Medina & Joon
[2024] FedCFamC2F 1647
•21 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Medina & Joon [2024] FedCFamC2F 1647
File number(s): MLC 13366 of 2024 Judgment of: JUDGE JENKINS Date of judgment: 21 November 2024 Catchwords: FAMILY LAW – PARENTING – interim schooling application – all schools more than prima facie satisfactory and otherwise capable of meeting the children’s needs – parents intentions for the children’s education – children’s expectations – impact on children of a change of school – best interests of children met by remaining at current school Legislation: Family Law Act 1975 (Cth) ss 60CC, 60CG, 69ZL Cases cited: Bliz & Breugelman [2013] Fam CA 578
Franklyn & Franklyn [2019] FamCAFC 256
Re G:Children’s Schooling [2000] FamCA 462
Division: Division 2 Family Law Number of paragraphs: 60 Date of hearing: 13 November 2024 Place: Melbourne Counsel for the Applicant: Mr Dickson KC Solicitor for the Applicant: Marshalls Dent & Wilmoth Counsel for the Respondent: Mr Puckey KC Solicitor for the Respondent: Lander & Rogers
Table of Corrections 21 November 2024 Paragraph 41 has been amended pursuant to r 10.13(1)(h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“r 10.13(1)(h)”) to reflect the Court’s intention ORDERS
MLC 13366 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MEDINA
Applicant
AND: MS JOON
Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
21 NOVEMBER 2024
Amended pursuant to r 10.13(h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 21 November 2024
THE COURT ORDERS THAT:
1.Until further order or as otherwise agreed between the parties in writing, the children of the marriage: X born in 2012, Y born in 2013, and Z born in 2015 (“the children”) continue to attend B School and the parties be and are hereby restrained from facilitating their attendance at any other school.
2.All interim applications be otherwise dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS:
INTRODUCTION
This is a parenting matter concerning three children:
(1)X (“X”), born in 2012, aged 12 years old;
(2)Y (“Y”), born in 2013, aged 10 years old; and
(3)Z (“Z”), born in 2015, aged nine years old.
The dispute concerns the school which the children will attend for the 2025 school year and beyond.
Brief background
The parties met in 1995, married in 2001 and recently separated on 18 September 2024.
The applicant father, Mr Medina (“the father”) is a health care worker.
The respondent mother, Ms Joon (“the mother”) is a health care worker and runs her own business.
The mother lives in a home above her business at C Street, Suburb D.
The father lives in the former matrimonial home at E Street, Suburb F.
The children all currently attend B School, which is located close to the former matrimonial home in Suburb F.
X is currently in grade 6. He is due to commence secondary school in 2025.
Y is currently in grade 5 and due to commence grade 6 in 2025.
Z is in grade 3 and due to commence grade 4 in 2025.
The father filed an application initiating these proceedings on 21 October 2024 which included seeking an urgent interim order to ensure the children continue to attend B School.
The mother filed a response on 23 October 2024 seeking orders for X to attend G School and for Y and Z to attend H School commencing in 2025, collectively (“the new schools”).
Orders were made by a judicial registrar of this court on 1 November 2024 listing the matter for an interim hearing before myself on the discrete issue of schooling.
The parties were also in dispute about the children’s living arrangements but were able to resolve this issue on an interim basis on the morning of the hearing. The interim consent orders provide for the children to live with the mother and spend time with the father on four nights each fortnight as well as during the long summer holidays. The parties were also in agreement that they would attend upon Ms J for a private family report on 29 November 2024.
DOCUMENTS RELIED UPON
The parties each set out at the commencement of the hearing the documents they relied upon.
Both parties had filed documents which did not comply with the orders and directions made by the judicial registrar on 1 November 2024. Ultimately the parties were permitted to rely upon the following:
(1)The father:
(a)his case outline filed 7 November 2024;
(b)his initiating application filed 21 October 2024;
(c)his affidavit filed 6 November 2024; and
(d)documents specifically referenced in submissions from his tender bundle dated 13 November 2024.
(2)The mother:
(a)her case outline filed 7 November 2024;
(b)her response to initiating application filed 23 October 2024;
(c)the first ten pages of her affidavit filed 6 November 2024; and
(d)her notice of child abuse, family violence or risk filed 23 October 2024.
The matter proceeded by way of submissions. I have taken into account all of the submissions that were made and the evidence in so far as it related to those submissions.
Pursuant to subsection 69ZL(1) of the Family Law Act 1975 (Cth) (“the Act”) I propose to deliver reasons in short form with respect to the issues in dispute.
Although the evidence is yet to be tested pursuant to the Full Court decision of Franklyn & Franklyn [2019] FamCAFC 256 (“Franklyn”) at [73]:
…decisions must still be made despite contentious evidence. Judges are obliged to act on the strength of the evidence presented and, if it is relatively weak, are entitled to treat it so…. judges are not required to treat all untested evidence as bearing the same weight.
Having said that, as per Franklyn, as far as possible I have relied upon agreed facts, less contentious evidence, and inferences which fairly arise.
