O'Keeffe and Cottrell

FAMILY COURT OF AUSTRALIA

O’KEEFFE & COTTRELL

[2008] FamCA 1069

FAMILY LAW – CHILDREN – Best interests – Child’s school year 2009

Family Law Act 1975 (Cth) s 60CC

APPLICANT:

Mr O’Keeffe

RESPONDENT:

Ms Cottrell

FILE NUMBER:

BRC

3066

2008

DATE DELIVERED:

27 October 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

23 October 2008

REPRESENTATION

THE APPLICANT:	Appeared on his own behalf
COUNSEL FOR THE RESPONDENT:	Mr Slade Jones

SOLICITOR FOR THE RESPONDENT:

John Nagel and Co.

Orders

Unless the parties otherwise agree the child … born on … December 1996 (“the child”) attend B State Primary School for year 7 in 2009 and commence at C Grammar School in year 8 in 2010.

Pursuant to s 65L of the Family Law Act 1975 (Cth) Mr P family consultant (or another family consultant if Mr P not be available):

(a)explain to the child the reasons for judgment accompanying these orders, or so much of the reasoning as the family consultant considers appropriate;
(b)give the parties such assistance as reasonably they may require in relation to compliance with and carrying out these orders.

The matter be placed on the list of matters to be called over at 10am on Thursday 20 November 2008 for the allocation of a trial date in 2009 in relation to all remaining parenting issues.

IT IS NOTED that publication of this judgment under the pseudonym O’Keeffe & Cottrell is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC3066 of 2008

MR O’KEEFFE

Applicant

And

MS COTTRELL

Respondent

REASONS FOR JUDGMENT

The narrow but important issue I am asked to determine is whether the parties’ child, born in December 1996, nearly 12 years, should spend his 2009 year 7 school year at the B State Primary School (B School) or the C Grammar School (C School).
The child’s parents, Mr O’Keeffe (the father) and Ms Cottrell (the mother), have agreed that the child will spend years 8 to 12, that is, 2010 to 2014, at C School. Presently, steps have been taken to ensure the child’s enrolment at C School to commence in year 7 in 2009 if I should determine that such is in his best interests. Otherwise the child will attend B School for year 7 and commence at C School in year 8.
In the State school system in Queensland, primary school comprises year 1 to year 7 and secondary school year 8 to year 12. C School, similarly to some other private schools, comprises a preparatory, middle and senior school, preparatory comprising years 1 to 6, middle school years 7, 8 and 9 and senior school years 10, 11 and 12.
The child’s father is keen for the child to have the opportunity to commence at C School next year to ensure that he has the benefit of the full three middle school years. The child’s mother is keen for the child to remain at B School in year 7, not only to have the benefit of the completion of the final year in the State primary school system but also because the child has had behavioural difficulties in the past, and at B School his behaviour has stabilised over the last two years. The child’s mother attributes this to a large degree to his teacher at B School, Ms M, as a “big part of the turnaround”, but recognises also the “collaborative” effort of the B school principal, Ms H, Ms M and other staff.
The child’s father has made clear that he is prepared to pay for the tuition and other educational costs including school uniforms and supplies and any school based extracurricular activities at C School for both 2009 and the 2010-2014 school years.
In January 2007 Dr L, paediatrician, diagnosed the child with Oppositional Defiant Disorder (ODD), and Conduct Disorder. I will refer to the child’s conduct in more detail below.
The views of both of the child’s parents and the reasons for their views are set out in their respective affidavits filed in relation to the discrete issue to be determined, the father's in his affidavit filed on 27 August 2008 and the mother's in her affidavit filed on 22 September 2008. In addition, the parties tendered into evidence the various documents comprising exhibits 1 to 7.
My determination must be based upon a finding as to the child’s best interests as the paramount consideration, to be determined by considering the s 60CC matters to the extent that each may be relevant. I am assisted in this objective by the family report by Mr P, family consultant, dated 9 October 2008, which was prepared with expedition pursuant to an order made on 23 September 2008, with the hearing listed on 23 October 2008 to ensure that a timely decision be able to be made before the close of the current school year.
It is appropriate then to turn immediately to the s 60CC matters.

