M and H
[2006] FMCAfam 746
•16 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & H | [2006] FMCAfam 746 |
| FAMILY LAW – Children’s schooling – views of the children – children’s relationship with step siblings – effects of change in schooling – attitudes to responsibilities of parenthood – alleged agreement on schools – sharing of expenses. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 64B, 65AA |
| AMS v AIF (1999) 199 CLR 160 B & B: Family Law Reform Act (1997) FLC 92-755 Re G: Children's Schooling [2000] FamCA 462 |
| Applicant: | VM |
| Respondent: | AH |
| File Number: | CAM 664 of 2006 |
| Judgment of: | Mowbray FM |
| Hearing date: | 9 November 2006 |
| Delivered at: | Canberra |
| Delivered on: | 16 November 2006 |
REPRESENTATION
| Advocate for the Applicant: | VM in person |
| Advocate for the Respondent: | AH in person |
ORDERS
The father and mother have equal shared parental responsibility for JM born January 1993 and MM born January 1997.
JM born January 1993 attend X Catholic School, Canberra from year 9 to year 12.
MM born January 1997 attend Y Primary School for years 5 and 6, and X Catholic School from year 7 to year 12.
The father pay all school fees associated with JM and MM attending X Catholic School.
The parents share equally the school fees for MM attending Y Primary School.
The father pay all school uniform expenses for the children attending X Catholic School.
Subject to orders 8 and 9, from 2007 each parent meet half the expenses associated with other school and sporting related costs, including school stationery, sporting fees, sporting equipment, school and extra curricular activities.
The mother’s contribution to other school and sporting related costs be limited to $600 per year for the 2 children combined, with the father to pay the balance.
Each parent obtain the prior written agreement of the other parent for any significant expenditure on school or sporting related costs before the other parent is required to contribute in accordance with orders 7 and 8 above.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAM 664 of 2006
| VM |
Applicant
And
| AH |
Respondent
REASONS FOR JUDGMENT
Background
This is an ex tempore judgment which has been revised and edited from the transcript.
The matter principally concerns what secondary schools the two children, JM (born January 1993 – almost 14 years old) and MM (born January 1997 – almost 9 years old) should attend, and who should meet the associated expenses.
Their parents married in 1992, separated in 1998 and were divorced in 2000. Soon after separation the two children commenced living with their parents on a weekabout arrangement. This has continued to the present time. There have been no previous family law proceedings or final orders for these children.
The father has repartnered and is to be married this weekend. He has a 7 year old stepdaughter, CC.
The mother is single and has three other boys: B, who is approximately 7 years old, C approximately 5, and J who is about 1½.
Competing proposals
The applicant father proposes that the two children should attend
X Catholic School, Canberra from year 7 to year 12. In his minute of orders sought he suggests that he pay for all the X Catholic School school fees, but the mother pay for other school and associated extracurricular expenses. The father moved somewhat from that position during the course of the hearing. I will address that below.
The mother wishes MM to attend Y Primary School until year 6. She wants him then to go to a public secondary school from year 7. For JM who is currently in year 8 at X Catholic School, the mother proposes he go to a public secondary school from year 9. She wants the parents to share equally the cost of the children's public school fees and school activities, sport and other extracurricular activities. She seeks a written agreement between the parties on expenditure before one party commits the other party to contribute to that expenditure.
The father's evidence
JM and MM reside on a fifty-fifty shared care arrangement with both parents. These shared care arrangements have been in place since shortly after separation in 1998. The father resides with the children's stepmother, FR, and their stepsister CC who is 7 years old and is in year 1 in school in Canberra.
Child support to the mother to 31 August 2006 has been nil. From
1 September 2006 it is assessed at $107.17 per month. For reasons which I did not find entirely convincing, the father is yet to commence paying this amount.
The father pays $180 per fortnight for JM to attend X Catholic School. He has done this since the end of term 3 in 2005. Previously this amount was shared between the two parents. The fees will be $3,395 for the 2007 year. In 2009, if both boys were at X Catholic School, the fees would be $5,652.
The mother has paid $70 per month for JM's karate classes. The father says this has amounted to a total of $840.
JM attended Z Catholic Primary School in Canberra for kindergarten in 1998 and year 1 in 1999. In 2000 he moved to Y Primary School for year 2 at the mother's insistence. JM is currently in year 8 at X Catholic School and MM is currently in year 4 at Y Primary School.