THE LAW
In the case of Re G:Children’s Schooling [2000] FamCA 462 the Full Court identified the following factors the court should consider when determining a schooling dispute:
(1)The views of the child when appropriate;
(2)Any prior agreement in selection of schooling;
(3)Any change to existing arrangements;
(4)Other siblings current and/or future schooling arrangements;
(5)Any anxiety the child may experience as a result of changing peer groups;
(6)The views of the parties about the effect of the change on the child;
(7)Travel time to school; and
(8)Costs of education.
In addition, as set out by Austin J in Bliz & Breugelman [2013] Fam CA 578 at [81] to [83]:
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]).
Legislative pathway
Orders in respect of children are regulated by Part VII of the Act.
When making parenting orders, the court is mandated to regard the child’s best interests as the paramount consideration.
Section 60CC(2) of the Act specifies six matters which must be considered when determining what is in the child’s best interests.
I also note that pursuant to subsection 60CC(2A) of the Act, the court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child together with any family violence order that current or has previously applied to a child, or a member of the child’s family.
Furthermore, section 60CG of the Act requires a court, when considering what parenting order to make, to ensure that whatever order is made, it does not expose a party to an unacceptable risk of family violence and is consistent with any family violence order.
I have considered each of the sections referred to in Part VII of the Act, although I may not refer to each specifically.
CIRCUMSTANCES IN THIS CASE
In this case there are many issues in dispute, including the level of involvement the father had in both the care of the children as well as their education.
The mother says she has been primary carer for the children and has been the only “involved parent” in the children’s care and schooling. This is denied by the father who says both parents worked long hours for the majority of the relationship.
Nonetheless, by virtue of the consent orders, it is not disputed that the mother is to have the primary care of the children on an interim basis.
It is evident that one of the considerations identified in the authorities are the practicalities of children attending a particular school, in particular as they relate to the “resident” parent but also for the non-resident parent.
In this matter, the new proposed schools are in fact located further from the mother than B School, but not by a significant margin. In any event, the mother asserts she is able to facilitate the school pick-ups and drop offs because of her reduced working hours and with the assistance of her mother. Otherwise, the children are able to use public transport.
Although the new proposed schools are further from the father than B School, which is near the former matrimonial home where the father still currently resides, I do not see the distance as being of any great consequence.
INTENTION OF PARENTS
The mother
The mother’s case is that the parties had a mutual intention for the children to transition to the new schools in 2025. She said that as a result all three children had an expectation that this would occur. She says that it was only after separation that the father changed his position.
The mother’s evidence in support of this assertion includes the following:
·X has been enrolled at G School since he was born, and the father has always been aware and agreed to this;
·in October 2022, the mother secured X a place on the waiting list at G School and that the father was aware and agreed to this;
·X did school tours of G School in 2022, 2023 and 2024, and the father was aware and agreed to this;
·when X had not secured a place at G School by mid-2023, the father contacted G School and was able to secure him a place and paid the acceptance fee of $7,100;
·in November 2023, the parties notified B School they had made a “family decision” not to renew X’s enrolment at the school;
·in 2023 Y sat the scholarship exam for H School on the basis that if she obtained a scholarship, she could attend that school. Y was not successful on her first attempt but was offered a scholarship following her second attempt in January 2024. The mother says the father repeatedly told Y that if she got a scholarship she could go to the school and that as a result she went to great effort to ensure she was ultimately successful;
·in early 2024, Y had an interview with the school principal at H School and the father paid $4,300 to accept a place at H School for Y;
·in mid-2024, X received a formal admission letter to G School and the parties both attended the parent’s information session that evening; and
·just five days before separation in September 2024, the father paid $13,793 towards X’s G School fees.
The father
The father says that the parties have been in dispute about the change of schools since early 2023 and that this potentially led to their separation later this year.
The father’s evidence is:
·the parties paid the various fees for the new schools to keep options open, and that it is not unusual for children to be enrolled in multiple schools;
·the father was content for the children to sit the scholarship exams for exam experience but that this did not mean they would necessarily be attending the schools; and
·the father expressly told the mother he was not agreeable to the change of schools, but the mother unilaterally advised B School to withdraw the children in April and August 2024 without his knowledge.
Text messages between the parties support the father’s assertion that the parties were in dispute about the new schools in or about March/April 2024. These include:
March 2024
Mother to father:
Please pay at [H School]. We need to buy the time.
March 2024
Father to the mother:
I think this is becoming ridiculous, with you so I think it’s best for [X] and [Y] to stay at [B School].
April 2024
Mother to father:
I am happy to have dinner and talk about anything but the kids education. We do not see eye to eye and need external help. I do not want to be bullied belittled and threaten. Let’s talk about that topic over mediation with a lawyer in a few weeks.
Father to mother:
….Let’s discuss this over dinner tonight 6 pm. There is always a solution but both of us have to compromise to reach the solution. Either we do it ourselves in a loving relationship way (or being forced by lawyers and courts and we both lose more).
Mother to father:
…But we do not see eye to eye on this matter and I do not want to live with regret once again when you did not allow the kids nor me to have a say in their education as when you removed us from [….] against my wishes.
