Marsden and Marsden

[2016] FamCA 220

FAMILY COURT OF AUSTRALIA

MARSDEN & MARSDEN [2016] FamCA 220

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where the mother has unilaterally changed the school attended by the two younger children of the marriage – Where the father seeks that the mother be restrained from changing the children’s schools – Where the school had decided that the elder child was not to return until he had received appropriate treatment for his mental health – Whether one or both of the children should be re-enrolled at the school – Consideration of section 60CC – Orders made for the parties to all things necessary to re-enrol the older child at the school in circumstances where the school has been actively involved in addressing his mental health and behavioural needs – Orders made for the younger child to remain at the school she is now enrolled in circumstances where she may be at risk of psychological harm from her sibling’s distress.

Family Law Act 1975 (Cth) ss 4, 60CA, 60CC, 65DAE

Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
Re G: Children’s Schooling (2000) FLC 93-025

APPLICANT: Mr Marsden

RESPONDENT: Ms Marsden

INDEPENDENT CHILDREN’S LAWYER: Ms Robertson

FILE NUMBER: SYC 6980 of 2009

DATE DELIVERED: 8 April 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 18 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE RESPONDENT: Mr Cohen of David H Cohen & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Guterres

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Robertson Solicitors

Orders

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. That the child, V born … 2007, is to remain enrolled at X School.

2. On condition that the father pays the outstanding fees payable to W School, the parties are to do all things and sign all documents necessary to effect the re-enrolment of the child, A born … 2004, into W School.

3. In the event that it is not possible for A to be re-enrolled at W School, the parties are to enrol A at the most appropriate school as determined by the New South Wales Department of Education.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Marsden & Marsden has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6980 of 2009

Mr Marsden

Applicant

And

Ms Marsden

Respondent

REASONS FOR JUDGMENT

Background

1. A (“A”) is twelve years old and in his last year of primary school. Unfortunately, like his older brother, M, who is currently thirteen years old, he suffers from psychological challenges including anxiety. This has led to A experiencing difficulty at school and resulted in his school determining that it is unable to accommodate his needs until such time as he receives appropriate counselling and mental health treatment.

2. In light of that decision by the school, A’s mother, who is the respondent to this application, has made a unilateral decision to remove A and his eight year old sister, V (“V”), from the primary school they were attending, W School (“W School”), and enrol them in their local State primary school at X Town. The father has brought this application in order to restrain the mother from changing the school of A and V. The issue I therefore have to determine in these interim proceedings is which school A and V should attend.

3. The application is in the context of a lengthy history of litigation between the parties from the time of separation in late 2009. The history of conflict between the parties, and subsequent litigation, has been outlined in a judgment of Le Poer Trench J delivered 22 May 2015,[1] and a subsequent judgment of mine delivered 14 October 2015.[2] In my judgment I noted that the conflict between the parties is having a detrimental effect on the children’s mental health. Tragically, we are seeing one of the many consequences of that conflict in these current proceedings.

   [1] Marsden & Marsden [2015] FamCA 387.

   [2] Marsden & Marsden (No. 2) [2015] FamCA 855.

Challenges faced by A and M

1. A matter of particular concern is that A appears to be heading down a similar path as his older brother, M. Both children’s mental health and behavioural challenges have impacted upon their education. Fortunately, there is no evidence that V is suffering from similar challenges at this stage. As will be discussed, an issue to consider in these proceedings is whether any steps should be taken to prevent V heading down a similar path as her two older brothers.

2. In my judgment delivered 14 October 2015, I summarised an event which occurred on 14 July 2015 that resulted in M being taken to D Hospital by ambulance for the purpose of undergoing a psychiatric assessment.[3]

   [3] Ibid at [15] – [17].

3. The discharge summary from D Hospital dated 15 July 2015 noted that:

   M was brought in by police under a section 22 after threatening suicide with a shard of glass, in context of his mother barring Internet access due to behavioural issues and is on a background of previous diagnosis of depression, previous CAMHS referrals with no engagement by patient, and previous similar threats and homicidal threats when distressed.