Meaningful relationship

There is no suggestion that the decision to be made either way may be likely to affect the child’s meaningful relationship with both of his parents. In particular, pursuant to consent orders in place, the child lives with his mother and spends substantial and significant time with his father (five nights per fortnight and half of the school holidays) and they have equal shared parental responsibility for him.

Protection from harm

There is no suggestion of the relevance of any abuse, neglect or family violence creating the need for protection from physical or psychological harm in relation to the child’s 2009 school year.

Child's views

The child has expressed to Mr P, and also to his father, the strong wish to commence at C School in year 7 in 2009. The father said that the child specifically has said to him that he does not want to remain at B School for year 7 and has described the strength of the child’s wish as "11 out of 10".
The child has also said to his mother that he wishes to go to C School, however, her evidence is to the effect that the child has never said that he wishes to go to C School in year 7 as opposed to year 8.
The child told Mr P he enjoys school at B School, saying "It's a good school” and “It’s easy to be friends with kids” although a couple of the teachers there, he perceived, did not like him. He told Mr P he does not feel he would regret leaving B School, but he had not thought about it much because "my mind is on [C School]”, and he “would like to get a head start at [C School] as soon as possible and settle in”. The child said to Mr P that “standout” features of C School are sport, sporting opportunities and its “good academic past”. He said to Mr P also he knows “lots of friends” who go there and that he would like to go there in year 7. The child said to Mr P that he liked B School because it is a small school (“240 kids”) but that he did not feel intimidated or daunted by the prospect of attending a much larger school environment.
Mr P, in his evaluation of the child, said there is little doubt he would welcome an end to the long standing tension surrounding his parents' inability to agree on issues affecting him.
The mother believes that the child’s expressed preference to start at C School in year 2009 arises from false expectations which the child’s father has given him about the school and what it would provide for him, for example, the child has said to his mother "I will be an OP 1 student if I go to [C School]" and "I know guys who went there who work on Wall Street now". (I will interpolate there, having regard to the child’s age, that this may be more likely to be a misquote from the child’s father rather than a statement by the child directly, however this is not clear).
The mother referred to a previous proposal that the child attend S College for secondary school and that he had been excited about that, and said that at no stage has the child told her that he does not wish to remain at B School for year 7 where he is happy and gets on well with the other students both at school and outside of school hours.

Nature of relationships

It appears that the child has a good relationship with both of his parents, although, as will be seen, he is angry and annoyed that they are in conflict about the question presently in dispute.

Willingness and ability to facilitate and encourage a close and continuing relationship between the child and the other parent

Both parents, according to Mr P, have involved the child in the present dispute. Each has attributed negative motives to the other. It is uncertain whether these have been divulged to the child however it is likely he may have perceived these motives even without express explanation.