The father says at about the end of 1999 the mother verbally agreed that both JM and MM would attend a Catholic school from year 7. He says the mother agreed to JM attending X Catholic School's open day in 2004 for prospective year 7 students. The mother says that this was against her wishes.
The father asserts that JM has expressed the wish to continue to attend X Catholic School where he is settled and achieving good results. Both JM and MM are baptised in the Catholic Church. The father says the quality of pastoral care at X Catholic School, in his opinion, is not available at government schools. He agreed that the mother has expressed concerns about the cost associated with a Catholic education. But he noted, and she concurred, that she had provided his birth certificate and previous years report to X Catholic School at the time of JM's enrolment. Nevertheless at that time she again raised the cost issue.
JM commenced attending X Catholic School in January 2005. For the first three terms the father and mother each paid half of the school fees. The father suggested that the mother then approached the school about her financial hardship to see if it might be prepared to waive her share of the fees.
The father said that he wanted the mother to pay for the costs associated with school extracurricular activities, group or individual sporting activities outside of the school, school related stationery expenses and an equal share of dental and medical expenses. He suggested that this would amount to $800 per year.
In addition, he said that the costs for the school uniforms, which should be shared, would total approximately $800 per year for both children. The father says the mother can afford this. The father claims the mother has a child support income of $76,897. He says she is also eligible for $15,871 family assistance each year.
The mother's evidence
The mother is a single mother, raising five boys. JM and MM are the sons of the applicant father. B and C share a father, B being about 7 years old, and C approximately 5 years old. J, is 1½ years old. All the children, apart from J, reside with the mother on a fifty-fifty basis.
J lives full-time with the mother.
The mother gave evidence of her financial circumstances. She is an Executive Level 1 in the Australian Public Service with an income of approximately $76,000 per annum. This amounts to approximately $2,900 gross per fortnight, or just over $2,000 net. She obtains a Centrelink payment of $285 each fortnight. She has not received any child support to date from the father, nor from J's father.
The mother pays B and C's father $125 per fortnight in child support. She pays $923 per fortnight in mortgage repayments, approximately $450 for food, and $565 in other regular expenses. She says that if she received child support from the father and J’s father she would be left with about $300 each fortnight for clothes for five children and herself, for school needs, for sport for the children, for outings, medication and doctors' fees, nappies, loans and child care, and such like. As she has received child support from neither the father nor J's father, this figure is reduced to about $125 per fortnight.
The mother says she is thus unable to provide for child care for J, which is about $200 per fortnight. She says she is unable to service the loan on her car or to fix urgent structural damage to her house that she says would cost about $9,000. She cannot afford termite control which would cost about $5,000. She urgently needs a new car. She has no savings. The mother says that two of her children have hearing problems, and that she and one child have serious dental issues.
The mother alleges that the father committed her to $1,600 per year for JM's karate. He had agreed to pay half and failed to do so. She also says that the father sought to have this extended at her cost. She says that she spent $430 per year for two years on JM's school uniform which she could not afford.
The mother contends that the father bullies her in various ways, for example into paying for things she has not agreed to buy. She pointed to a passage in an email he sent her and annexed to her affidavit filed on 27 September 2006 which said:
I am not asking – I am telling you (foryour information, not to negotiate) my future arrangements with costs for the kids.
She feels bullied by him over school arrangements, over which school MM should attend, and when the father arranges matters against her wishes. Alternatively, he makes decisions without consulting her and then seeks her agreement.
The mother says that she did not agree to Catholic schooling for her children. The father had always insisted the children should attend Catholic schools, but she disagreed and never entered any agreement to this effect. She did not intend to create an expectation in JM that he would go to a Catholic school. She did not agree for him to attend
X Catholic School's open day. He was enrolled against her wishes, although she had provided the documents for enrolment.
She told the father she wanted JM to go to a public school. She had serious concerns about Catholic school fees. She cannot afford them. She wants to provide the same opportunities for each of her five children but cannot afford for all five to go to Catholic schools. She asserts that the brothers provide a good support network for each other at school.
The family consultant's report
The parents and JM and MM attended upon Ms Daphne Dawson, a family consultant who reported the following:
13 [JM] is happy at [X Catholic School] where he has attended since year [seven].. He is now in year eight. [JM] informed that while he would prefer to stay at the school he is at he would be happy to attend any school.
…
16 [MM] who is 9.5 was nervous at the Family Court but appeared to settle. He is in year 4 at [Y] Primary School. He likes school and would be happy to attend either a private or public high school.