Mother to father:
[Mr Medina] compromise is what I always do. I cannot to that this time as this is my jurisdiction…
Father to mother:
… It’s also MY decision too. Since we cannot agree am I then the one expected to always give in? What right do you have?...
Mother to father:
… I know we should give up [H School], but the honour of being on a scholarship is pretty awesome and [Y] will always feel and element of regret regardless of any sane reason.
It seems
likelyunlikely given these exchanges that the parties were in heated agreement to notify B School on 16 April 2024 that X would be transitioning to G School in 2025.However, whether or not the father was directly aware of, or took part in the subsequent steps to transition the children to the new schools, such as school interviews and parent information nights, it is hard to understand how he could be entirely oblivious to the process given he remained living in the same household.
The mother also submits that if the father only became aware, as he says, of the decision to remove the children from B School on 5 September 2024, then he did nothing to raise it as an issue with her until October, and indeed paid the full fees at G School on 13 September 2024. She says this is indicative of the father’s real bona fides, that he was upset about the separation and not strongly opposed to the school change.
VIEWS OF THE CHILDREN
The mother says that as a result of the parties’ common intention and their subsequent actions, the children have an expectation of attending the new schools. Indeed, she says the family had been working towards this transition for years and the children have been heavily involved in this plan. The mother points to the father’s evidence that Y may be disappointed if she does not go to H School as corroboration of this.
The father denies there was ever such a concrete plan and that the change of schools, whilst discussed, was never set in stone. The father says that if the children have such an expectation it is because the mother has done everything that she can to persuade the children the move is in their best interests and lead the children to believe that it was going to occur. Nonetheless, whilst the father agrees the children may be disappointed, he says there is no evidence that Y would be “devastated” as put by the mother and that the mother has not provided any factual basis for this assertion.
THE CHILDREN’S NEEDS
X
The father says that X’s favourite subjects are maths and science. The mother says that X loves physics, maths, extracurricular activities, and has a high IQ of ….
It is common ground X has a medical condition, which primarily affects his body. This diagnosis has meant that X is unable to participate in sport, that he must continue to eat well, and that he is prescribed medication twice daily. The father says B School manages X’s health needs well and is flexible in providing alternatives to sport.
The father says that X will have one friend moving to G School next year whilst the mother says five of his friends will attend the school.
Y
The father says that Y is more outgoing than X. The mother says that Y is funny and has a sassy personality, but that she is also hard working, ambitious, and talented at art. The mother says Y has a high IQ of ….
It seems both parents agree that Y enjoys student leadership roles at school but that because she has previously been a student representative at B School this is not open to her for a second time. The father says there are other leadership roles available at B School such as school captain, house captain and arts captain. Indeed, the father tendered a document from B School stating that Y had been short listed for school captain in 2025.
The father says Y will have two friends attending B School next year. The mother says that Y’s friends from her learning program will be attending H School, as well as “her idol” K, who is a sports champion.
Z
The father says that Z enjoys cooking and a sport.
The mother says that she is sweet, kind, and generous, and is a bubbly and social child who is also good at her sport and music.
The father says that Z’s friend L will be attending B School next year.
DETERMINATION
Whilst the parties raised issues such as the academic merits of each of the schools and which is better in catering for the specific interests of the children such as arts subjects, I am satisfied that all three schools are more than capable of meeting those needs.
There are otherwise no significant distances or other practical issues favouring one school over the other. Nor is cost of their attendance in issue.
In terms of the parents’ intentions, the evidence suggests that this was in dispute, at least in March/April 2024 and possibly beyond that, however, even if there had been a joint intention the authorities make it clear this would not of itself be determinative.
What weighs heavily on my mind, is the need to provide the children with stability given the recent separation and what has already become a highly acrimonious dispute between their parents. It was submitted for the mother that the children’s stability would be promoted by continuing to progress their transition to the new schools, as they have a long-held expectation that this would occur and that to keep them at B School at this stage would be incredibly destabilising for them. However, although the father concedes the children may have this expectation, I have no independent evidence about the strength of their views or the basis for same. Nor do I have evidence about the likely impact on the children if they do not move to the new schools. Ultimately, I am asked to determine this matter on the parties untested evidence, and without the benefit of expert evidence such as a family report or a report from an educational psychologist.
In the end, this case is very finely balanced, and counsel skilfully argued in favour of each of their clients. However, ultimately, in circumstances where the children are adjusting to the upheaval of their parents very recent separation, I find that it is not in their best interests to have a further change in their lives. It is not in dispute that the children are thriving at B School whilst the alternate schools are untested. If the alternate schools do not meet their needs, yet a further change would be required. B School also offers a familiar environment, including teachers and other staff known to them, who the children are more likely to turn to if they need support. B School, being coeducational, means the children are also able to remain together at the same school which may give them some additional comfort and make it easier for them to commute together if they are required to take public transport.
For all the abovementioned reasons, I make the orders at the commencement of this judgment herein.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 21 November 2024
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