4. The report also noted that M had poor attendance at school with no attendance in the seven week period prior to 15 July 2015.

5. As a result of M’s poor attendance at school, arrangements were made for him to attend the S School which specialises in providing assistance to children who are experiencing difficulties with their education. M has been attending the S School since 27 July 2015. It is understood, however, that arrangements are being made for him to resume attendance at his previous high school, U School. 

A’s difficulties at school

1. By letter dated 12 October 2015 the principal at W School, where A then attended, wrote to the mother informing her of the following:

   As you are aware, [A] continues to experience high levels of anxiety at school, which have resulted in inappropriate behaviours escalating over recent times. His behaviours of absconding from the classroom, defiance and oppositional behaviour which makes it very difficult for the school to provide a safe and appropriately supervised plan for him. Strategies that have already been tried and implemented in the school to support [A] and reduce the risks presented, are currently not being effective.

   [A]’s safety and wellbeing remain our highest priority. After considerable consultation with the Regional Student Wellbeing Team and Regional Consultant, and as outlined in the previous letters to you, dated 3 September and 17 September 2015, it is necessary for [A] to remain on partial attendance until an appropriate program of intensive family therapy is sought, such as Z Services.

2. The letter advised that, in the circumstances, the school would only permit A to attend school for the balance of Term 4 on those days when one to one supervision was available. That supervision appeared to be available between three to four days each week.

3. The mother attended a meeting at W School on 23 October 2015 with the school principal, Ms Y who is a psychologist employed by the Religious Education Office and is the CEO of the Religious Education Office’s Student Wellbeing Team, together with the school’s learning support officer. The minutes of the meeting record Ms Y advising the mother that A was “emotionally on edge” and “constantly in a fight/flight mode”. Various strategies were agreed to assist A both at home and at school.

4. On 3 November 2015 A appears to have suffered from distress to such an extent that he left the school premises. That event was described in an application to Z Family Services which was completed by Ms R, clinical and forensic psychologist, in the following terms:

   On 3 November 2015 [A] left the school premises in a distressed state and refused to return from the side of the road. It was advised that he be taken to the nearest hospital; however, he refused. An ambulance came but the paramedics did not want to force him. His mother, who managed to calm him down after a period of time, took him home.[4]

   [4] Exhibit 2.

5. After that incident, a further meeting was held on 4 November 2015 which included the same participants as those who attended the earlier meeting on 23 October 2015. In addition, a representative from D Shire Family Services was present. At that meeting, Ms Y again expressed concern for A’s mental health and recommendations were made for A to attend a program at Z Family Services.

6. An “Individualised Positive Behaviour Support Plan” dated 4 November 2015 prepared by the school (“the Support Plan”) reported:

   [A] is presenting to school in a distressed state daily, at times refusing to come to school or engage when he is at school. He arrives at school late daily because he refuses to get out of the car, therefore it is difficult to manage supervision via “meet and greet”. He is no longer responding to the relational interventions provided by the teacher and staff.

7. The Support Plan also reported:

   [A]’s mental health needs prevent him from accessing the curriculum. It is very hard for him to engage, focus or maintain engagement with tasks or social interaction with others.

8. Significantly the Support Plan recommended:

   For [A] to have greater mental health support for his trauma presentation and for the family to improve communication and boundaries. For the whole family to begin the healing process.

   (Emphasis added)

9. The Support Plan also noted, in the context of the “main issues”:

   A is very withdrawn at school, defiant and non-compliant. He poses a flight risk and is currently very unpredictable. [A’s] behaviour is best understood from a trauma perspective.

10. Significantly, the Support Plan records that:

    A plan was established that [A] would not attend school until he receives mental health assessment and intervention in addition to family intervention. [The mother] was agreeable to same.