The likely effect of change in the child’s circumstances

Mr P observed that if the child were to stay at B School for year 7 he would have the benefit of the ritual of the closure of his year 7 and completion of the end of primary school milestone as a marker in his life. Some of the rituals were described as T-shirt design, mentoring year 1 students, graduation dinner and student leadership programs or activities. He would remain at a school which presently he likes but is not the school he wishes to attend for year 7.
At B School there is presently no reason to think that the child would not have the benefit of the continuation of the "remarkable and commendable" input that B School has contributed to him by being successful in "modifying his problematic behaviour" (report, par 33).
However, Mr P observed that he would doubt that C School (or for that matter any other high school) would not have in place adequate support for vulnerable or at risk students "so that those issues are identified and managed" (report, par 34).
If the child were to commence at C School in year 7, on the father's case he would be one of 25 new students and on the mother's case one of 56 new students entering the middle school and would have the advantage of the whole three year middle school experience rather than joining the middle school after the lapse of the first such year and commencing in the second year of the middle school experience when peer groups and sporting teams already would have been established. Further, he would miss out on such rituals as middle school orientation or initiation.
There is no present suggestion that if the child’s strong wish is not given effect he would rebel, turn against his mother, take his father's side in the dispute and even seek to change residence from the mother's to the father's household. However, he has been diagnosed with ODD and is on the verge of adolescence. Thus, the question whether, if the determination of his best interests does not coincide with his strong wish, may be met by acceptance or rebellion, is unpredictable.
The father points out that the child has attended four schools to date (SP School at East Brisbane for pre-school; SP School years 1-3; ST School year 4; and B School years 5 and 6), and that as he will be changing in any event to C School in year 8 (the parties having agreed that), it would be better for the change to occur sooner rather than later for the earlier benefit to the child of the educational and sporting advantages offered by that school including its greater pool of resources, especially in its teaching staff.
In cross examination, Mr P said, as to the likely effect of change for the child in entering C School for year 7 as opposed to year 8, that there are no studies in relation to children missing end of school rituals being detrimental but there is an important social sense of completion of a rite of passage, referring to rituals such as water bombs, first school dance attendance and the like.

Practical difficulty and expense

The parents live within reasonable proximity to each other, in suburbs in East Brisbane. C School is at East Brisbane which is reasonably proximate to B School, and both suburbs in which the parents live.
The father has offered to be responsible for all of the tuition and other educational costs and outlays as mentioned already, for C School.

Capacity to provide for the child’s needs

Mr P said that both parents, but particularly the father, must acknowledge the seriousness of the circumstance of the child having been diagnosed as having a conduct disorder. He said that the father appears to downplay the significance of Dr L’s diagnosis, saying to Mr P on one occasion "I don't think it is all that bad, [the child] is just a bit more of a go getta than other kids". Mr P said however that an overwhelming majority of children diagnosed with conduct disorder continue on to exhibit behavioural disturbances in adulthood and commonly present clinically with antisocial or narcissistic personalities (report, par 33).
Mr P referred to the mother's belief that another 12 months at B School would teach the child techniques for regulating and managing his strong emotions before he enters the less personalised environment of high school where children are expected to be organised, self-disciplined and self‑directed. Importantly, Mr P observed that whilst he agrees with this he doubts very much that C School or for that matter any other high school would not have in place adequate support for vulnerable or at-risk students so that such issues are identified and managed (report, par 34).
In identifying the mother's concerns he referred to the closure of the primary school experience to which I have already referred, as to which Mr P observed that whilst this can often be an important marker in a child's school life, whether the child will be affected in any way if he either remains at B School and experiences this common ritual or whether he leaves B School and does not experience it is impossible to say.
In the paragraphs following Mr P made further observations as to the mother's and father's views as expressed to the child, in particular that in the father's view there are no significant advantages to be gained for the child in completing his primary schooling at B School. Mr P observed, however, that it was noticeable to him that the father did not demonstrate any real insight into the possible ramifications for the child’s social and emotional development of altering his schooling in his final year of primary school.
Mr P’s observations tend to suggest that the mother, rather than the father, has the greater insight into the child’s needs and greater capacity to understand them and thus provide for them.
Mr P referred to the mother's description to him of the child being somewhat unsettled as a baby, with colic, reflux, feeding difficulties and being a poor sleeper; that as a toddler he was highly active and difficult to calm; and that at an early stage "the doctors" talked about him possibly having ADHD. Mr P recorded the mother telling him that the child had suffered primary enuresis up until the age of 6 and behaviourally was very difficult at day care such that eventually she was asked not to take him to the day care centre and that the child’s pattern of aggression and extreme behavioural outbursts continued into pre‑school and then primary school.
The father sought in cross examination of the mother and in argument to attribute the child’s misconduct to diet, exemplified by his tender of a Mentos label showing its ingredients (exhibit 5) and to reference to other “sugar foods” which he contends the mother feeds the child, such as Coca Cola, Lemonade and Nutrigrain.
The father relied also on exhibit 7, a report by Mr T, as showing his concern as the child’s father in developing strategies for the child’s conduct; genuine past efforts to deal with the child’s behavioural problems; and also confirmation or acknowledgement of his recognition of the child’s behavioural problems. He relied on Mr T’s report as being in his favour, as showing him taking the child’s conduct problems seriously and taking proper steps concerning them.

