PEAK & CASTLES

[2018] FCCA 3705

FEDERAL CIRCUIT COURT OF AUSTRALIA

PEAK & CASTLES [2018] FCCA 3705

Catchwords:
FAMILY LAW –  Parenting – dispute about secondary college child shall attend.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

Re G:Children's Schooling  [2000] FamCA 462

Blitz & Breugelman [2013] FamCA 578
In the marriage of  Pasio (1978) 26 ALR 132

Applicant: MR PEAK

Respondent: MS CASTLES

File Number: MLC 4617 of 2012

Judgment of: Judge Williams

Hearing date: 2 November 2018

Date of Last Submission: 2 November 2018

Delivered at: Melbourne

Delivered on: 14 December 2018

REPRESENTATION

Counsel for the Applicant: Mr Carilile

Solicitors for the Applicant: Doherty & Colleagues Pty Ltd

Counsel for the Respondent: Mr Duckett

Solicitors for the Respondent: n/a

ORDERS

1. The parties do all acts and things necessary to enrol the child [X] at School 1.

2. [X] attend School 1 for his secondary education, commencing Term 1 2019, unless otherwise agreed in writing.

3. All extant application are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Peak & Castles is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 4617 of 2012

MR PEAK

Applicant

And

MS CASTLES

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is the father and the respondent is the mother of the children [X] born 2006 and [Y] born 2008  (“the children”).

2. The parties are in dispute about the school [X] should attend for his secondary education.

Issues in Dispute

1. The following issues were in dispute in the proceedings:

   i)should [X] attend School 2, as proposed by his father;

   ii)should [X] attend School 1, as proposed by his mother.

Synopsis

1. I have determined that it is in [X]’s best interests that he attend School 1.

2. The reasons for my determination follow.

Background

1. Due to the limited nature of the dispute it is not necessary to comprehensively traverse the relevant factual background.

2. The parties commenced cohabitation on 1997 and married on 2001.

3. [X] was born on 2006 and [Y] was born on 2008.

4. The parties separated on 12 January 2011 and divorced on 12 July 2012.

5. Subsequent to separation, the children have remained living with their mother and spend substantial time with their father, by agreement between the parties.

6. Until February 2014 the mother lived in Suburb A.  [X] attended School 3 in Suburb A. [Y] was not of school-age.

7. In 2014 the mother purchased a property in Suburb B and moved in 2014. [X] then commenced school at School 4 in Suburb B.  [Y] also commenced at School 4.

8. The father asserts that the mother did not provide him with any prior notice of her intention to move and enrolled [X] without his consent.  He did not commence any proceedings as a result of the mother’s move to Suburb B.

The proposals of the parties

The applicant father’s proposal

1. The orders which the father seeks from the court are set out in his Trial Affidavit.

2. They may be summarised as follows:

   i)[X] attend School 2 for his secondary education, commencing term one 2019;

   ii)The father pay for “most” of the  educational costs;

   iii)The mother pay 50% of the uniform cost, 25% of textbooks and stationery and 50% of any overseas trips during the children secondary schooling[1]

   [1] paragraph 28 of the father's affidavit sworn 20 May 2018

The respondent mother’s proposal

1. The orders which the mother seeks from the court are set out in her Response to an Application in a Case.

2. They may be summarised as follows:

   i)[X] attend School 1 for his secondary education, commencing term one 2019.

Documents relied upon by the applicant father:

1. The father relied upon the following documents:

   i)Application in a Case filed 21 May 2018;

   ii)His affidavits sworn 18 October 2018 and 26 October 2018;

   iii)Special Issues Report of Ms D dated 8 October 2018 filed on 19 October 2018.

Documents relied upon by the respondent mother:

1. The mother relied upon the following documents:

   i)Response to an Application in a Case filed 18 October 2018;

   ii)Her affidavits sworn 18 October 2018 and 27 February 2018.