11. The outcomes/agreed actions were noted in the Support Plan to be as follows:

    [Ms Y and Dr R] to complete the [Z] referral collaboratively.

    [The mother] to continue ensuring [A] completes some learning at home as planned, with regular breaks and engagement opportunities.

    Risk assessment and plan to be sent out by [Ms Y] and reviewed by all stakeholders.

    [Ms Y] to communicate [D] Shire Family Services and [BRIC Program]’s concerns about risk assessment to the SWBT coordinator.

    [The mother] to follow up with CAMHS [Child and Adolescent Mental Health Service]  appointment for A and continue assessing support and intervention through [D] Shire Family Services [SSFS].

    [The principal] to follow up with CAMHS and check if they are supporting A and offer background information.

12. Under the heading “Negotiated attendance”, the Support Plan recorded:

    A to stay at home and complete learning with [the mother] until he has engaged in intervention for his mental health.

Attempts by the mother to enrol A at the X School

1. As a result of the outcome reported in the Support Plan that “A was to stay at home until he engaged in intervention for his mental health”, the mother regarded A as being suspended from school.

2. This is shown in the minutes of the meeting that occurred on 25 November 2015 which record the mother as stating “he is currently suspended.” However, the minutes also record the mother as stating:

   ·“He knows it is a temporary thing”

   ·“The expectation is he’ll return to school”

3. The minutes also record the mother expressing the point of view that it would be better for A to have a “fresh start” in the State education system.

Is A presently enrolled at W School?

1. The Support Plan records an agreement reached between the W School and the mother that A would not return to the school until he received mental health support. This is confirmed in the Z Family Services referral form completed by Ms R which records that:

   A decision has been made by the … Education office, …, which states that [A] does not return to school until he has intensive mental health support. This decision was made on 3rd November 2015 following a serious risk management issue and due to [A]’s level of distress at school and oppositional behaviours.

2. As a result of that decision, which meant that A would not attend school until he received intensive mental health support, the mother made a decision not to re-enrol A and V at W School.

3. There is some uncertainty as to whether W School will accept A and V being re-enrolled. In particular, by email dated 18 February 2016 sent to the father,[5] by a representative of the Religious Education Office, it was stated:

   As I mentioned on the phone Sydney [Religious] Schools have responded to the requests made by the ICL for the children.

   As the children are no longer enrolled in our system any decision about future enrolment does not rest with the Principal alone but in the context of our Enrolment Policy.[6]

   [5] The letter was also copied to the Independent Children’s Lawyer and the mother’s lawyer.

   [6] Exhibit 4.

Orders sought by the parties

1. In relation to the issue of schooling, by Application in a Case filed 11 February 2016, the father sought the following order:

   That the mother not be allowed to change the schooling of [A] and [V] without or until such time as an order is made allowing such changes.

2. By way of Response to an Application in a Case filed 17 February 2016, the mother sought an order dismissing the father’s application and in its place, an order as follows:

   That the children, [A] born … 2004 and [V] born … 2007 be enrolled in [X Town] Primary School.

Contentions of the parties

1. By way of summary, the father’s contentions were:

   ·The mother had no legal basis to change the children’s enrolment without consulting him and, even if that was not the case, it was inappropriate for her to do so without engaging in such consultation.

   ·It would be contrary to A’s best interests to change schools in circumstances where W School has developed a comprehensive program to deal with his mental health and behavioural issues.

   ·Whilst W School had indicated that they were unable to deal with A’s mental health issues in November 2015, that was in the context where it was understood that he would receive counselling and mental health services before resuming.

   ·Enrolling A in the State education system would remove him from an environment where W School had arranged for a psychologist and teaching experts to engage with A.

   ·It was also submitted that, in so far as those experts were involved in A being referred to the Z program, his attendance at that program may be prejudiced if he changes schools.

   ·Finally it was submitted that enrolling the children at the X School would result in a situation where the father would be forced to engage in additional travel in the event that orders may be made for the children to live with or spend time with him and for the pick up or drop off point to be identified as the children’s school.

