Parsons & Parsons (No 2)
[2023] FedCFamC1F 606
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Parsons & Parsons (No 2) [2023] FedCFamC1F 606
File number(s): SYC 2144 of 2023 Judgment of: HARPER J Date of judgment: 13 July 2023 Catchwords: FAMILY LAW – PARENTING – INTERIM – Where the parents cannot agree on the school the children should attend – Where the children were enrolled and previously attended F School – Where the children currently reside with the mother and spend supervised time with the father on the weekend – Where the mother moved to a residence in Region K – Where the mother unilaterally changed the children’s enrolment to the local public school near her new residence – Where the children attended final three days of Term 2 at the local public school – Where the mother was aware the father wished the children to remain at F School – Where the father has undertaken to pay the school fees and perform all necessary travel required to and from F School and the mother’s residence – Where it is in the best interests of the children to remain at F School and not undergo a further change at present – Where Court made orders for the children to remain enrolled at F School pending further order of the Court – Where orders are conditional on the father paying all school fees and expenses as and when they fall due and undertaking all necessary travel to collect the children from the mother’s residence and delivery them to F School and return them to the mother’s after school – In the event the father fails to satisfy the conditions of the order sole parental responsibility with respect to the children’s education is allocated to the mother. Legislation: Family Law Act 1975 (Cth) ss 60CC, 61D Cases cited: Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232
AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Banks & Banks (2015) FLC 93–637; [2015] FamCAFC 36
Bilts & Broigalman [2013] FamCA 578
Re G: Children’s Schooling (2000) FLC 93-025; [2000] FamCA 462
Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
U v U (2002) 211 CLR 238; [2002] HCA 36
Division: Division 1 First Instance Number of paragraphs: 47 Date of hearing: 13 July 2023 Place: Sydney Counsel for the Applicant: Mr Macpherson Solicitor for the Applicant: Bridges Lawyers Counsel for the Respondent: Mr Dura Solicitor for the Respondent: Horton Rhodes Legal ORDERS
SYC 2144 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PARSONS
Applicant
AND: MS PARSONS
Respondent
order made by:
HARPER J
DATE OF ORDER:
13 JULY 2023
THE COURT ORDERS THAT:
1.Pending further order of the court, the children are to remain enrolled at F School.
2.Pending further order of the Court, the Respondent Mother (“mother”), by herself and her servants and agents, is restrained from enrolling the children, namely X, born 2014, Y, born 2016, and Z, born 2020, in any school other than F School.
3.Orders 1 and 2 are conditional upon the Applicant Father (“father”) paying all amounts for fees and other expenses necessary for the continued enrolment of the children at F School as they fall due or as agreed between him and F School.
4.Orders 1 and 2 are further conditional upon the father undertaking all necessary travel to collect the children from the home of their mother, to deliver the children to school, to collect the children after school and return them to the mother’s home on each school day.
5.In the event that the father fails to satisfy either of the conditions in Orders 3 or 4, Orders 1 and 2 are discharged.
6.Upon any discharge of Orders 1 and 2 in accordance with these orders and pending further order of the court, sole parental responsibility is allocated to the mother in relation to the education of the children.
7.The balance of the Application in a Proceeding and Response are stood over to 11 December 2023.
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 Parsons & Parsons has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J:
These are parenting proceedings between the respondent, Mr Parsons (“father”), and the applicant, Ms Parsons (“mother”). They involve both parenting and property issues at this stage.
The children subject of the parenting dispute are X, born 2014, Y, born 2016, and Z, born 2020.
The parents commenced cohabitation in 2011, after knowing each other for some years, and were married in 2013. They separated on 18 September 2022, when the husband left the former matrimonial home located in Suburb C.
The mother commenced these proceedings on 28 March 2023 in the Federal Circuit and Family Court of Australia (Division 2), seeking spousal maintenance and property adjustment orders. At that stage, she did not seek any parenting orders.
On 14 April 2023, the father filed a response seeking parenting and property orders. In his parenting orders, he proposed that equal shared parental responsibility be allocated to the parents, and orders for the children to live in a week-about arrangement with each parent, with specific orders for special occasions. He also sought the appointment of an Independent Children’s Lawyer (“ICL”).
The older two boys currently attend, and have attended since 2018, F School. The youngest child, who is not yet of school age, is also enrolled at that school.
The children have been enrolled at, and the older two attend, F School because the parents both agreed to F School as the appropriate school when the relationship was intact. The father, himself, attended F School.
The maternal grandmother paid the F School fees up to 7 February 2023.