Maturity, sex, lifestyle and background

Mr P said that the child presented as a confident, articulate 11 year old who looks his age but whose height Mr P suspected to be in the high percentile range for his age, who said to Mr P that he was "the tallest in my class and it’s a year 6/7 class”.
Mr P did not notice signs of anxiety but the child told him he was "angry because my parents can't make a decision and they drag me into all of this". Amongst other observations Mr P said the child’s cognitive attention was good and he estimated his levels of intelligence and comprehension to be above average.
The child told Mr P he believes his friends would describe him as “sporty, funny, a good friend and smart”. He nominated AFL football, swimming, reading and playing with his mates as his main interests.
Mr P said as to the child’s background that he was accepted at B School after his enrolment at ST School was cancelled due to high levels of problematic behaviour. He noted material provided to him, not all of which at this stage is fully in evidence, including that the behaviour included aggression, swearing, lying, defiance and damage to property. He referred to a report by Dr J, August 2004, in relation to the child’s aggression and detection of a deficit in his social skills.
Mr P recorded that the mother told him that the ultimate decision for the child’s expulsion from ST School came after he physically assaulted a female teacher. Mr P says that he saw a letter from Dr L, paediatrician, that the mother brought to the interview, containing the diagnosis in January 2007 of ODD with conduct disorder and the recommendation of commencement of the medication Resperidone to help manage extreme outbursts and that the mother told him that the medication was ceased in August 2007 after the father refused to administer the tablets to the child such that the paediatrician then recommended that the medication be stopped. Mr P observed that the mother claims that the father has never accepted that the child has serious behavioural problems (report, par 26).
The mother's affidavit, par 14, sets out more detail as to the child’s conduct, history and treatment and annexes several reports and other documents concerning it including:
·    Guidance Report 23 November 2006 from Catholic Education (TVC1);
·    The child’s 1 September 2008 school report (TVC3);
·    Letter B School principal (Ms H) 18 September 2008 (TVC13).
Whilst it is not necessary to set out all of the contents of these documents, it is important, I think, to refer at least to the following extracts:
TCV1
Summary
The results from this administration of the TRF/6-18 suggest that [the child] has some behaviours which are markedly atypical from his peers. [The child’s] teacher has reported information which suggests that [the child] has Aggressive Behaviour and Rule Breaking Behaviour in the school setting which is in the Clinically Significant Range. [The child’s] scores on the Anxious/Depressed scale place him in the Borderline Clinical Range. In addition the composite scores from the eight individual scales, namely the Internalising, Externalising and Total Problem Scales show [the child] as having Clinically Significant problems across all three scales. [The child’s] scores on the Withdrawn/Depressed, Social Problems and Attention Problems scales while they are shown in the normal range are at the higher end of this scale, that is at the 90th, 92nd and 92nd percentile respectively. [The child’s] high scores on these individual problem scales and composite scales warrant further attention from specialists.
TCV13
[The child] presented at this school with some difficult behaviours. He was easily angered, at which times he would leave the room and hide in the school grounds. At these times he was very argumentative, unreasonable and disrespectful. This happened on average every fortnight for the first term, reducing to only twice in the second term.
Over the course of the last 15 months [the child’s] behaviour at school has settled somewhat, due to consistent, fair and predictable treatment by all staff but in particular by his classroom teacher. Class placement for [the child] is worthy of prime consideration. He has had the same teacher for all his time at this school. This is because I believe she provides an environment suitable for his needs, in which behaviour disruption is dealt with well, and thus allows him to develop academically. He no longer leaves the room in anger, and is now willing to engage in discussion with his teachers.
With regard to his placement next year, my intention is to place him in a class with two teachers. One of these is a male teacher who has been positively involved in [the child’s] schooling to date and the other is a very experienced female teacher who has taught Year Seven students for many years, and who is familiar with [the child] and his needs. I believe the combined wisdom and expertise of these teachers will allow [the child] to achieve even greater success than has occurred to date.
I am unable to comment on the program at [C] Grammar School as I am unfamiliar with it.