2. By way of summary, the mother’s contentions in response were:

   ·She did not unlawfully remove the children from their school.

   ·She is the primary carer of both A and V, who reside with her, and she was entitled to make the decision regarding their education.

   ·A was suspended from W School due to his inability to cope at the school.

   ·W School does not have the resources to provide for A’s needs.

   ·There is no guarantee that W School will accept A back into the mainstream Religious education system after attending the Z program which the mother understands will “…investigate the underlying problem associated with A’s behaviour.”[7]

   ·W School would only make a decision regarding A’s suitability for attending the school after he completes the Z program.

   ·There are advantages in A attending the mainstream State education system including the possibility of enrolling A in a specialist school within the State education system.

   ·It would be unfair to require the mother to enrol the children at W School in circumstances where re-enrolment would require the payment of an amount of $12 000 owing in outstanding school fees. This is in circumstances where the mother asserts that the father has, for approximately the last month, failed to pay child support.

   [7] Mother’s affidavit filed 17 February 2016 at paragraph 7(x).

3. By way of summary, the Independent Children’s Lawyer submitted that:

   ·It was inappropriate for the mother to unilaterally make the decision to change the children’s school.

   ·The relevant staff at W School and in the Religious education system are aware of the family’s circumstances and A’s circumstances specifically.

   ·W School has implemented a detailed program with a view to addressing A’s emotional, psychological and educational needs, and it would be contrary to his interests to remove him from that school in those circumstances.

   ·There can be no guarantee that similar resources would be made available to A and the family in the State education system.

   ·It is inaccurate to say that A had been suspended from W School. The correct interpretation of events is that the school indicated that they were not in a position to deal with A’s chronic needs and suggested that he receive home education at the same time as he receives assistance, counselling and other mental health services, including attending the Z program.

   ·The email from the Religious Education Office dated 18 February 2016, should not be construed as indicating that A has been suspended or expelled by the Religious education system.

   ·It could be anticipated that the Religious education system would re-enrol A and V upon outstanding fees being paid.

Contentions of the parties specific to V

1. Counsel for the father argued that it would be inappropriate for A and V to attend different schools, essentially, for the following reasons:

   ·It was desirable for siblings to attend the same school.

   ·It would present logistical difficulties for the mother having to take the children to and from two different schools that are located some distance apart.

   ·It would be difficult for the father to travel to the X School in the event that the school became the place of pick up or drop off if it is ordered or agreed that V would live with or spend time with him.

2. The Independent Children’s Lawyer also submitted that V should attend W School for the following reasons.

   ·It is desirable for the children to remain at the same school.

   ·The school is aware of the family’s circumstances which are also relevant to their ability to provide for V’s education.

   ·Logistically it would be extremely difficult for the mother to drop off V at X School and then travel some distance north to drop A off at W School.

3. The solicitor for the mother, on the other hand, argued that:

   ·V is well settled into X School.

   ·V has indicated that she enjoys the school grounds which are larger than W School and has larger grassed areas and more trees.

   ·She is attending school near her home and has a greater capacity to engage with children in her local area.

   ·The situation in respect to A is uncertain and, in particular, there has been difficulty in enrolling A and the family in the Z Program. Even if that were to occur, there is no guarantee as to what W School or the Religious Education Office will determine subsequent to A and the family attending that program.

   ·It would be unnecessarily disruptive of V’s education to require her to once again change schools back to W School in circumstances where it cannot be guaranteed that A will himself be returning to the school.

   ·A is currently in Year 6 and, in any event, would be leaving W School at the end of 2016.

   ·If the children continue to attend W School the mother will have the burden of private school fees in circumstances where the father has not, for at least the last month, paid child support.

Consideration

Orders made on 14 October 2015

1. The orders made on 14 October 2015 were in respect to the following issues:

   ·Live with arrangements;

   ·Time with and communication;

   ·Education;

   ·Parenting issues; and,

   ·Family therapy.

