Marshall & Kilpatrick
[2022] FedCFamC1F 817
Federal Circuit and Family Court of Australia
(DIVISION 1)
Marshall & Kilpatrick [2022] FedCFamC1F 817
File number(s): SYC 5444 of 2013 Judgment of: SCHONELL J Date of judgment: 24 October 2022 Catchwords: FAMILY LAW – PARENTING – Schooling – Where the father sought for the children to attend to a private school – Where the parties had put the children’s names down for the private school since shortly after each child was born – Where the mother sought for the two children to go to a public school – Consideration of s 60CC primary and additional considerations – Where the mother’s evidence was inconsistent – Ordered that the children attend the private school. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC Cases cited: Bilz & Breugelman [2013] FamCA 578
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
McGregor & McGregor (2012) FLC 93-507; [2012] FamCAFC 69
Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76
Division: Division 1 First Instance Number of paragraphs: 113 Date of hearing: 14 October 2022 Place: Sydney Counsel for the Applicant: Ms Smallwood SC Counsel for the Applicant: Holmes Donnelly & Co Solicitors Counsel for the Respondent: Mr Wilson Solicitor for the Respondent: Russell Kennedy Lawyers ORDERS
SYC 5444 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MARSHALL
Applicant
AND: MS KILPATRICK
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SCHONELL J
DATE OF ORDER:
24 OCTOBER 2022
THE COURT ORDERS THAT:
1.Both parties do all acts and things necessary to ensure Y born 2010 (“Y”) attends B School (“B School”) commencing in year 7 in 2023 and are restrained from:
1.1doing any act or thing to enrol him in any other school without the prior express agreement of the other parent.
1.2doing any act or thing to withdraw Y’s enrolment from B School.
2.Both parties shall be restrained from doing any act or thing or encouraging or inducing any act or thing to prevent or interfere with Y’s enrolment at B School.
3.Both parties do all acts and things necessary to ensure Z born 2011 (“Z”) attends B School (“B School”) commencing in year 7 in 2024 and are restrained from:
3.1doing any act or thing to enrol him in any other school without the prior express agreement of the other parent.
3.2doing any act or thing to withdraw Z’s enrolment from B School.
4.Both parties shall be restrained from doing any act or thing or encouraging or inducing any act or thing to prevent or interfere with Z’s enrolment at B School.
5.Both the respondent mother and the applicant father shall ensure that the children attend all school sporting events and other activities that the children are required by the school to attend including on weekends and during school holiday periods.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Marshall & Kilpatrick has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
By Application in a Proceeding filed 31 August 2022, the applicant father (“the father”) seeks orders to enrol his sons Y and Z at B School (“B School”). The enrolment in the case of Y is for him to commence Year 7 in 2023 and in the case of Z for him to commence Year 7 in 2024.
The mother’s Response filed 7 October 2022 seeks a dismissal of the father’s application and seeks that the parties do all acts and things to enrol both children at C School.
The current application is to be seen in the context of wider proceedings between the parties in relation to their children. In that respect, the parties have been involved, it would appear, in litigation about their children since late 2013.
There are three children of their relationship: X born 2008, Y born 2010 and Z born 2011. The children are currently aged 14, 12 and 10 years. X attends C School and the circumstances surrounding his enrolment will be addressed later in these reasons. Y and Z are currently at D School. They respectively start high school next year and the year after.
As it is relevant to some of the arguments advanced, it is an agreed fact that B School is a boys-only private school, whereas E School is a co-educational private school. C School is a co-educational high school.
The father relied upon the following documents:
(1)Application in a Proceeding filed 30 August 2022;
(2)Affidavit of father filed 30 August 2022;
(3)Case Outline document filed 7 October 2022;
(4)Report of Dr F dated 18 June 2020; and
(5)Tender Bundle.
The mother for her part relied upon the following documents:
(1)Response to Application in a Proceeding filed 7 October 2022;
(2)Affidavit of mother filed 19 September 2022;
(3)Case Outline document filed 7 October 2022; and
(4)Report of Dr F dated 18 June 2020.
The father’s submissions
The father contends that the parties had an agreement that they entered into shortly after each of the children were born, being that the children would attend B School. To provide greater choice for the children, he says they also enrolled the children at E School. The father says that the mother did not communicate to him that she was opposed to the boys attending B School until mid-2018. He says that the mother has subsequent to that event attempted to frustrate the children’s attendance at the school by unilaterally informing both B School and E School that she did not agree to the children attending. He says that whilst X attends C School, it is not his intention to change X’s enrolment. The father says that X’s is not doing well at C School and that B School has an excellent arts program that is available to each of the boys should they go to that school.