After that date, a failure to pay the school fees resulted in the school threatening to cease the enrolment of the children unless the fees were brought up-to-date. On 5 February 2023, the mother emailed Ms L, who is the Head of School for F School, in which she referred to the fact of the parents’ separation and raised the issue of the enrolment of the children ceasing because their school fees would no longer be met.
In the email, she referred to discussions with the boys about the necessity of finding a good public school and referred to M School as an institution which had been mentioned by Ms L.
The mother finished the email by saying:
Last year, when [Mr Parsons] left the family, the school had been an unbelievable support to both me and the boys, and the children absolutely love the school. The staff are amazing and it is truly the most wonderful, nurturing school. We will be so sad to leave.
On 6 February 2023, the evidence discloses that the father made arrangements to pay the school fees until the parties resolved their property settlement. There appeared to be no dispute before me that the father has paid the fees up-to-date and has made an arrangement with F School to make monthly payments to keep the fees in order.
On 16 May 2023, Justice Schonell heard and dealt with the mother’s application for spousal maintenance. Parenting issues were not dealt with before him. Justice Schonell ordered that the father pay spousal maintenance in the amount of $1,334.65 per week, and that he pay for the electricity, council rates, water charges, and insurances for the former matrimonial home as they fall due.
On 8 June 2023, the mother’s solicitors sent a letter to the father’s solicitors setting out her intentions to relocate to Suburb N, another suburb of Sydney, with the children and to terminate their enrolment at F School. She advised in that email that she proposed to enrol the children in P School and also stated that she proposed to seek increased spouse maintenance to cover her rent for accommodation in Suburb N.
At that point in time, the former matrimonial home was unsold, although it was common ground before me that the property is to be put to auction in mid-2023. The mother gave evidence that her brother lives in Region K in Sydney, and by moving to Suburb N, she would be closer to family members.
By email response on the same day, that is 8 June 2023, the solicitors for the father made clear that the father did not consent to the children being moved to a different school. His solicitors also notified F School of his position in this regard. The father confirmed that he would pay the school fees. Nonetheless, on the same day also, the mother emailed F School and confirmed to the school that the boys would not be returning in Term 3 2023, and again expressed gratitude for the wonderful nurturing environment of the school.
On 14 June 2023, Ms L made clear to the mother that, in the absence of court orders, withdrawal of students from F School had to be by the written consent of both parents.
On 27 June 2023, the solicitors for the father wrote to the solicitors for the mother, in which the following paragraph appears:
Given that our client is paying all of the school fees for [Y] and [X] (and [Z]), in 2024, no steps are to be taken by your client to enrol the children in another school before an agreement is reached or pending a order of the court. If your client has taken steps to enrol the children in another school, this is then done on the basis of no knowledge or consent of our client. Accordingly, please have your client immediately desist from taking any further steps pending an agreement being reached, or pending an order of the court.
Despite this, it appears clear that the mother went ahead and enrolled the children at P School and caused F School to organise a farewell for them by approaching Ms L face-to-face and informing her that the enrolment of the children was to be terminated. The mother’s solicitors notified the father’s solicitors by letter on 28 June 2023 that the children had already been enrolled in and had begun attending at P School because the F School holidays and state school holidays did not precisely overlap.
In that letter, the solicitors for the mother set out, on instruction no doubt, six reasons why the mother had chosen to move the children to a new school, which appeared as follows:
1.The children are aware that they are starting at [P School] and are excited about it. My client is eager to ensure that the children's transition from [F School] to [P School] is a smooth one.
2.My client did not make the decision to enrol the children at [P School] lightly. My client conducted extensive research as to the best public schools in [Region K] and sought and secured rental accommodation in the area with the best public school according to her extensive research, being [P School]. My client understands that [P School] has a reputation for being a small and nurturing school which my client contends caters to the children's needs. Your client was aware from paragraph 73 of my client's Affidavit filed in these proceedings on 23 May 2023 that my client was looking for a rental property in [Region K].
3.My client observed that the children did not display any negative feelings towards Friday, 23 June 2023 being their last day at [F School].
4.The children no longer participate in any extra-curricular activities in the [Suburb C] area as your client withdrew all financial support for these activities.
5.His Honour Justice Schonell noted at paragraph 48 of his Judgment of 16 May 2023 that there was merit to the submission that the payment of school fees in the sum of $692 per week was an item of expenditure that could be cut back.
6.As deposed by my client at paragraph 68.9 of her Affidavit filed in these proceedings on 23 May 2023, your client notified my client that he expects her to pay half of the [F School] fees commencing 2024. My client is simply not in a financial position to do so.