…
FEEDBACK SESSION
23 [VM] was informed that [J] would prefer to reside at his present school but would be happy to attend any school. [VM] displayed frustration that his children may not be able to attend the school that he believed he had agreed to with [AH]. He reiterated that he thought that [AH] was eligible for $17,000 pa for the children.
…
25 [AH] was informed of the children's comments over school she reiterated that while she knew that [JM] would prefer to remain at [X Catholic School] it was not viable for her family as she wished all the boys to attend the same school and have the same opportunities. She was adamant over private schooling and explained how everything became more expensive including school clothing.
…
ASSESSMENT
29 [VH] appears to wish to assist [AH]. However he does not possibly fully appreciate the constraints of a family with five children.
30 [AH] was adamant she is not interested in private schooling as she cannot afford it for all her children and she wishes the same for each of her sons.
31 [JM] and [MM] were sad at the situation they find themselves caught in. Both are likely to cope with either school system although [JM] expressed a preference to remain in a system he is now familiar with and where he has friends.
RECOMMENDATIONS
33 It would make the transition for [JM] easier if he could remain at his school until the end of this year.
34 Whichever school the children finally attend, issues of how clothes and educational needs are met need to be clearly defined. As well the times and how children can call each parent by telephone or E.mail should be spelt out for the ease of the children.
35 The parents undertaking a shared financial arrangement is likely to present positive parental modelling for their children.
Consideration
An order concerning a child's schooling is a parenting order (s.64B Family Law Act 1975). In making such an order s.60CA requires the Court to regard the best interests of the child as the paramount consideration (see also s.65AA). However it is not the sole consideration, as pointed out by Kirby J in AMS v AIF (1999) 199 CLR 160.
Section 60CC sets out the matters the Court must consider in determining what is in the best interests of the children. There is no issue on the two primary considerations in s.60CC(2). I therefore turn to those considerations in s.60CC(3) which are materially relevant.
Views of the children – s.60CC(3)(a)
JM is almost 14 years old and is in year 8 at X Catholic School. It is his second year there. His father says he has expressed views that he stay at X Catholic School. He has told Ms Dawson he was happy there and would prefer to stay there, although he would be happy to attend any school.
MM is almost 10 and in year 4 at Y Primary School.
Ms Dawson reports that he likes school and would be happy to attend either a private or a public high school.
Relationships with other persons – s.60CC(3)(b)
The mother has three other children: B, C and J. Currently MM, B, and C all attend Y Primary School. The mother wants all five to attend public secondary schools. She says this will allow for important mutual support, it would provide a good support network for each other. They would be given the same opportunities.
The father also has a 7 year old stepdaughter, CC, who attends
ZZ Catholic School.
I accept the mother's evidence there is a benefit in mutual support and assistance for the children, as well as a convenience for the parents, if the children attend the same school. However I note that it will be some considerable time before B, C, and especially, J, reach secondary school, whilst MM has two years left at primary school. Thus, while there will be some overlap with B, it will be minimal if at all with C and J, and none at all if JM and MM are to attend a senior college in years 11 and 12.
Likely effect of changes in schooling – s.60CC(3)(d)
Of relevance also here is s.60CC(3)(f), the capacity of parents to provide for the children's needs.
If the mother's wishes are accepted, JM will return to the government school system after spending two years at X Catholic School. He has said he enjoys his schooling at X Catholic School and would prefer to stay there. In these circumstances, a change of school must have some adverse consequences for him, even if these are in the relative short term, for example, with the loss of a network of friends and having to establish new relationships.
The mother's financial circumstances are also an important consideration. She has five children on a single income. There can be no doubt this presents a tight budgetary situation for her.
The Full Court said in B & B: Family Law Reform Act (1997) FLC 92-755, at [9.66]:
9.66 … A very important aspect of a child's best interests is to live in a happy family environment. That may be significantly impacted upon where the residence parent is required to live in circumstances which diminish his or her future life either in an economic or a social sense, perhaps, in a long-term way. If that had an adverse impact upon the children's best interests, that may be an important matter to consider. …
9.67 Ordinary common experience indicates that long-term unhappiness by a residence parent is likely impinge in a negative way upon the happiness and therefore the best interests of children who are part of that household. Similarly, where the parent is able to live a more fulfilling life this may reflect in a positive way on the children. However, the ultimate determinant is the best interests of the children; the wishes and desires of the parent per se give way to that.