2. The following documents were tendered by the parties and received into evidence.

Exhibit Number	Document	Tendered by
M1	Print Out School 2	Mother
M2	Emails between the parents	Mother
F1	Emails from Ms E	Father
F2	Emails between parents commencing 25 Aug 2018	Father

Evidence

1. The standard of proof in this case is the balance of probabilities (s.140 Evidence Act 1995 (Cth)).

2. Section 140 of the Evidence Act 1995 (Cth) provides:

   (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a) the nature of the cause of action or defence; and

   (b) the nature of the subject- matter of the proceeding; and

   (c) the gravity of the matters alleged.

3. The father and the mother relied upon their respective affidavits. The affidavits recounted the history of the parties’ relationship pertaining to schooling and other parenting matters. I have examined that evidence and do not propose to repeat it in these reasons.

4. Both the father and the mother gave evidence and were cross-examined. I therefore had the immeasurable benefit of observing both parties in the witness box and their demeanour in court throughout the proceedings.

5. The father’s evidence during cross-examination was measured and responsive.  He answered questions directly, even when adverse to his interests and he impressed me as truthful and a committed parent.

6. The wife’s evidence during cross-examination also impressed me as truthful. Her demeanour was respectful and appropriate, and she answered questions directly. She did not attempt to embellish her answers to assist her case and she too impressed me as a loving and committed parent.

Preliminary Matters

1. The father’s Outline of Case document, in addition to [X]’s secondary schooling, referred to two additional issues, namely:

   i)a proposed change of the existing overnight alternative Thursday to a Friday night;

   ii)change over location.

2. At the commencement of the trial, I clarified with Counsel for the father that the only issue for determination was [X]’s secondary education.

The Applicable Law

1. Part VII of the Family Law Act 1975 (Cth.) sets out the provisions relating to children. Section 60B sets out the objects of the act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the act sets out how court is to determine what is in a child’s best interests.

2. There was no dispute between the parties about either of the primary considerations of the Act.  Both parents accepted that [X] and [Y]:

   i)have an excellent relationship with their parents;

   ii)there are no protective concerns in the care of either parent.

3. In relation to disputes about schooling, the leading authority is Re:G. (2000) FLC 93-025.

4. In Blitz & Breugelman [2013] Fam CA 578 at [81]- [83] Austin J said:

   [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]).

5. The factors advanced on behalf of the father as to why [X] should attend School 2 may be summarised as follows:

   i)a private school education is inherently preferable to a government school education;

   ii)he was fortunate to have received a private education and he is aware of the long-term life benefits of same and wants to afford his children the same opportunity;

   iii)a private education would provide [X] with routine, structure, discipline and support;

   iv)the fees at School 2 are substantially less than other private schools, and are within the financial capabilities of the parties;

   v)during the marriage the parties had agreed that [X] would attend School 5, a non-government private school;

   vi)the parents are currently unable to afford the fees at School 5, and School 2 is an appropriate substitute to enable [X] to benefit from a private education;

   vii)the school is located relatively close to the father’s home in Suburb A, which is currently being renovated, and where he will shortly commence living;

   viii)the travel from the mother’s home to the school is eminently achievable by public transport;

   ix)during negotiations the mother agreed for [X] to attend School 2;

   x)he would pay all of the school fees, 40% of the uniform costs, 25% of text books and stationary and 50% of any overseas trips during their secondary education.

6. The factors advanced on behalf of the mother as to why [X] should attend School 1 are as follows:

   i)school 1 is a co-educational school and co-educational schools teach children to understand and relate to both sexes in a much better way than single sex schools;

   ii)single sex schools, such as School 2 can develop toxic cultures arising from male chauvinistic attitudes which laud Australian rules football and the machismo culture associated with the sport;

   iii)School 2 has a strong football culture and tradition, and [X] should not attend a school which elevates sporting achievements over academic achievements;

   iv)the football culture is not a good fit for [X];

   v)the mother is an atheist, the father is not religious, and [X] has not been baptised nor received any religious instruction;

   vi)School 1 has no religious affiliation, as students are not required to attend religious services nor receive any formal religious education;

   vii)School 2 is a Catholic school with an intensive religious education program, including five classes of religious instruction per fortnight from years 7 to 9 and 3 classes per fortnight in year 10;

   viii)[X] should not be overtly or subtly pressured into adopting the Catholic faith, nor be placed in a situation where he might have to hide his lack of belief in Catholicism or religion;