The father says that B School is an excellent educational facility and that based on the Higher School Certificate (“HSC”) results for 2021, B School was ranked … in New South Wales whilst C School was ranked …. He says that the teaching facilities and approach to achievement at B School are likely to motivate and encourage the children more than there would be the case at C School. He points to X’s performance at school as indicative of a difference between the two schools. He describes Z as sport mad and says that B School offers an opportunity for Z to partake in sport and all of the various opportunities that exist at B School which do not exist at C School. He says that B School is also well equipped to cater for Y’s interest in art and that B School has an extensive visual arts facility with visual arts being compulsory for all students in Year 7 and 8.
The father submits that he lives adjacent to B School and that travel will be involved irrespective of which school the children attend. He submits that the travel is not so great as to be burdensome.
The mother’s submissions
The mother contends that she has always wanted the children to go to a co-educational school and that at the time she enrolled the children at B School, she did not know much about the schools. She says she does not want the children attending different high schools and says that she has told the father on many occasions “the boys are a package deal, it is vitally important that they have shared experiences in life” (mother’s affidavit, paragraph 41). She says that each of the children have said to her that they do not want to go to B School as they have no friends there.
She says that because X is already at C School then all the boys should attend that school. She submits that the travel burden falls upon her as the children spend more time in her care and therefore as C School is closer to her home that is a reason for them to attend that school. The mother also submits that there will be an adverse effect on X if the boys go to separate schools particularly in circumstances where she says he already feels inferior in his father’s eyes and there may be a consequential adverse effect on his relationship with his father.
She submits that she is ideologically opposed to private schools and single sex schools. She says that she has a concern that B School is elitist and that the boys will be exposed to attitudes that are derogatory of women if they attend B School.
The evidence
In circumstances where the parties were asking the Court to make a final order, I permitted cross-examination.
The mother, albeit represented by counsel, declined the opportunity to cross-examine the father. The mother in her affidavit elected to specifically respond to certain paragraphs in the father’s affidavit. Where there was no direct challenge to the father’s evidence by cross-examination or by denial in the mother’s affidavit, I accept his evidence.
The mother was cross-examined by senior counsel for the father. There were aspects of her cross-examination which put in issue some of the reasons she advanced as to why the children should attend C School and not attend B School. I found some of the mother’s evidence as to her reasons in support of or against each school inconsistent with her past actions.
The mother said at paragraph 32 of her affidavit that her preference had always been for the children to attend a co-educational school as opposed to a single sex school. Such preference, as was pointed out in cross-examination, was inconsistent with the maintenance of a place for the boys at B School being a single-sex school.
The mother was cross-examined about a text message that she sent the father in 2019 to the following effect:
… There’s an open day at [G School] at 9.30am tomorrow – it’s meant to be an excellent school top […] in the State and somewhere the boys could potentially go so it will be good if you can make it. Thanks
(Exhibit 2, page 70)
G School is, as the name suggests, a boys only school. The mother’s suggestion of it as an option for enrolment of the boys stands in stark contrast with her assertion that it has always been her preference for the children to attend a co-educational school.
The mother in her affidavit contended:
74. According to the sporting schedule from [B School] it is compulsory for the boys to be enrolled in a minimum of seven sports each term…
The mother’s evidence about the number of sports that the children had to attend in each school term was presented in her evidence in support of the argument that the children should not attend B School. The mother conceded in cross-examination that the boys did not have to attend seven sports in each term and that she did not actually know what the sporting requirements were. When taken to the schedule of sporting activities available to Z who she agreed in cross-examination was sport mad, it was proposed to her, “do you agree he would enjoy the selection of sport at school?” to which the mother responded, “I would have to look at the curriculum.” Such statement suggests that she has not read the curriculum. Any criticism she makes of the schools programme and what it offers is clearly uninformed by what the school actually provides. It raises a concern that the mother was attempting to make any assertion accurate or otherwise in support of a proposition that the children should not have to attend B School.
The mother says in her affidavit:
79. … The children have never expressed a desire to be enrolled in the Army or cadets. I consider myself to be a pacifist and I am uncomfortable with the children being enrolled in army cadets while they are minors.
Whilst the children might have never expressed a desire to be enrolled in the army or cadets, it is not suggested that they would be opposed to doing cadets. Part of the father’s tender bundle contains a photograph said to be taken in late 2020 of Y dressed in camouflage clothing, holding a rifle. In relation to the assertion that she is a pacifist, the mother was cross-examined about the boys playing a game called “Fortnite”, which she agreed was a violent shooting game. She agreed that at least Y and X played the game. It was suggested to her that maintaining a position as a pacifist was inconsistent with providing the children with a violent shooting game. The mother agreed with the proposition but indicated that she did not think that she had purchased the game. I also note the mother informed Dr F that one of X’s favourite games was Fortnite. I accept that both Y and X have played a violent shooting game.
