr Leyton’s evidence that (omitted) College is not an overly proselytising school or one which is likely to attempt to brainwash [X], with religious doctrine, which she will rigorously resist and resent. Although it is clearly a (omitted) School, in my estimation it is one which remains within the mainstream of Australian society. Accordingly, in my assessment, Ms Jacks’ objections to it, on religious grounds, are somewhat opportunistic.
That cannot be said for her objections on financial grounds. I agree with her assessment it is highly ironic that, notwithstanding his nil child support assessment, Mr Leyton has indicated that he is not only in a position to pay all of [X]’s school fees and incidentals, but always will be. From her perspective his stance, in this regard, is tinged with hypocrisy – he is ostensibly willing to pay for her education, but not provide other aspects of her financial support.
In my view, the mother is quite entitled to be suspicious of his undertaking in this regard and therefore fearful that, once [X] starts at the school, there is a reasonable possibility difficulties will arise in the payment of her fees, which may necessitate her removal from the school with a concomitant occasioning of emotional upset and disappointment to her. In these circumstances, I acknowledge that there is much to be said for the court not taking such a risk, so far as [X]’s feelings are concerned, at this stage, given the parties’ overall precarious financial position.
I accept that it is unlikely Ms Jacks will return to the paid workforce. Accordingly, even with the provision of a school card, [X]’s school fees arising from her attendance at (omitted) College, are likely to be far beyond her means. Similarly, although Mr Leyton asserts that his (business omitted) is growing and will provide him with a reasonable living for the foreseeable future, it is not beyond the bounds of possibility that he will be living hand to mouth for the next few years, as he has done since 2015, due to a couple or more poor seasons.
In these circumstances, although I accept that the fees for (omitted) College are modest in comparison to other (omitted) College and private schools, the fees arising for [X] attending at the school have the potential to place a very heavy and indeed potentially unsustainable burden on Mr Leyton alone, notwithstanding his protestations that he will be able to discharge them. In these circumstances, he will be reliant on either his parents or Ms R to assist him.
None of them has given evidence in these proceedings, although I accept that each of them is vitally interested in the outcome of this case. In these circumstances, it does not seem to me to be improbable, given their close personal connections with (omitted) College based schools, that the father’s parents will indeed be willing to pay [X]’s school fees if difficulties arise.
Although Mr Leyton is open to criticism for being, on the one hand willing to accept the advantages of a nil assessment and on the other agitating for the child concerned to be sent to the school of his preference, in my assessment, he has given the financial aspects of the matter some thought. As such, I do not think that he has a cavalier attitude to the prospect of him not being able to manage the fees in future. Overall, I accept that he has considered the logistics, including approaching his parents.
As the parties are aware, the level of financial support to be provided by parents to their children following relationship breakdown, is determined by the provisions of the Child Support (Assessment) Act 1989 “Assessment Act”. It provides a statutory formula, which is to be applied to the financial circumstances and care arrangements for children, which will generate assessments of child support.
The rationale being that this will provide a transparent and equitable scheme, which will be impartially based on the respective financial circumstances of parents so that it can fairly be applied to all, so that children whose parents are in similar financial circumstances will receive the same child support and other government provided assistance. Clearly, the provision of school fees has the potential to distort the equity of such a scheme.
The principle object of the Assessment Act is to ensure that children receive a proper level of financial support from their parents.[13] This object is supported by the following particular objects set out in section 4(2) as follows:
a)that the level of financial support to be provided by parents for their children is determined according to their capacity to provide financial support and, in particular, that parents with a like capacity to provide financial support for their children should provide like amounts of financial support; and
b)that the level of financial support to be provided by parents for their children should be determined in accordance with the costs of the children; and
c)that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings; and
d)that children share in changes in the standard of living of both their parents, whether or not they are living with both or either of them; and
e)that Australia is in a position to give effect to its obligations under international agreements or arrangements relating to maintenance obligations arising from family relationship, parentage or marriage.
[13] See Child SupportAssessment Act at s.4(1)
The objective that the level of child support payable by parents for their children should be readily determined is, at least in part, achieved by the application of the child support formula to the circumstances of the parents concerned.
The formula itself is informed by regular statistical research undertaken by agencies of the Australian Government, relating to the actual costs of providing for children, within the context of wages paid to average salary earners within Australia.
The intention of the legislature is that the formula should be transparent and provide fairly for the financial support of children based on an objective assessment of their needs. The formula is also intended to be responsive to the care provided by separated parents for their children.