   ix)during the marriage, neither parent intended for the children to have a religious upbringing or education;

   x)She would and could not support the school’s requirement that parent’s must commit to support the religious ethos and activities of the college

   xi)School 1 has a respectable academic record;

   xii)School 1 is approximately 500 metres from where the mother has lived for the past four years and is within walking distance of her home;

   xiii)many of [X]’s friends from School 4 will attend School 1.  This will enable [X] to continue with his existing friendships and support groups, which will enable a smoother transition from primary to secondary school;

   xiv)She is unable to drive [X] to Suburb C and travel by public transport would take [X] approximately one hour each way;

   xv)She cannot afford to contribute to private school expenses for [X], as proposed by the father;

   xvi)the father had previously agreed for [X] to attend government schools, namely School 6 or School 7, however, the mother’s home is not within the catchment zone for either school;

   xvii)the paternal grandmother and aunt both attended School 1 and the family has a connection with the school.

7. Neither parent adduced evidence that either school was not prima facie satisfactory.  Likewise, there was no evidence of the father that School 1 would be inherently unsatisfactory for [X].  As the Full Court remarked in re G: Children’s Schooling (supra) at paragraphs [91]-[92], there is little utility in analysis of the benefits of each school when both are satisfactory.

8. I will address each of the matters referred to in paragraphs 33 and 34 in the context of the relevant additional considerations set out in s.60CC (3) of the act.

9. In my view the relevant considerations are those prescribed by ss.60CC(3) (a), (c), (d), (e), (g), (i), (l), and (m) of the Act.

Section 60CC(3)(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

1. There was no evidence of [X]’s views, other than that referred to in the report of Ms D.

2. At paragraph 64 of the report, Ms D states:

   In relation to the issue of his secondary education, [X] indicated he held no preference in relation to which school he attended as he did not wish to upset either of his parents. 

Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i)         to participate in making decisions about major long-term issues in relation to the child; and

(ii)    to spend time with the child; and

(iii)  to communicate with the child

Participation in making decisions about major long-term issues in relation to the children

1. Prior to separation both parties agreed that [X] should attend School 5 for his secondary education. [X] was enrolled at School 5 at a very young age.

2. Post separation, neither parent had the financial capacity to educate [X] at School 5, despite both of them expressing a preference for this school, had it been financially possible.

3. The father was critical of the mother having unilaterally relocated from Suburb A to Suburb B, some four years ago.  That move necessitated a change of primary school for [X].  At that time, [Y] did not attend school.  He complained that the mother had not consulted him about her proposed relocation, nor about the enrolment of the children in School 4.

4. Despite the unilateral move, the father did not institute any proceedings at that time and the parties managed to negotiate parenting arrangements for the children without court intervention until the current dispute.

5. Apart from the mother’s move to Suburb B in 2014, there were no allegations that either party failed to participate in making decisions about long-term issues in relation to the children.

6. Indeed the evidence of both parties was that they had been actively negotiating [X]’s secondary school for quite some time prior to and during the current proceedings.  Various options were proposed and partially agreed to, however the parties were unable to reach a final agreement that was satisfactory to both.

Opportunity to spend time with and communicate with the children

1. Post separation both parties have sought to spend as much time as possible with the children.  This consideration is not particularly germane to the current dispute.

Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)         either of his or her parents; or

(ii)        any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. [X] has lived in his mother’s household in Suburb B since 2014.  He has attended school in the local community and has been immersed in local sporting and extra-curricular activities.

2. He has made many friends at the local school and according to the mother, many of them will progress to School 1 for their secondary education.  She is unaware of any of his friends who are likely to attend School 2.

3. The mother’s evidence is that progressing to a local secondary school with his friends will alleviate any anxiety [X] may have about progressing to secondary school and will assist a smooth transition for him.

4. This consideration is further discussed at paragraphs 84 and 88 hereof.

Section 60CC(3)(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

1. The parties have resolved the children’s living and spend time with arrangements without recourse to litigation, although there had been a number of disputes.

2. [X] will remain living with his mother and will continue to spend substantial and significant time with his father, irrespective of which school he attends for his secondary education.

Section 60CC(3)(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

1. The maturity, lifestyle and background of the children and parents is relevant to the dispute. I will address these factors in the context of religion, co-education and [X]’s anxieties.