The mother was also cross-examined about her pacifist views and in particular about references in Dr F’ report to various police records that record the following:
I note an Event dated [late 2001] in relation to an incident at a hotel. It appears that their security contacted the police. [Ms Kilpatrick] was recorded as causing problems and being highly intoxicated. She was asked to leave, and she became aggressive and slapped the security officer four times. She was restrained and taken outside the property. … I note an Event dated [late 2004]. [Ms Kilpatrick] apparently approached the police in relation to an alleged assault. The police record that she appeared to be well affected by alcohol … This allegedly led to a physical confrontation and the other party alleged that [Ms Kilpatrick] threw a punch at her. It is noted that there were no witnesses and that the police found it difficult to obtain an account from [Ms Kilpatrick] due to her level of intoxication. [Ms Kilpatrick] later contacted the police to say she did not wish any further action to be taken. I note an Event dated [early 2006]. It appeared that [Ms Kilpatrick] was noted by police to be moderately intoxicated when they attended an assault at a hotel. It appears that a person accompanying her was asked to leave due to her level of intoxication and [Ms Kilpatrick] took offence and threw a glass of champagne, presumably at security staff. She was then grabbed and it was alleged that the force used had been excessive and unnecessary. Whilst on the ground she began to kick and hit the other parties. …
(Report of Dr F, page 7)
It was suggested to her that in light of these events, pacifism is not something that she was committed to. The mother denied such assertion.
The mother in her affidavit says the following:
64. I have asked [Mr Marshall] not to discuss schooling with the children while we work things out. However, he has insisted upon discussing [B School] with the children. The boys have said to me on a number of occasions after spending time with [Mr Marshall] “Dad said he will buy me any car I like if I go to [B School].”
I note, however, that the mother’s views about what is inappropriate for the father to do is inconsistent with her own behaviour. In her affidavit, she says:
56. [Y] is completing year 6 this year and has said to me words to the effect of “If I don’t go to [B School] Dad will be sad… and if I don’t go to [C School] you will be sad”. I responded “That’s not true [Y]. We just want what is best for you. Where would you want to go to school?” [Y] responded “I want to go to [C School] and do the Art Program like [X]. None of my friends are going to [B School] but some are going to [C School].” [Z] also said “I want to go to [C School] too”. [Z] has other abilities, including sport and maths, and [C School] has academic extension programs available to foster his abilities.
Her counsel prepared a Case Outline that contented “the mother has an ideological opposition to private schools in general and same sex schools in particular” (at paragraph 4). Such assertion, I accept, would have been made in accordance with the mother’s instructions. Such assertion is emblematic of the problem I have with much of the mother’s evidence. Her “ideological opposition to private schools” is inconsistent with her past conduct. In particular, I note Dr F’ records in his report “[s]he wants them to continue to attend either government schools or perhaps [E School], which accepts both boys and girls” (at page 14). Her position in relation to single sex schools is inconsistent with her suggestions about G School as an option for the boys.
Arising from the mother’s cross-examination, I conclude that the mother was prepared in some instances to say anything no matter how inconsistent with her past behaviour as a reason why the boys should not attend B School. Such inconsistencies call into question how strongly held some of her stated reasons are. I am left with the impression that much of the mother’s opposition to the children attending B School is but part of the wider conflict between the parties. Some insight to this is provided in some of the statements made by the mother to Dr F.
Background facts
The parties commenced cohabitation in 2003 and were married in early 2005.
The mother says the parties separated in October 2013, whilst the father says they separated on a final basis in June 2013. Nothing turns on the date of separation.
The father says in his affidavit:
37. Early in our relationship, [Ms Kilpatrick] and I discussed schooling. I said to [Ms Kilpatrick]:
“If we have boys, I'd like for them to attend [B School] (for secondary school) if possible.”
During our discussion, [Ms Kilpatrick] said “I agree”.
The mother in her affidavit denied this conversation.
Following the birth of each of the children, their names were placed on a list for them to attend B School. The mother agreed in cross-examination that in the case of X, this occurred approximately four months after he was born. She said that at the time she knew little about the school. The mother agreed that in relation to each of the subsequent children they also were placed on a list shortly after they were born. The mother agreed that she signed the forms for each of the children to attend B School. Each of the boys were also placed on a list to attend E School.
The father also says in his affidavit:
40. Throughout our relationship [Ms Kilpatrick] often remarked to me:
“I’m the one who secured [Y's] place at [B School]. You remember I personally spoke with the Registrar's office and came to an understanding with them”.
The mother has elected not to respond to this paragraph. I accept the father’s evidence.
On 18 September 2013, the mother commenced proceedings. On 30 September 2014, orders were made by consent in relation to both financial and parenting matters that recorded that the parties had equal shared parental responsibility, that the children live with their mother and that they spend time with their father on a graduated basis that culminated in five nights.
On 29 September 2014, the parties entered into a Child Support Agreement that provided for the father to meet the cost of school expenses including school fees. In my view, it is open to infer that such a provision was consistent with the parties’ earlier agreement that their children would attend fee paying schools.
In December 2016, the father commenced proceedings seeking discrete orders permitting the children to travel overseas. The father says that the mother by response sought to vary the orders that the parties had entered into in 2014.