The mother said that in year 3 at SP school the child complained that he was being bullied by boys in older grades and that he felt invisible to students and teachers and confessed that he used to act up and behave badly to get attention. She changed his school to ST School for year 4 in 2006 but the child’s conduct worsened and his enrolment there was cancelled, the school saying it did not "have the resources" for the child’s continued enrolment in year 5 in 2007.
There were then discussions with SP School who refused to offer the child a place for year 5 in 2007. After approaching other schools (S College, V College) a successful placement was achieved at B School where the child successfully has completed years 5 and 6 in 2007 and 2008.
The mother's material refers to Y College having declined an application for the child’s enrolment for year 8. There is much other detail in the mother's affidavit concerning discussions about and applications for enrolment, however, it is not useful presently to refer to these in more detail.
As to the child’s maturity, Mr P observed that the child was happy to discuss his history and did not appear embarrassed by it. He described "my mind had a mind of its own and I would just have these outbursts of anger". He appraised himself as probably being "a bit smarter" than other kids in his grade and "more sporty" than them and, as I think I have mentioned, nominated AFL football, swimming, reading and playing with his mates as his main interests (report, pars 28 and 29).
Mr P observed that on all of the material it appears that since being at B School the child’s behaviour has improved significantly but that it is not possible to conclude there is a causal relationship between the two and it is likely that a number of factors have contributed to the changes, however, observing that given the timing of the improvement in the child’s behaviour it is hard to ignore the fact that his time at B School appears to have been good for him. He observed that at this stage of the child’s development his school environment, with the exception of his family environment, is the most powerful influence on his development.
As to lifestyle, the child presently lives with his mother, her husband and their two children, a daughter aged 4 years and a son aged 1 year. The child is at an age and stage at which he is developing independent interests related to his educational, sporting and peer group pursuits.