Religion

1. The father was raised as a Christian and attended a private grammar school. His evidence was that he is not religious and does not attend church or any other worship. The mother attended a Catholic school and does not have particularly high regard for that school. She is an atheist. Neither [X] nor [Y] have been baptised or received any religious education. Neither the parents nor the children identify as Catholic.

2. To date [X] has attended a co-educational government primary school.  That has been by agreement of the parties.

3. The father’s proposal for [X] to attend School 2 would result in [X] receiving significant religious instruction and being immersed in the Catholic faith.

4. When cross-examined by counsel for the mother, it became apparent that the father had not made any enquiries about the religious requirements of the college and extent of mandatory religious instruction.  He was unaware that students in years 7 to 10 are required to attend five classes of religious instruction each fortnight.

5. The mother’s affidavit, at paragraph 4 (c) refers to the schools religious environment.

6. He also seemed unaware that the college “Acceptance Agreement”, which was annexed to his affidavit of 18 October 2018, requires parents to agree to support the religious ethos and activities of the College.  He did not seem to have considered that the mother, as an atheist, would most likely have considerable difficulty in supporting the schools religious ethos.

1. The mother’s evidence under cross-examination was that she would not:

   i)sign the college “Acceptance Agreement”;

   ii)promote the religious ethos and activities of the college.

2. There was no evidence whether School 2 would indeed accept [X], if they knew his mother was an atheist and not prepared or unable to support the religious ethos and activities of the college.

3. Although this is not a dispute about [X]’s proposed religion, [X]’s future religious practices are an integral factor of the school proposed by the father. There is significant authority that courts should retain a neutral position in religious disputes. The starting point must be the comments of the Full Court in In the marriage of  Pasio (1978) 26 ALR 132:

   “An Australian court, cannot commence with any premise that as a matter of public policy one religion is to be preferred to another or that a religious upbringing is to be preferred to a non-religious one”

4. The impact of a religious education must be considered in the context of determining [X]’s best interests.

5. The dilemma for [X] is that if he were to attend School 2, he would be caught in a situation where he would be acutely aware of his mother’s views about religion, whilst receiving intensive religious instruction, contrary to her beliefs.

6. Furthermore, even the father, who has proposed the school, does not share the religious ethos of the school. It would be highly unlikely that [X] would be unaware of his father’s lack of religious conviction.

7. This may well lead to difficulties and conflicting loyalties for [X].  His everyday life at school would be in stark contrast to his home life in both households. Two possible alternatives are:

   i)[X] will accept and be immersed in the Catholic faith, which is in opposition to his parent’s beliefs; or

   ii)He will fail to embrace or indeed reject the Catholic faith, which would be contrary to his fellow students and the ethos of his school.

8. The mother succinctly expresses her concerns at paragraph 4 (c) of her trial affidavit as follows:

   I consider myself an atheist and don’t want the children to adopt Catholic views or feel they have to hide from their teachers and peers the fact that they don’t believe in Catholicism.  I don’t want [X] and [Y] to feel or actually be out of place in the school environment.

9. The possibility of [X] feeling displaced in his school environment is an important consideration as to his best interests.

Co-education

1. As previously referred to, during the marriage, and until it became apparent the parties were unable to afford School 5, neither parent was of the view that [X] should attend a Catholic college.  This was the joint decision of [X]’s parents.

2. Remarkably, and to the enormous credit of the parents, prior to the current proceedings, they had been able to reach agreement as to the living, spend time with, religious and educational issues affecting both [X] and [Y].

3. For the whole of his education, [X] has attended a co-educational government primary school.  The father was obviously aggrieved by the mother’s unilateral decision to move to Suburb B, however he did not dispute that [X] should attend a local government co-educational school, School 4.  Similarly, he did not object when [Y] was enrolled at the same school.

4. School 5 is an Anglican co-educational private school, and was the parent’s first choice for secondary education for their boys.

5. Both parents impressed me as committed, loving and devoted and I have no doubt that the decision to enrol [X] at a co-educational school was made jointly and embraced by both parents.