2. In respect to live with arrangements, time with and communication and education, the orders were as follows:

   Live with arrangements

   1. [A] born … 2004 (“[A]”) and V born … 2007 (“[V]”) are to live with the mother.

   2. [M] born … 2002 (“[M]”) is to continue to live with the father.

   Time with and communication

   3. The time [A] and [V] are to spend with the father is to be as agreed between the parents and in accordance with the recommendations of [Ms R], or such other Family Therapist as may be agreed between the parents and the Independent Children’s Lawyer.

   4. The time [M] is to spend with the mother shall be as follows:

   4.1. each alternate week from 3.00 pm (or after school) on Friday until 9.00 am (or before school) on the following Monday; and,

   4.2.1such additional time as is agreed between the parents in accordance with the recommendations of [Ms R] or such other Family Therapist as may be agreed between the parents and the Independent Children’s Lawyer.

   Education

   5. The mother and father are to each ensure that each child that lives with them attends school each day for the entire day. Should any of the children not attend school for the entire day, the resident parent is to provide to the non-resident parent and the Independent Children's Lawyer a medical certificate forthwith for that the child’s non-attendance at school on that day.

3. In my judgment delivered 14 October 2015, I indicated that:

   106. In light of the serious allegations of domestic violence that have been made in this matter, pursuant to section 61DA(3) of the Act, it is determined that  it is not appropriate, in the circumstances, for the presumption of equal shared parental responsibility to be applied in these interim proceedings.

   107. Accordingly, it is unnecessary to address the questions of the children spending equal or significant and substantial time with either or both parents, as contemplated by section 65DAA of the Act.

4. Section 65DAE provides that, unless otherwise specified in a relevant order, it is not necessary for the parent with whom a child is spending time to consult the other parent about issues that are not “major long-term issues”. A “child’s education (both current and future)” is, however, defined in section 4 of the Act as a major long-term issue.

5. The mother therefore should have consulted with the father prior to enrolling A and V in X School.

Section 60CC Factors

1. Section 60CA requires the Court to consider the best interests of a child when deciding whether to make a particular parenting order, this includes orders relating to which school a child should attend. It is to be noted that section 60CA refers to “the child” rather than the children. I am therefore required to consider the best interests of A and V separately and individually.

2. In Re G: Children’s Schooling (2000) FLC 93-025 at [66] the Full Court held that the object and principles in section 60B “are to be taken into account in the course of considering the relevant matters” that are now set out in section 60CC of the Act.

3. In addition, the Full Court noted at [65] that “the reality of the children residing predominantly with one parent” may be a relevant consideration. A further relevant consideration is which school is closer to the children’s residence (at [92]).

4. I have considered all of the matters referred to in section 60CC. Consistent with Banks & Banks,[8] I have focused primarily on those considerations that are most relevant including those referred to in Re G (supra).  

   [8] (2015) FLC 93-637 at 80,116.

5. I have considered that the primary considerations set out in section 60CC(2)(a) and (b) are relevant together with section 60CC(3)(f) which relates to  each of the parents’ capacity to provide for the physical, emotional and intellectual needs of each of the children. I have also had regard to section 60CC(3)(m) which enables the Court to have regard to any other fact or circumstance which the Court may consider relevant.

A

Section 60CC(2)(a) requires the Court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents.

1. Counsel for the father argued that a factor that the Court should consider in making an order for A and V to be re-enrolled at W School is that W School is closer to his place of residence. Requiring the children to be re-enrolled at W School would therefore facilitate his ability to travel to the school should the school be nominated as a place of changeover in circumstances where the Court may order that A and V live with or spend time with the father.

2. In that context, section 60CC(3)(e) is also relevant in so far as it requires the Court to have regard to the practical difficulty and expense of the children spending time with either parent.