In late 2017, the father purchased a home at Suburb H which shares a back fence with B School.
On 11 April 2018, orders were made that in essence provided for the parties to retain shared parental responsibility, for the children to live with the mother and spend time with the father for five nights a fortnight.
The father says in his affidavit:
43. On or about mid 2018 [Ms Kilpatrick] moved from her home in [Suburb J] to the [Suburb K] property. Following the move, [in mid-2018], [Ms Kilpatrick] sent me a text message that she no longer agreed for the children to attend [B School], or private school and “the boys can go to a good state school”.
The mother in cross-examination agreed that it was only after the father purchased his home that she advised him that she did not want the boys to go to B School. The father’s counsel suggested to the mother in the following terms:
Your adverse response to [B School] only came into being after the husband commenced living next door to [B School].
The mother answered by saying:
There is a correlation but that’s not the reason. I moved in [the first part] of that year as well.
It was established in cross-examination that the first notice the mother gave the father that she no longer agreed to the children attending B School and wanted them to go to public schools was in mid-2018.
Notwithstanding orders that the parties’ share parental responsibility, it is apparent that in or about late 2019, the mother unilaterally contacted B School and arranged for cancellation of the children’s enrolments. The mother agreed during the course of her cross-examination that this was not something that she had consulted the father about before making such a decision.
The father says that he then had a conversation with B School to put the boys back on the list. He says he was informed at that time that X was about a third of the way down the waiting list, that there were about 100 boys in front of him, and that there was a reasonable chance that he might get a place but he would not know until the end of 2020. The school advised that Y’s place was confirmed and that Z’s place was not yet confirmed but he would be given priority when Y started at the school.
The father says that in mid-2019, in an endeavour to try and resolve the impasse, he proposed mediation. He says the mother did not agree to attend mediation.
The father says that in mid-2019, he received an email from E School. His affidavit records the following:
77. [In mid-2019] at 8:37am I received an email from the Registrar at [E School] which advised “...We have been advised by [Ms Kilpatrick] to remove [Y] and [X] from the Year 7 waiting lists.”
78. I urgently contacted [E School], to communicate my desire that all of [X], [Y] and [Z] remain on the lists for possible schooling at [E School]. In particular I asked that [E School] “... leave [X] on the waiting list with a view to potentially commencing in Year 7 in 2021 ...”
79. [E School] subsequently wrote to me and confirmed my request had been actioned.
None of this was the subject of challenge in the mother’s affidavit. I accept the father’s evidence. The mother did not consult the father prior to informing E School that Y and X were to be removed from their enrolment waiting lists.
The father says:
80. [In mid-2019] I received a letter from the school, sent via email, “Confirming cancellation of (my) application for [Z] for 2022 Year 5’.
81. The letter advised “Thank you for notifying us that [Z] for 2022 Year 5 will no longer be coming to [E School]. The application has now been cancelled.”
82. I immediately contacted the school to ascertain why [Z’s]application had been cancelled and reiterate my position that he remain on the waiting list. I was advised over the phone the reason[Z’s] application had been cancelled was that [Ms Kilpatrick], when completing a survey for the school, selected the option “we wish to cancel the application”.
The father says that ultimately the boys’ places at E School were reinstalled.
The mother’s actions were again unilateral.
In light of the unresolved position of a place for X at a school, the father says that he wrote to the mother in late 2019 to enquire as to her proposals for where X should attend high school. He says that by the end of a late date in 2019, he still had not got a commitment from the mother in relation to what school she wished X to go to. The father proposed that if the mother was not agreeable to B School then he would be agreeable to X attending E School.
The father says that in early 2020, the mother moved from her then residence at Suburb K to rental accommodation at Suburb L. He says:
52. The purpose of [Ms Kilpatrick’s] move is unclear, however I suspect it was to ensure [X] would be offered a position at [C School] as the [Suburb L] rental accommodation was in the [C School] catchment area.
The mother elected not to respond to this paragraph.
On 10 March 2020, the mother commenced further proceedings in relation to the children. She sought initially that the father’s time be supervised contending that the children were at risk in his care. The father says that on 24 March 2020, orders were made suspending the children’s time with him and imposing supervision. The parties jointly instructed Dr F to prepare an expert report and that report was released to the parties on 25 June 2020. That report recommended a resumption in the children’s time with the father.
Dr F records in his report, in relation to attendance at B School, the mother saying:
… She told me that she had long resisted this proposal. She said she does not want the boys to attend on an all-boys school, and also that [B School] is elitist and it has a (paramilitary) focus. She said that [E School] had been a compromise, but if I understood her correctly, an application for [X] to attend there had already been unsuccessful. She added that [Mr Marshall] always puts strings on everything, by which I understood her to mean conditions and consequences. In relation to [B School], she feared that he would “lord it over the boys” in such a way to leave her feeling that she had to pay for half the fees in order that the [Mr Marshall] could not take all the credit for her attending there.