In my view, it cannot be in JM and MM's best interests if the mother is faced with significant financial difficulties.
Attitude to responsibilities of parenthood – s.60CC(3)(i) and s.60CC(4)
One of the mother's contentions is that the father has often made decisions about the children without consulting her or obtaining her agreement. She cites the decision to send JM to X Catholic School. The father contends that she implicitly agreed – she provided documents for JM's enrolment.
The mother also says that the father bullies her into agreement or going along with his decisions. I think there may be something in this. There is some support in one of the emails. In my view, he was also somewhat overbearing in his cross-examination of the mother.
I am also conscious of the fact that he is yet to pay child support due from 1 September 2006, despite receiving an assessment in August 2006. I did not find his explanation that the Child Support Agency would not accept his payments as convincing.
In all other respects however, I find that the parents have properly accepted their responsibilities as parents.
Other issues – s.60CC(3)(m):
The father says there was agreement when JM moved from Z's Catholic Primary School to Y Primary in 2000 that both JM and MM would attend a Catholic high school. The mother is adamant there was no such agreement. She always wanted the two boys to attend a government high school.
Although I cannot be certain, I am inclined to the view that there may have been such an agreement. I am not sure that the mother was frank with the Court, but I suspect that if there were such an agreement the mother may have been overborne to some extent by the father.
In Re G: Children's Schooling [2000] FamCA 462, the Full Court said at [90]:
That agreement was, however, within a context of circumstances and circumstances have changed in that the residence parent and the children have moved to a new location. To the extent that the principle set out in s60B(2)(d) - "parents should agree about the future parenting of their children" - has been argued to be applicable in this case, it is but one factor to be weighed with all relevant factors. The weight to be given to such a prior agreement must be affected by the fact there has been a change in where the children live, their proximity to the schools under consideration … and the daily practical demands associated with the school.
Here too there have been some significant changes in circumstances since the agreement was allegedly struck. For example, the mother has had further children and has had a change in her financial circumstances. Therefore, any agreement is just one factor to be weighed with all relevant factors.
Conclusions
What then are in JM and MM's best interests – public secondary schooling or a Catholic high school?
There has been no evidence that one system is superior to the other. The father says there was an agreement, JM has been at X Catholic School for two years and X Catholic School provides a high level of education and Christian pastoral care. The children are baptised Catholics.
The mother wants all her five children to have the same schooling opportunities. She says she cannot afford to send her children to a Catholic high school. The resources released by public schooling could be used for other activities for the children. If these two children attend a Catholic school, this would deprive her other three children of resources she will need to direct to JM and MM. The children should attend the same school and thus provide mutual support. She says the government schools in the ACT provide a good standard of education.
In my view this is a very evenly divided matter and an especially difficult decision. However I am satisfied on balance that it is in his best interests for JM to continue at X Catholic School, for MM to continue at Y primary school until the end of 2008, and then for MM to undertake secondary schooling at X Catholic School.
The father should pay for all X Catholic School fees for the children, and while MM is at primary school pay half his fees for primary school. The father should pay for school uniform expenses at
X Catholic School.
The mother's contribution for other schooling and sporting related costs, including school stationery, sporting fees, sporting equipment, other extracurricular activities, should be half of total expenses, with a limit of $600 per year for the children combined. The father should pay the balance.
There must also be prior written agreement between the parties for any activity to be undertaken by the children before the other party is required to contribute to that activity.
In this matter I have carefully considered all the evidence and the parent's submissions. In particular I have reached the view:
·it is not desirable to remove JM from X Catholic School after two productive years
·it is appropriate in the circumstances that MM attend the same secondary school as his elder brother
·it is unfortunate, but not disastrous, that JM and MM's stepbrothers will not attend the same school
·in view of the mother's financial circumstances, it is desirable that some adjustment be made to the relative contributions of the father and mother to JM and MM's schooling and extracurricular activities
·it is desirable, given the past history, that written agreement be reached on significant items of expenditure before parties are required to contribute.
I note the father agreed in submissions to cap the mother's payments for expenses such as school stationery, sporting and extracurricular activities at $600 for the two boys combined. He would pay the balance as well as the X Catholic School fees and school uniform costs.
Although this has not been an easy matter, in the circumstances I believe what I propose is in the best interests of JM and MM.
The orders of the Court are as set out at the commencement of these reasons for judgment.
I certify that the preceding fifty-eight paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Natasha Werner
Date: 8 March 2007
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