Part of the reason why the mother claims she moved the children’s school was that the father had informed her on 17 April 2023 that he expected her to pay half the F School fees commencing in 2024. She also claimed that she observed that the children did not display any negative feelings towards Friday 23 June 2023, being their last day at F School.
The father corresponded with P School, making clear he had not agreed to the enrolment of the children there. However, the school took the view that they would receive the children’s enrolment in accordance with the wishes of the mother.
On 30 June 2023, the father then filed an Application in a Proceeding seeking a range of parenting orders, including orders for the children to remain at F School, and the mother filed a Response on 11 July 2023, seeking orders which would permit the enrolment at P School to remain in place.
The schooling issues were listed before me on an urgent basis on 13 July 2023, because, absent orders of the Court to the contrary, the children will commence school for Term 3 on Monday, 17 July 2023 at P School.
These reasons have been delivered ex tempore on 13 July 2023 and they deal, therefore, only with schooling.
The parties identified the material to be relied upon in their respective case outlines. The father relied upon a Notice of Child Abuse, Family Violence, or Risk filed on 14 April 2023, and his Application in a Proceeding and accompanying affidavit, both filed on 30 June 2023. The mother relied upon her Response to Application in a Proceeding and accompanying affidavit, both filed on 11 July 2023.
Orders about schooling are parenting orders and therefore, the statutory pathway must be followed, including mandatory consideration of all the facts set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”). Following the authorities in Banks & Banks (2015) FLC 93–637 and Tibb & Sheean (2018) 58 Fam LR 351, I have given consideration to all those factors but will discuss only those which have been raised as issues by the evidence and argument of the parties. I note that, by reason of s 61D of the Act, it is necessary to apply a presumption of equal shared parental responsibility when making a parenting order unless it is inappropriate at an interim stage. I am satisfied it is inappropriate to apply that presumption at present. The question of the allocation of parental responsibility is something that will be considered at a later date and is specifically raised by the competing applications of the parties.
Schooling and the matters which might be relevant to a determination of a dispute in regard to schooling have been considered in a number of authorities. The leading authority is Re G: Children’s Schooling (2000) FLC 93-025. In that decision, the Full Court expressed a conclusion in the following terms:
91. Our ultimate view, having regard to the evaluation to the schooling proposals in these matters is that the wife should be permitted to enrol the children at [School B]. Like the trial Judge, our view is not an assessment of the relevant merits of the schools preferred by the parties. In the exercise of our discretion, we think that the wife’s acknowledged greater understanding of the children tempers concerns about the consequences of change upon these children and bolsters the weight we should place upon her assessment of the benefits to the children from a change of schools.
92. In addition, we think there is considerable substance to arguments on her behalf that weight should be given to the travel commitments associated with the school that the children attend. Where a decision must be made by a Court in circumstances where parents are unable to agree as between two schools, which are prima facie very satisfactory, we see advantages to the children attending a school which is closer to the children’s residence. In terms of the practical fulfillment of parenting obligations, it is desirable to enhance the ease with which a parent who assumes the bulk of day to day responsibility can meet the multiple associated demands of children’s dependence on a caregiver for transport, participation and security. We do not consider that the fact of a prior agreement between the parties as to [School A] carries much weight in the changed circumstances of the family.
More recently, in Bilts & Broigalman [2013] FamCA 578, Austin J expressed the following views:
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]).
As I have already pointed out, there appeared to be no dispute that the children have been very happy at F School, and it is the common view of the parents that it is a very good and nurturing school. There is also no dispute that the children currently live with the mother, and at present, she is likely to have the greater level of intimacy with them by reason of the fact they see their father at the moment once a week only for four hours on a Saturday, supervised by the mother. I repeat though that the father is seeking equal shares parental responsibility and ultimately a week about care arrangement.
There was no evidence or argument about the relative merits of either school, although, clearly, the lived experience of F School has been positive for the children whereas their experience of P School, to the limited extent that has taken place, can hardly form the basis of any firm view.
The father argued that the children should not suffer further disruption in their lives by a change of school at this stage. The parents have engaged Mr Q to produce a family report and that interviews are scheduled to take place in October 2023. Furthermore, a registrar has ordered Family Dispute Resolution to take place but not before 4 December 2023. The father submits that any decision on a change of school should await completion of those processes when the parties will be better informed and have had the benefit of some interaction with experts. He also somewhat stridently pointed out that the mother’s change of school had taken place unilaterally and clearly without the consent of the father, whose resistance had been made plain to her before the change took place.