(Report of Dr F, page 12)
The father says that it was not until mid-2020 that the mother committed to a position as to where X was to go to school, proposing that he attend C School.
On 13 August 2020, orders were made for the children to spend time with the father for five nights a fortnight and half school holidays. That remains the current arrangement in relation to the children in that they spend time with the father in a block from Thursday after school until Monday before school in Week 1 and from Thursday after school until Friday in the other week as well as half school holidays.
The father says:
54. [In late 2020] I received correspondence from [B School] inviting the completion of an "Expression of Interest" regarding [X] by late 2021 for a place at [B School] in year 7 commencing 2021. The letter noted "All submissions will be reviewed and a shortlist of students invited to attend an interview with our Deputy Headmaster and Registrar".
55. [The next day] [Ms Kilpatrick] sent an email to [B School] insinuating that she was not interested in [X] attending [B School].
56. [Two days later] I forwarded an email to [Ms Kilpatrick] advising I intended to complete the application for the possible interview and requesting information and documents from her to assist in this process.
57. [The next day] [Ms Kilpatrick] responded "I am happy to facilitate the interview process for [X] at [B School]. I will get together some of the documents thy have requested and I will send them to you as soon as I can".
58. [Over four days in late 2020], I sent several emails to [Ms Kilpatrick] requesting the provision of documents in support for the Expression of Interest for [B School]. Ms Ultimately [Ms Kilpatrick] failed to provide the documents requested and, after waiting, I was forced to submit the Expression of Interest at 9:16pm in late 2020.
59. [A day later in 2020], I received an email from [B School] advising “[X] has not been shortlisted to proceed to interview”. I consider the decision not to offer [X] an interview would most likely have been influenced by [Ms Kilpatrick's] conduct, both in her contact with the school to have the names of the children removed from the [B School] school's register and in failing to provide documentation, including awards and information about [X's] scholastic achievements for inclusion in his interview process.
The father contends says that X was subsequently enrolled and began attending C School in January 2021.
The father says that in early 2021, he received an email confirming Y’s placement at B School commencing in January 2023.
The father says that in early 2021, the mother sent an email to B School in which he was copied which included the following terms:
64. …
“Hi I think this must be a mistake? As I haven’t enrolled any of my sons in your school? Please can you confirm what is going on?”
In light of the mother’s concession that each of the boys had been enrolled at birth and she had signed the forms, the mother’s correspondence with the school was to say the least disingenuous.
APPLICABLE LAW
Parenting matters are governed by Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60CA of the Act mandates that the best interests of a child are the paramount consideration. The objects of the Act are identified in s 60B, which sets out not only the objects of the Act but the principles to be applied.
The best interests of a child are determined by an examination of the factors as set out in s 60CC of the Act. Section 60CC(2) sets out the primary considerations in determining what is in the child’s best interests.
In applying these considerations, the Court is to give greater weight to the consideration set out in s 60CC(2)(b).
Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. Those considerations will be discussed further below.
In Mulvany & Lane (2009) FLC 93-404, May and Thackray JJ stated:
76.It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
77.It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…
(Emphasis in original)
In reaching my decision, I have considered all of the relevant sections of the Act, albeit that I am not required as a matter of law to specifically address each such consideration.
There is no matter that arises within the rubric of the primary considerations that calls for consideration. The issue of meaningful relationships is not in play and it is not suggested that there are matters of risk that are relevant to the determination that I am required to make.
In Bilz & Breugelman [2013] FamCA 578, Austin J in an examination of the relevant authorities set out some of the applicable principles as follows:
81.Schooling disputes are not resolved by application of a “blanket presumption” or preference for the views held by the residential parent (Re G at [29], [45], [65]). The Court is required to apply the objects and principles of Part VII of the Act and to consider the statutory criteria in forming conclusions about the child’s best interests (Re G at [66]-[68]).
82.That is probably self-evident, but other more generalised observations were made by the Full Court. In particular, the process of evaluation should not entail an assessment of the relative merits of the schools preferred by the parties, at least in circumstances where the competing schools are prima facie satisfactory (Re G at [91]-[92]). Ordinarily, it will be in the child’s best interests to attend a school close to his or her residence, and further, it is proper to consider evidence as to any greater effect of the decision upon the resident rather than non-resident parent (Re G at [92]-[93]), but that does not mean the convenience of the non-resident parent is ignored (Eden-Proust at [56]-[63]). While the views of the child are relevant to the inquiry, as s 60CC(3)(a) of the Act now stipulates, those views are usually not determinative. That is because, unless a child is actively unhappy in a particular school environment, it is not at all unusual for the child to express a desire to remain at his or her existing school (see Re G at [96]).