In the particular case before me, the application of the formula has resulted in a nil assessment, so far as the payment of child support by the father to the mother is concerned. This is a result no doubt of Mr Leyton’s lack of income from his (omitted) business and the close to shared care arrangements for the children, against a background of Ms Jacks being in receipt of social security.
Although it is the intention of the legislature that the application of the formula will not create anomalies, it is inevitable that special cases will arise from its application, which will require some form of departure from it. The relevant legislation authorises the parties to any child support assessment to apply administratively and, in certain limited circumstances to the court to depart from a child support assessment applicable to them.
In particular, Part 6A of the Assessment Act provides for such a procedure. An applicant must satisfy the Child Support Registrar that one of a number of legislatively stipulated criteria has been satisfied and that in the special circumstances of the case prevailing, it is both fair and proper for a fresh assessment of child support to be made, which is idiosyncratic to the circumstances of the parties and the child concerned.
Germane to the particular circumstances of the parties in this case, section 117(2)(b)(ii) provides a special circumstance justifying departure if the costs of maintaining the child concerned are significantly affected because the child is being cared for, educated or trained in the manner that was expected by his or her parents. This expectation is expressed to be a mutual one. Clearly, in the present matter, Ms Jacks have equivocally indicated that it is not her expectation that either [X] or Jack’s be privately educated.
I am not dealing with child support specifically in this particular case. The payment of a child’s school fees is to be regarded as an incident of the provision of financial support for the child concerned and, as such, is a matter falling within the jurisdiction of the child support registrar, rather than this court specifically.
In these circumstances, I am concerned that I lack authority to make an order directing Mr Leyton to pay [X]’s school fees ad infinitum as this is a matter relating to [X]’s financial support. I am certainly not in a position to direct that the parties enter into a binding child support agreement, which could contractually place the obligation on to Mr Leyton.
In all these circumstances, if Mr Leyton’s income improves, I am concerned at the possibility that he may use any contractual obligation, which he has with (omitted) College, to apply for an administrative departure from any applicable child support assessment. For obvious reasons, this has the potential to be grossly unfair to Ms Jacks, particularly given that, from her perspective, she has made it abundantly clear that she does not want [X] to attend (omitted) College and does not approve of it.
In addition, I can readily understand why she views it as being a misconception of the responsibilities of being a parent that Mr Leyton would prefer to pay school fees rather than to provide direct financial support to her, which will allow her to metaphorically put food on the table for the children. I acknowledge that these are difficult issues indeed, but ones which strongly favour Ms Jacks’ position.
However, putting aside the financial issues, I have reached the conclusion that [X]’s interests will be best served if she attends (omitted) College rather that (omitted) High School. In these circumstances, I note the applicable provisions of the Assessment Act, the parties have emphatically not agreed on the manner in which [X] is to be educated. Accordingly, I do not consider that any issue of departure should arise.
However, to provide some safeguard and reassurance to Ms Jacks, I will require Mr Leyton to provide a formal written undertaking to the court that he (or his parents) will indemnify Ms Jacks in respect of any fees arising from the attendance of either child at (omitted) College. If this indemnity is not forthcoming, I will direct that [X] attend (omitted) High School.
One issue remains – initially, it was Mr Leyton’s proposal that [X]’s views about (omitted) College be re-canvassed at the end of the 2018 academic year by a professional person, such as Ms M. I am concerned that such a proposal has the potential to protract rather than close the conflict between the parties, regarding the education issue and so extenuate the stresses falling on [X]. In my view, it is better that the issue be finalised once and for all, if possible, rather than deferred. These are issues which fall within the purview of section 60CC(3)(l).
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
The parties parenting relationship is extremely poor and likely to remain so. Each party presents as a determined individual. They have been unable to reach any consensus in respect of any issue to do with the children’s education. I have given the matter close consideration and attempted to make the decision, which I assess to be in [X] best interests, particularly in the longer term.
Ms Jacks is not likely to easily accept the decision. The parties and [X] need to move on and adjust to the decision, which in the great scheme of things cannot be regarded as an extraordinary one – [X] will be attending a private school close to her home, which charges modest fees and which other children, whom she at least knows will also be attending. In these circumstances, I do not think that it would be helpful for [X] to provide the parties with a future form, which will potentially allow them to argue about whether the child is or is not content to remain there.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and seventy four (174) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 25 January 2018
Key Legal Topics
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Family Law
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Civil Procedure
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Jurisdiction
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Procedural Fairness
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