Attitude to the child and to the responsibilities of parenthood

There is no doubt that each of the child’s parents loves him, has a very responsible attitude to him and their relationship with him and want the best for him, although unfortunately they are negative about each other and each other's motives in the present dispute. Mr P said that the father described his motivation in wanting the child to commence at C School in year 7 in positive and child focused terms, for example, to give the child the best opportunity to get what he needs, referring to the circumstances that it is a GPS (Greater Public Schools) school, has very well credentialed teachers and held in high regard and the circumstance that the child has friends commencing there in year 7 in 2009. He referred to “the experience of going to a school like that and the network you get” (report, par 13).
Mr P referred to the father's belief that the mother's opposition to commencement in year 7 as opposed to year 8 is "simply a way of going against what I want", referring to their dispute as a "long running matter between us" which he is not sure can be attributed to "jealousy, anger or what" (report, par 15).
The father referred also to the child being ready "academically" to commence at C School; and to the child’s love of sport which can be "fostered" there. He referred to the importance of the “change group” at C School, that is, the benefit of commencing the middle school in year 7 for the benefit of the full three year experience, rather than joining in year 8 so as to miss commencing at the start of the middle school experience with the other year 7 commencers (report, par 17).
Mr P said that the mother described her motivation "in the current matter" as being "to ensure that decisions are made in [the child’s] best interests and not as a result of what [the father] or I think is best". She described to Mr P that she and the father had discussed other private schools and that "[C School] hadn't been mentioned but suddenly he was insisting on it" which had confused her and she attributed the sudden urgency to the father having a friend whose sons go there, adding "[the father] tends to want to keep up with his friends" (report, par 19).
Mr P observed the mother's expressed concerns about the child’s behavioural and conduct problems at the various primary schools he had attended and her observations as to his significant behaviour improvement at B School including "the principal and the teachers have slowly shown [the child] that he cannot continue to be so aggressive and most of all they have taught him new ways of dealing with his anger". Her concern expressed to Mr P is that the gains made to date at B school need to be "consolidated and continued" before commencing "high school" and that year 7 is an important year in the educational cycle because it provides a sense of closure on the primary school years (report, par 23).
In cross examination, and in submissions, the father put and argued that the child’s conduct problems essentially had occurred in 2006 in year 4 of his schooling when other factors impacted on his environment and that the main teacher at B School who had assisted the child, Ms M, is no longer at that school. Further, he put that the child does not like the teacher at B School he is likely to have in year 7 because that teacher "picks on him". The mother says that the child has not complained to her of that.
In contradistinction to year 4 in 2006, the father relied on exhibit 3, the child’s 2005 school report from SP School, as showing that the child had a reasonably settled year 3 in 2005. He relied also on the circumstance that for years 5 and 6 in 2007 and 2008 he had not been called to the child’s school at B School in recent times as indicating that whatever conduct problems may have subsisted before, no longer subsist. Based on this analysis, he put that the mother's current concerns as to the child’s behaviour are misplaced or exacerbated.
These views of the father, it must be said, are contrary to Mr P’s independent assessment of the child’s behavioural history and his observations as to the care needed in the present decision.
The mother's Counsel, Mr Slade Jones, cross examined the father in relation to exhibit 2, being one of the C School enrolment documents headed "Private & Confidential Information Concerning Your Son" in which the father, it appears, had circled "no" in response to a question as to whether there are "any serious physical, emotional or medical conditions", putting that the father thus had endeavoured to conceal to C School the child’s diagnosis of ODD.
In cross examination the father said that the response was accurate, despite Dr L’s diagnosis, with which he does not disagree, which I interpret to be the expression of an opinion by the father that the child’s diagnosed condition is not serious.
The mother has also signed the document exhibit 2. It is not clear in what circumstances however, it appears that may have been the document she signed pursuant to orders which I made on 23 September 2008, annexure B. (This is confirmed today from the Bar table).
The mother says the child is of average height and slender build and she is concerned that he may be bullied at C School, not because of his size, but because hers and the father's financial circumstances, in her perception, will be below the economic circumstances of many of the other C School families. As I observed during argument, however, on an earlier date, this may well be the same if it applies for year 8 onwards as much as to year 7.
The mother said in her affidavit that after learning of the father's application to enrol the child in C School in year 7 she had a discussion with the principal at B School who said to her that in her view the child’s best interests would be to stay at B School for year 7 (as set out in the mother's affidavit at par 30). The mother described in her affidavit the circumstances of her learning of the enrolment at C School for the child for year 7 which are set out at pars 19 and 20 of her affidavit, in particular that when she signed the enrolment form she assumed it was for grade 8. She referred to an entry on the enrolment form that the child had "no special needs" and to her challenging the father at the time with words to the effect of "that's not right" to which the child interjected with words to the effect of "come on, mum, just sign it". Other parts of the conversation are set out in those paragraphs to which I need not specifically refer.
The mother told Mr P that the father has "never accepted that [the child] has serious behavioural problems" (report, par 26), which Mr P summarised in the manner to which I have already referred.
Despite all of these matters, and the negative perceptions of each other's motives in the present dispute, there is really no scope for doubt in my view that each of the child’s parents has his best interests in mind in the current dispute, and that despite their negative perceptions of each other's motivations each genuinely is child focused.

Order least likely

There is no order which I think would be least likely to lead to the institution of further proceedings in relation to this matter. If the child were to commence at C School and show defiance and anti-authoritarian behaviour, he may be likely to be expelled so that it may then be said "The Judge made the wrong decision. If [the child] had stayed at [B School] for another year this would not have happened". On the other hand, however, it is not readily predictable at this stage whether the child would accept or rebel against any order which I might make which, contrary to his strong wish, he not commence at C School in year 7, particularly as he has said to Mr P "[C School] is on my mind" and, to some extent, I perceive on the material that the child sees himself there already and no longer at B School.