83.There is conflict in the authorities about whether any prior agreement between the parties concerning the child’s schooling is influential (see Re G at [92]; Eden-Proust at [48]). There also seems a difference of opinion about the need to refer specifically to each of the factors enumerated in s 60CC or whether it is permissible to simply analyse the evidence discursively with those factors in mind (see Re G at [67]-[90]; Eden-Proust at [69]).
Each of the parties sought by their evidence to persuade as to the relative merits of their chosen school. On the part of the mother, she contends that C School has a great reputation in the community and that it provides many opportunities for the children. The father for his part contends that B School offers a well-rounded curriculum and an opportunity for the children to do well academically as well as a vast number of extra-curricular activities. In relation to each of the two schools, the father points to B School being ranked … in New South Wales in the HSC results for 2021 whilst C School was ranked …. I note the caution urged by courts against engaging in an assessment of the merits of each school. I am satisfied that each of the schools offer education benefits to the children.
The mother in her affidavit sought to suggest that Y is not particularly interested in sport but that Z plays football and has not expressed an interest to be enrolled in any additional sports or extra-curricular activities. The father suggests that both Y and Z are athletic and enjoy sport and other physical activity. He says that Y decided not to play football in 2023 but has played weekend football for a number of years. The father says that he participates in a five-kilometre park run and has completed 24 of these events. In relation to Z, he suggests that Z has a fixation on sport and is an avid follower in particular of various football codes. In relation to Z he says the following:
102. [Z] is "sport mad" from a physical sense too. He is fit and strong, skilful and very competitive. I believe he will thrive in a school that supports sport. In 2022 [Z] played in a [football] team for […] (a season in which he scored […] goals and his team was undefeated in roster games), represents his school in various sports including [various sports] and is always striving to do more sport. On the weekends he also participates in […] and, despite being 10 years old, has a personal best time of […] — almost two minutes faster than [Y]. In [mid-2022] he completed his first […], a […] community running event, in […] minutes.
Conscious of the caution against being drawn into a debate of the merits of each school, in circumstances where the parents each acknowledge that Z is sport mad some consideration of his best interests involves an assessment of the evidence. In that respect, the evidence reveals that there is an extensive range of sporting opportunities available at B School as set out in Annexure G of the mother’s affidavit and at paragraph 31 of the father’s affidavit. The mother does not provide evidence that such range of sporting opportunities is available at C School. For a ‘sport mad’ child such as Z the sporting opportunities at B School could be to his benefit.
The mother sought to present the B School school as elitist. In her affidavit, she contended:
92.As well as my opposition to single sex schools for boys I am concerned about the negative media attention [B School] receives and the arrogant, condescending and aggressive attitudes that the students exhibit.
The mother submitted that she fears the boys will be amongst other things exposed to derogatory attitudes to women if they go to B School. The mother in support of such contentions referenced a number of articles extracted from various media publications.
In McGregor & McGregor (2012) FLC 93-507, the Full Court considered the use of extrinsic material and observed that:
77.Section 48 of the Evidence Act allows a party to adduce evidence of the contents of a document by tendering the document. The document will often contain representations. To the extent that those representations constitute hearsay, s 69ZT(1) of the Act eliminates the hearsay rule in children’s proceedings, but untested previous representations in a document may be given little weight.
(Emphasis added)
In circumstances where the evidence is undoubtedly hearsay, the origin of some of the assertions is unclear and the makers of the statements are not available for cross-examination, I place no weight upon them. The mother does not identify another source for her assertion that students at B School exhibit “an arrogant, condescending and aggressive attitude”. I am unable to find as urged by the mother that students at B School exhibit an arrogant, condescending and aggressive attitude or that the boys will, if they go to such a school, be exposed to derogatory attitudes to women.
I propose to now address the additional considerations such as are relevant.
(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
The children are aged 12 and 10.
In Bondelmonte v Bondelmonte (2017) 259 CLR 662, the High Court stated:
34.In some cases, it may be right, in the exercise of a primary judge's discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child's best interests.
35.... whilst a child's views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child's age or maturity and level of understanding of what is involved in the choice they have expressed.
Each of the parties sought to give evidence as to the views of the children. The father for his part identifies that Y has said that he would like to see the art facilities at B School and that he liked the uniform albeit he did not like the hat. In his affidavit, he identifies that Z has said to him, “[C School] does suck a lot in relation to team sport in that you can only really play […] and there is […]” (at paragraph 106) and, further, that Z had indicated that a number of his friends were going to private schools. The mother for her part contends that each of the children have indicated to her that they would prefer to go to C School.
It appears to me, that an inference is available that these children are, in this highly conflictual relationship, telling each parent what they may want to hear. The mother’s counsel agreed that such an inference was open on the evidence. In particular, I note an email from the mother to the father in late 2020, which contains the following assertion:
I think that [X] is caught in this bind because he knows that you want him to go to [B School] so he is telling you one thing. Perhaps he is doing the same with me and telling me what he thinks I want to hear.