The practicalities of the distance between the mother’s home and F School and implicitly the father’s home, which is now located in Suburb R, were important in the argument and evidence of the parties.
The father gave evidence that he has flexible work arrangements, which would allow him to collect the children from the mother’s home for school and return them to the mother’s home in the afternoon and he is extremely happy to do so.
The mother gave evidence that the travel time between her home and F School was arduous for the children. She disputed the father’s evidence that the time between Suburb N and F School is about 35 minutes. At paragraph 102.8.4 of her affidavit filed 11 July 2023, she said:
…The distance between the [Suburb N] property and [F School] is approximately 35km. In minimal traffic, the drive is approximately 50 minutes. Moreover, the trip requires me to take [S Street], [T Street] and / or [U Street], all of which are busy main roads, especially around school drop off and pick up times. It takes me over an hour each way to get to [F School] from the [Suburb N] property.
I note here that the mother, according to her evidence, works one day a week and that the youngest child, Z, is cared for by her on the other days of the week.
The mother also argued that she is entitled to live where she chooses and I accept this is correct (AMS v AIF (1999) 199 CLR 160; U v U (2002) 211 CLR 238; Adamson & Adamson (2014) FLC 93-622 at [65]–[66]), subject, of course, to both parties complying with any orders of the Court.
It seems to me that, in circumstances where the father has given evidence that he is prepared to undertake the burden of all of the travel, the difficulties which this has or may have imposed upon the mother in the past are neutralised. She also claimed that, if some emergency arose during school hours, she would have to drive for two hours, an hour each way, to deal with it while caring for the youngest child but, again, the father, who, as I say, lives in Suburb R, again, has made clear he is content to deal with any school emergencies that arise during a school day, such as the sudden onset of illness in one of the older children.
It was also an important part of the mother’s case that she argued that private school fees were, in the financially stressed circumstances of the parties, an extravagance, which the parties could no longer afford since the maternal grandmother had ceased providing the funds to pay for the school fees. However, there was no dispute before me that the father has taken over the responsibility for paying the school fees, at the moment at any rate, and they are up to date. The mother also contended that the father was using school fees to deny her proper payment of an administrative child support assessment. This may or may not be true. I am unable to form a certain view about this at present.
It was also undisputed that the apparent offset of payment of school fees by the father against his liability for the administrative assessment has been the subject of an objection by the mother and which is currently being considered by the child support agency. In those circumstances, it seems to me that I must let those processes take their course and I am unable to form a view as to the correctness of the mother’s submission.
I note in her evidence also that the mother claimed that the children love their new school, its uniform and their friends, which they may have made. I am unable to form a view about the correctness of this evidence at an interim stage but I note that, according to the father, the oldest child, at least, has expressed the view to him that he does not wish to change schools.
On balance and bearing in mind that this schooling dispute has had to be the subject of urgent consideration, I am persuaded that the children should not be subjected to another major change in their lives so quickly on the heels of an acrimonious parental separation and a move from Suburb C to Suburb N. A change of school would be the third revolution in their young lives in a short space of time. It means that they would be compelled to leave a school which, everybody agrees, has been nurturing and supportive and which they have loved attending. I infer they must also have some group of friends at F School which a move from there would result in them relinquishing, to some extent. It seems to have been clear also that the children have been happy and settled at F School until the separation of their parents.
I am not satisfied that the distance between F School and the mother’s home is a factor which weighs, in the circumstances of this case, in favour of the children moving to P School. Indeed, the distance between F School and the mother’s home is no greater than many children travel to and from school in metropolitan Sydney.
It is also, in my view, a relevant factor that time in the car with their father is likely to be of benefit to the children in helping to prospectively maintain their meaningful relationship with him, since it is common ground that the children have a meaningful relationship with both their parents at present.
I also observe that it is unfortunate that the mother chose to enforce a change of schools unilaterally in the face of the father’s clear resistance, in circumstances where proceedings were on foot and the parties had made sensible arrangements to obtain expert evidence and engage in family dispute resolution thereafter.
I am persuaded that it is appropriate to make orders which would cause the children to remain at F School for the balance of 2023 on the condition that the father continues to meet the school fees and undertakes the burden of all necessary travel.
I point out that the ongoing question of schooling after 2023 can be one issue which can be considered in Mr Q’s report and negotiated in the process of family dispute resolution. It seems to me appropriate to make orders only pending further order of the Court in those circumstances. After the report of Mr Q and family dispute resolution, the parties will be better informed and will be in a better position to make a measured decision about schooling in the best interests of all their children.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Harper delivered on 13 July 2023. Associate:
Dated: 24 July 2023
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