Other facts and circumstances

Mr P observed (report, pars 38 and 39) that every year large numbers of children experience the type of transition that the child would face if he were to commence at C School next year. He observed that the middle school model has been around for many years now and that as far as he is aware there is no research or even anecdotal evidence to suggest children are necessarily disadvantaged by joining a school at this stage. He said he is aware of a number of studies that identify individual differences and characteristics in children that are strong predictors of whether or not a child will adjust and cope with such change, including such things as temperament, intelligence, social skills, problem solving skills and self esteem.
He said further that in his opinion the actual transition to C School in itself will not pose a problem for the child. He said that he understands the child would be going in as a year 7 student along with a number of other boys and that he imagined that the group as a whole would be supported through the process. He observed that the child is a confident and intelligent child and suspects that he is a rather resilient child and that if he were to experience any difficulties he predicts they would be in relation to his pattern of behavioural problems, in particular his anti-authoritarian manner.
In his recommendations, despite having no reservations about the child’s intellectual and cognitive levels, and despite the child’s strongly expressed preference, Mr P suggested that the child remain at B School in 2009 and complete his final year of primary schooling there because of Mr P having formed the strong belief that against the background of his significant social and behavioural history that would be in the child’s interests (report, par 40):
40. I do however strongly believe that against the backdrop of his significant social and behavioural history, it is in [the child’s] interests to remain in an educational context that has managed to enhance his functioning in both these important developmental domains. I believe that by being in this environment for another 12 months, [the child] might be equipped with some very important core skills such as improved affect regulation, impulse control, and self-discipline, all of which are characteristics that will stand him well not only in high school but also in his adulthood life. To this end my recommendation is made with [the child’s] long-term developmental outlook in mind.
Mr P then concluded:
41. If the Court decides that [the child] should complete his primary school education at [B] State School I suggest the reasons for the decision be explained to him by myself or another Family Consultant. This is to ensure he is given an objective explanation that is not overly emotional or personalised.
42. If the Court decides that [the child] should commence his schooling at “[C School]” next year then I suggest [the mother] be the person who informs [the child]. This will help convey to [the child] that his mother endorses the decision (he already knows his father does so) and this will hopefully ‘free him’ from feeling any sense that he has disappointed his mother.
On the hearing date, last Thursday, Mr P said that the child "has a tremendous future" and other matters including that during his interview with the child he did not see any overt symptoms of a conduct disorder. However it must be put in context that Mr P’s role on that date was not to assess that, rather, the scope of the report as a family report is as defined in paragraphs 1 and 2 of it.
Mr P observed that the strategies that the child has been taught to use he still uses to regulate his behaviour and that a good conduct record in the immediate past does not mean that the child’s problems have gone away, rather, that he is to be congratulated on dealing with them. He said that in relation to ODD and conduct disorder, longitudinal studies indicate it does not go away.
When it was put to Mr P that if the child remains at B School and is with the teacher he does not like, and whom he believes “picks on him”, that would be detrimental to him, Mr P observed that, on the contrary, it would be helpful to the child as a person with an underlying conduct disorder to master that and that indeed it could be a problem or on the other hand a wonderful development opportunity for him.
He confirmed his view that there is nothing "better or worse" in relation to the middle school model per se. He accepted, as put by the father, many “positives” about C School in relation to the child, for example, that the child’s sporting interests would be better served at C School and that the child would be happier at C School.
He responded positively further to the question whether happier kids show better outcomes, but emphasised to the child’s father that happiness and behaviour cannot be confused. He agreed that if the child is happier then there is a possibility that there be a better outcome and that the behavioural problems might fade and agreed also that there may well be negative reaction from the child if he is stopped from going to C School in 2009.