3. This matter has been listed for final hearing commencing on 10 October 2016 for a period of five days. A central issue at final hearing will be the live with and spend time with arrangements in respect to all of the children. In addition, the father has also filed a further Application in a Case seeking interim parenting orders. Despite the Court expressing real concern regarding the frequency that the matter has been brought back to Court, that application is listed for interim hearing before me on 9 May 2016.

4. I recognise that it would be an additional impost on the father to require him to travel to W School and to X School in the event that orders are made for the children to live with or spend time with him on a final basis, and particularly where the children’s school may be nominated as a place of changeover. As noted, however, such live with and spend time with arrangements are matters to be considered by the Court at the final hearing.

5. Accordingly, the potential additional travel time that the father may incur should A and V, or either one of them, remain at X School has not been a significant factor in my determination of the appropriate orders to make in respect to the current application concerning A and V’s schooling.

Section 60CC(3)(f) requires the Court to consider the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs.

1. This subsection requires the Court to consider the capacity of each of the parents and any other person to provide for the physical, emotional, and intellectual needs of the children. In light of this provision and having regard to subsection 60CC(3)(m), which requires the Court to have regard to any other relevant fact or circumstance, it is appropriate to have regard to the capacity of each of the parents to constructively engage in the programmes offered by the schools to provide for the physical, emotional and intellectual needs of the children. Specifically in the case of A, an issue of fundamental importance is his mental health needs.

2. In that respect, I note that the principal of W School has acted responsibly and diligently in engaging the services of a psychologist, and other educational experts, to address the needs of A. As result of those efforts, W School has implemented a detailed Support Plan in respect to A’s mental health and behavioural needs.

3. Further, in the context of section 60CC(2)(b), I note that the Support Plan proposes a plan of action to identify and address the physical and psychological risks presently faced by A at school. In that respect the Support Plan refers to the behavioural effects of A’s anxiety and the difficulty this presents to the school in maintaining a safe environment for him:

   His behaviours of absconding from the classroom, defiance and oppositional behaviour which makes it very difficult for the school to provide a safe and appropriately supervised plan for him” and the he is a “flight risk”.

4. W School are clearly aware of the challenges faced by A which currently impact upon his schooling. The school has sought to address these challenges through implementation of the Support Plan. There was no evidence before the Court that would suggest that similar resources would be made available to A at X School. In this respect, I agree with the submissions of the Independent Children’s Lawyer that, in those circumstances, it would be contrary to A’s best interests to remove him from W School.

5. The diligence of W School in attempting to address the emotional, psychological and educational needs of A satisfies me that A should continue to be educated at W School if that can be arranged.

6. I will therefore make an appropriate order requiring the parties to take all necessary steps to effect the re-enrolment of A in the W School.

7. I acknowledge, however, that the ultimate decision as to whether A will be re-enrolled at W School will be made by the Religious Education Office in accordance with their policies and practices. As noted this is likely to include the Religious Education Office being satisfied that A has received appropriate intervention for his mental health and completing the Z Program. It could also be anticipated that the school will require  the payment of outstanding school fees before A is re-enrolled. The Court would expect that each of the parents will do all things necessary to comply with the Religious Education Office’s policies to facilitate A being re-enrolled at W School as soon as practicable.

V

1. The situation in respect to V’s schooling is difficult. Her school has been changed without the father being consulted and, on one view, the status quo of V being enrolled at W School should be restored. However, as was made clear in Goode & Goode, the Court’s focus is on the best interests of the child, which may not necessarily involve restoring the status quo.[9]

   [9] (2006) FLC 93-286 at 80,901-80,902.

2. These are interim proceedings and it is not possible for the Court to make findings of fact. Moreover, the Court is required to make a decision in respect to the A and V’s schooling without the benefit of expert evidence on the issue. Subsequent to the hearing of this matter the Court received a family report but, in the absence of agreement, I have not had regard to that report. In any event, the report does not address the issue of schooling.