(Mother’s affidavit, Annexure E)
I am conscious of the ages of these children and that some weight ordinarily can be given to their views. However, in light of the competing evidence as to the views of the children, the view expressed by the mother in the correspondence referred to above together with the absence of any objective expert evidence, I can do no more than record that each of the parents contend that Y and Z have both at various times expressed views supportive of each other’s respective position.
(b) The nature of the child’s relationship with each of the parents and other persons
No submission was put to me that this was a relevant consideration.
(c) Extent to which each of the parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; spend time with the child; and communicate with the child
No submission was put to me that this was a relevant consideration.
(ca) Extent to which each of the parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
No submission was put to me that this was a relevant consideration. I note that it is intended that the father will meet the costs of schooling at whichever school the children are enrolled.
(d) Likely effects of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The mother submitted the following in relation to this consideration
10. There is a significant concern that if [Y] and [Z] attend [B School] there will be an adverse impact on [X’s] wellbeing. Already [X] sees himself as somewhat inferior in the Father’s eyes. It is a concern that if [Y] and [Z] attend [B School] then [X] will consider there to be an even greater chasm of inferiority between [X] and his brothers in the Father’s eye. It follows that there is a concern that [X’s] relationship with the Father may be adversely affected.
To make good this submission there would need to be some evidence to support it. I was not taken to any specific paragraphs. In the mother’s affidavit, she says:
51. [X] was enrolled in [C School] and offered a spot in the Art extension program commencing at [C School] in 2021.
52. [X] had a difficult start to 2021 with the majority of his schooling year being in lock down due to the pandemic. It was a difficult transition for all of us while I home-schooled the three children via Zoom and worked full time.
…
54. [X] has a lot of friends at [C School] and is happy there. He has just chosen his electives for year 9 and 10. When [X] was selecting his subjects there was an open evening via Zoom we participated together. Afterwards, he said to me words to the effect of “I really want to do History, Woodwork and STEM (Science Technology Engineering and Mathematics)”. After spending time with [Mr Marshall] over the weekend, [X] returned and said to me words to the effect of “I am going to pick Commerce and Woodwork (as well as STEM) as electives now.” I am concerned that [X] changed his electives to please [Mr Marshall]. However, I accepted [X’s] change and chose them via the website without asking [X] many questions about his decision.
…
65. Since [X] has been enrolled at [C School], he often returns home from spending time with [Mr Marshall] saying words to the effect of “Nothing I do is ever good enough for Dad.” and “Dad doesn’t like my school. He said people do drugs there and [B School] is better.”
66. After [X] received his half yearly report this year he became anxious and said “I was scared all weekend that Dad would find my report in my bag.” [X’s] report had many positive comments from his teachers and he is a well-liked and kind boy. However, his marks could improve.
67. I am concerned of the negative impact on [X] that all the denigration of his performance and of his school in general is having. Last week [X] became so anxious and was awake until after 11:00pm at night and complained of a headache the following morning. [X] remained home from school the following day.
The paragraphs, excluding those which are purely submission as opposed to evidence, do not support the submission. There is no evidence that if Y and Z attend B School there will be an adverse effect on X’s wellbeing. There is no evidence that X feels that he is inferior when compared to his brothers in the eyes of his father.
X’s assertion as reported by the mother at paragraph 65 of her affidavit is without context and I would be cautious in finding that it supports the submission in the absence of some expert evidence. In that respect, I am mindful of the conclusion I reached in relation to the children’s views and the concession made by the mother and by the mother’s counsel that the boys could be telling each parent what they perceive that parent wants to hear.
As to the matters in paragraph 66 of her affidavit, the mother acknowledges that X’s marks could improve.
(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The mother’s counsel submitted:
8. As [Y] and [Z] live with the Mother the time taken each day for her to get them [B School] and back would be significant (amounting to several hours a day), as well as ensuring that they get to and from compulsory sporting events on the weekend. This extra time would erode the time the children might otherwise spend with the Mother, their brother or engaging in other meaningful activities.
9. The extra travel and sport oriented time when compounded with the Mother’s obligations to get [X] to and from school and other events would also have a significant adverse effect on the Mother’s work and her income ability.
I accept the mother’s evidence that she currently drives the children to school and in circumstances of the current living arrangements of the children, that in the event that she continued to drive the children to school, then the burden (if it be such) of travel would fall more upon her than on the father given where he lives. I accept the evidence is that C School is closer to her home than B School.
The mother currently drives the boys to school. She says she drops X at C School and then travels onto D School to drop off Y and Z. She says she arrives there at about 8.00 am. The father says that it is a further seven minute drive from D School to B School. There is no evidence by the mother that it takes longer.
The mother’s evidence at paragraphs 88 and 90 of her affidavit appears in conflict with each other. At paragraph 88, she says the round trip is an hour whilst at paragraph 90, she says its two hours. It is not explained why it is that she would travel first to B School at Suburb H then go back to C School and then back to D School, particularly where she gives evidence that she currently drops off X first at C School before proceeding to D School.