Determination

It is significant that the child has expressed the strong wish to commence in C School in year 7 in 2009, and to a certain extent I perceive in reading Mr P’s assessment that in the child’s mind it is a fait accompli, his mind being already there ("my mind is on [C School]"), such that he had not really thought much about anything he would miss out on if he left B School. It is significant also that in submissions, the father described the child’s desire to go to C School as “11 out of 10”.
At nearly 12 years, the child is of an age and maturity at which his views should be taken into account and given weight. There is, for example, no expert evidence that his views should be given less weight because of his ODD diagnosis.
It was submitted by Mr Slade Jones of Counsel, for the mother, that the context of the child being angry and annoyed at his parents' arguing may be a factor relevant to weight. Whilst this may be so, it does not entirely explain the child’s clearly stated preference. There is more force, I think, in the mother's view that the father has promoted C School to him as a wonderful place for his son to be educated which undoubtedly it is.
There is more significance, however, in an objective analysis of the child's behavioural history and difficulties and the reports about it, which are of concern, and Mr P’s very carefully analysed viewpoint that in his opinion the child’s best interests would be served by continuing to attend B School until the finalisation of year 7, representing the completion of his primary schooling at B School and the beneficial closure aspect of that achievement. I refer in particular to the report TVC1 and the letter TVC13 already set out, and to Mr P’s conclusion at par 40 of his report, also already set out.
Against this, I take into account Mr P’s responses in cross examination by the father to which I have referred, in particular, that the child may be likely to be happier at C School in 2009 and that there may be a negative reaction if the child is stopped from achieving his expressed wish of starting at C School in 2009 as opposed to 2010.
I take into account also the relevant s 60CC matters analysed above and the careful submissions of Mr Slade Jones and of the father including that if the child were to stay at B School for year 7 he would not have the benefit of Ms M, whereas it is clear that the mother acknowledged she had played a large part in the "turnaround" in the child’s behaviour. Against this however is Ms H’s proposal to place the child in year 7 at B School in a class with two particular teachers whose attributes she described, although candidly she acknowledged being unable to comment on C School’s program.
The matter is finely balanced as to what may or may not be in the child’s best interests for year 7 in 2009, as on the evidence there are perceived advantages and disadvantages either way.
In some cases, there is no right or wrong decision and this is one of those. It is unpredictable as to any youngster on the verge of the teen years as to whether one thing or another will work. There is, as has been described in some authorities, an exercise in decision making partly evaluative and partly intuitive, depending on the particular case.
To some extent, my intuition leans towards determining that it is in the child’s best interests to commence at C School in year 7 in 2009, not only for the advantage of commencing the middle school experience at the same time as the other entrants to it, when for example, peer groups and sporting teams are formed, but also because of my perception that if the child is not to have his “11 out of 10” wish he may rebel, Mr P having observed that the child unfortunately has an anti-authoritarian manner.
To yield to that intuition however would be to go against the very strong evidence as to the severity of the child’s past conduct problems, and to ignore the evidence of his current school principal as to the genuine progress the child has made in the last two years at that school and go against also Mr P’s strong opinion as to what is in the child’s best interests.
Whilst I recognise that there is “no magic in a family report”, as has been stated in the authorities, I am persuaded that my intuition should yield to Mr P’s very carefully considered expert opinion in the matter, particularly having regard to his specific qualifications and experience (his curriculum vitae being attached to the family report), and thus find in accordance with that evidence as to Mr P’s strong opinion, and I so find on the evidence, that it is in the child’s best interests to remain at B School for 2009 which opinion expressly Mr P has formulated with the child’s long-term development outlook in mind.

In my view therefore, having carefully considered all of the relevant s 60CC matters, the evidence and the submissions, and having ultimately accepted Mr P’s expert opinion, I determine on the evidence that it is in the child’s best interests to continue at B School to complete year 7 in 2009 and will thus dismiss the father's application and so order.
I accept Mr P’s recommendation that the child should have the reasons for decision explained to him either by himself or another family consultant to ensure that he is given objective explanation, that is, not overly emotional or personalised.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O'Reilly

Associate:

Date:

[2008] FamCA 1069

27 October 2008

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies

Procedural Fairness