3. The mother has asserted that V is happy and content at the X School and that V has expressed the view that she wishes to remain there. In circumstances where the Court does not have the benefit of expert evidence in respect to V’s wishes regarding her schooling, I am not prepared to make a finding that V wishes to remain at X School rather than return to W School.

4. As noted, the primary considerations set out in section 60CC(2)(b) require the Court, in considering the appropriate orders to make in a parenting matter, to have regard to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In that context, I note that the Support Plan, which has been developed in respect to A, under the heading “Presenting Difficulties”, reports:

   [A] is presenting to school in a distressed state daily, at times refusing to come to school or engage when he is at school. He arrives at school late daily because he refuses to get out of the car, therefore it is difficult to manage supervision via ‘meet and greet’. He is no longer responding to relational interventions provided by the teacher and staff.

5. It was assumed by all parties that, in the event of A and V both attending W School, they would be delivered to the school together. Of great concern is that V would be exposed to the distress suffered by A upon their arrival at school. She would also witness his reluctance to leave his mother’s car.

6. While the Court does not have expert evidence in respect to this matter, I am concerned that, given her age, being exposed that situation would be quite distressing and possibly traumatic to V. In circumstances where there is evidence that Ms Y, the Religious Education Office’s psychologist, believes that A is suffering from the effects of trauma I am not prepared, in these interim proceedings, to make orders that may place V at risk of also being exposed to possible trauma. To do so, would clearly be contrary to section 60CC(2)(b) of the Act and contrary to V’s best interests. Particular care needs to be taken to ensure that V is not exposed to a situation which may result in her also experiencing this same reluctance that her older brothers have to attending school.

7. I note that I have previously acknowledged that should final orders be made for the children to live with or spend time with the father, with changeover to occur at the children’s school, the father would incur additional travel if A and V, or either of them, remained enrolled at X School. As noted above, this is a relevant consideration in terms of sections  60CC(2)(a) and 60CC(3)(e).

8. In applying the primary considerations set out in section 60CC(2), however, section 60CC(2A)  requires the Court to give greater consideration to section 60CC(2)(b) which concerns with “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”

9. In circumstances where A appears to be suffering similar mental health and behavioural challenges to his older brother, M, I am not prepared to place V in a situation where she may be exposed to A’s distress when he arrives at school each day. I am concerned that doing so may place V at risk of psychological harm.

10. Further, in terms of any other relevant fact or circumstance (section 60CC(2)(m)), I note that this is A’s last year of primary school. Further, I note that it may be some weeks, and possibly months, before the outcome of the family’s enrolment with the Z program is known. Therefore, W School and/or the Religious Education Office may not be in a position to determine whether it is appropriate for A to return to W School for some time.

11. While I note the submission made on behalf of the father and the Independent Children’s Lawyer that A and V should attend the same school, I am reluctant to make an order that would disrupt V’s schooling part way into the school year in circumstances where A’s re-enrolment at W School is uncertain. It may be the case that A will not attend W School for several months and, should the Religious Education Office allow him to be re-enrolled, he may only then attend the school for a relatively short period of time.

12. Accordingly, on the basis of the evidence that is available in these interim proceedings, I am not prepared to make an order requiring V to attend W School as I am not satisfied that it would be in her best interests to do so.

Outstanding school fees

1. It was generally accepted by the parties that an impediment to A being re-enrolled in the Religious education system may be outstanding school fees in the sum of approximately $12 000. The father indicated that he was prepared to pay these fees on the basis that he would subsequently make an application to vary his child support obligations. There has been more than enough litigation involving this family and I am not prepared to accept the father’s undertaking to pay the school fees on the basis that he has proposed. I will, nonetheless, make the order that the parties do all things necessary to re-enrol A at W School conditional on the father paying the outstanding school fees. I impose this condition on the basis that it is the father who is seeking that A be re-enrolled at W School.

Orders

1. For all of the above reasons, I make the Orders as set out at the commencement of this judgment.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 8 April 2016.

Associate: 

Date: 8 April 2016