I also note that the mother contends that whilst the children are in the father’s care that X travels by public transport to school from D School in the morning and returns to the father’s home by public transport.
The mother also submits that sport on the weekend would erode into her time with the children in that she would be required to travel. In that respect, the mother identifies in her affidavit that the B School playing fields are located in a number of locations in Sydney. I note, however, the mother’s evidence in relation to Z is to the following effect:
73. [Z] plays [football and currently has [football] training on […] evenings and games at the weekend. The [football] games take place at various venues including locally and further north ([Suburb M] for example)...
There is clearly already travel involved with the boys attending public schools. The submission that the obligation to get the children to school or extracurricular activities would have an effect on the mother’s income or earning ability is devoid of evidence that would enable a proper assessment of the submission and is just speculative. She gives evidence that she collects the children from school at 4.00 pm. If there are extracurricular activities that extend beyond that time then she will presumably have more hours available to work rather than less.
The mother’s submissions also ignore the availability of public transport.
I am not satisfied that the amount of travel is that onerous or burdensome as to amount to a reason why the boys should not attend B School or should attend C School.
(f) 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
No submission was put to me that this was a relevant consideration.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
The mother’s counsel submitted as follows:
11. The Mother attended government run schools. She has strong preference for government runs schools and strong opposition to single sex schools. [Y] and [Z] still attend a government run primary school. [Y] and [Z] started living with the Mother only in about 2013 when they were about two and one respectively. Their day to day life has always been one where their mother, a woman, is the head of the home. [Y] is 12 years of age and [Z] is almost 11 years. As pre-pubescent boys they are psychologically and emotionally vulnerable. It is a concern that attending an all-boy’s school, particularly one with a reputation where students exhibit misogynistic behaviour and army cadets is […], would adversely affect the running of the family home and undermine the values the mother exhibits to them.
I have already addressed what I regard as an inconsistency between what the mother states in her affidavit and submissions and other evidence. I have also addressed the submission in respect of army cadets and the mother’s view that the school has a particular reputation.
(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child's right to enjoy his or her culture; and the likely impact any proposed parenting order under this Part will have on that right
This is not contented to be a relevant consideration.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
I have addressed this issue above in the context of the mother’s unilateral conduct in cancelling enrolments. There is no other matter that is relevant as a consideration under this subsection.
(j) Any family violence involving the child or a member of the child's family;
This is not contented to be a relevant consideration.
(k) Any relevant inferences that can be drawn from a family violence order, if it applies
There is no family violence order in place.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Ordinarily it is in the best interests of children that an order be made that would be one that is least likely lead to the institution of further proceedings. I have no confidence in light of the litigation that has ensued in the nearly decade since separation that any order I make will achieve this aspiration.
(m) Any other fact or circumstance that the court thinks is relevant.
The mother contends that neither of the parties practise Christianity and that the children have not been brought up with a religion. She identifies that B School is a Christian school. Notwithstanding this submission, each of the parties at one point in time enrolled both of the children at B School and E School and maintained their position in relation to those schools until the mother communicated her change in mid-2018. I do not regard this as relevant consideration.
The mother contends that she does not want the children attending different schools. She says that she has said to the father on many occasions, “the boys are a package deal. It is vitally important that they have shared experiences in life”, and she says, “[t]his is my view in relation to all experiences for the children including schooling” (mother’s affidavit, paragraph 41).
While that might be the mother’s expressed view, it is not the father’s. There is no presumption in favour of one parent over another. I also note that even on the mother’s evidence the boys have different interests and experiences. In that respect, the mother says that X has no interest in sport but conceded in cross-examination that Z is sport mad. In that respect, they are not therefore having the same experiences.
CONCLUSION
I have considered carefully all of the relevant s 60CC matters as well as the affidavit evidence of the parties and their submissions.
In my view, it is a finely balanced decision. I am of the view that on balance the orders as proposed by the father are in their best interests. I found the mother’s affidavit evidence as to the reasons why B School was unacceptable and C School acceptable unconvincing in light of the concessions obtained in cross-examination. I am not satisfied that the travel involved on the occasions that the children are in her care is as onerous or burdensome as to be determinative, particularly in circumstances where public transport is available. In that respect, I note her evidence that X has in the past used public transport to get to school. I am not satisfied that there is evidence that if the boys go to B School it will have the adverse effect on X.
B School offers all of the same educational benefits as does C School. B School, however, has opportunities in relation to sport that C School does not, which would be of benefit to the sport mad Z.
The parties had an agreement that Y and Z would attend B School. The mother did not inform the father until mid-2018 that she did not want the boys to go to private schools. Even then, she informed Dr F in 2020 that she was open to them attending a private school.
I will make the orders as sought by the father.
I certify that the preceding one hundred and thirteen (113) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 24 October 2022
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