6. The mother has raised concerns about [X]’s proposed education at a single sex school, which she says was never anticipated nor agreed to by the parents during the relationship.

7. Her evidence is that co-educational schools teach children to understand and relate to both sexes in a much better way than a single sex school.  She is of the view that it is important for boys to learn to respect and develop friendships with girls and that is an essential life skill best learnt at a formative age.  She is opposed to what she describes as the possibility of a toxic culture developing at a single sex school, and in particular one that enthusiastically adopts and lauds the culture of Australian Rules football. 

8. Other than his belief that School 2 does not have a male chauvinistic culture, the father’s evidence did not address the benefits or otherwise of co-education as opposed to single sex education.

[X]’s anxieties

1. Both parents refer to [X]’s anxieties, which he has experienced subsequent to his parent’s separation.

2. The mother’s evidence is that:

   i)a significant number of [X]’s friends from School 4 will attend School 1;

   ii)the continuity of friendships and support will assist [X] transition from primary school to secondary College;

   iii)She is unaware of any of [X]’s friends or classmates who will attend School 2;

   iv)[X] has engaged in the local community in his extracurricular activities, and that will enable him to continue to socialise and be engaged with his friends in his neighbourhood.

3. The father’s evidence did not specifically address the benefits of [X] attending school in his local community.

4. However, at paragraph 35 of his trial affidavit, in the context of what he thought was a possibility of relocation by the mother from Suburb B, he identifies that [X], and [Y], have made many friends and established good relationships in the Suburb B community over the past 4 ½ years.

5. He states that he does not believe that removing the children from that environment is in their best interests.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. I refer to the financial responsibility for [X]’s educational costs at paragraphs 95 – 99 hereof.

Section 60CC(3)(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

1. In the majority of parenting disputes, it is preferable to make orders least likely to lead to further proceedings.  In this matter, [X]’s secondary schooling needs to be determined so that he can have certainty and stability about his future educational arrangements.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant

Practicalities of travel

1. There was evidence from both parents about the practicalities of [X]’s attendance at School 2.  Additionally, the mother’s evidence addressed the proximity of School 1 to her home.

2. The father’s evidence about the travel is in paragraph 49 of the father’s trial affidavit.  That evidence may be summarised as follows:

   i)the father’s home in Suburb A, which he hopes to move into in the second half of 2019, is a short distance from School 2;

   ii)the mother could collect [X] from the father’s home, should she choose, on nights the children are in her care;

   iii)alternatively, [X] could catch public transport including train and tram, and the father would be responsible to fund the costs;

   iv)public transport would involve a train trip from Station 1 to Station 2, which the father estimates is a 17 minute journey, a tram ride from Station 2 to School 2, which he estimates is a four minute journey;

   v)the mother should drive [X] to Station 1 each morning from her home.

3. The mother’s evidence about travel is in paragraph 4 (k) of her trial affidavit.  That evidence may be summarised as follows:

   i)a 4 minute walk to a bus stop;

   ii)a 15 minute bus trip from the bus stop followed by a six minute walk to Station 2;

   iii)a 23 minute train trip from Station 2 to Station 1;

   iv)a 4 minute walk to a tram stop;

   v)an 8 minute tram ride to School 2;

   vi)total travel time of approximately one hour each way.

4. The mother gave credible evidence about why she may not be able to drop [X] at Station 1 each morning.

5. According to the mother, School 1 is located 500 metres from her home and [X] would be capable of walking or riding his bike to school for 8 of 10 school days per fortnight, when [X] is in her care.

Prior Agreements as to [X]’s schooling

1. During the course of the litigation, the parents have been attempting to negotiate a resolution of where [X] will commence his secondary education.

2. The parties originally proposed that [X] would attend School 5, a co-educational private school for his secondary education.  That is no longer possible due to financial constraints.

3. The father alleges that the mother, during the course of negotiations, agreed for [X] to attend:

   i)a Catholic College, School 8, which is situated near to her home, and which is a “feeder” school for School 2;

   ii)School 9, which is also a Catholic College.

4. The mother’s evidence was that:

   i)She only agreed to that proposal for School 9 on the basis that [X] would attend School 5 for years 10, 11 and 12;

   ii)She also only agreed to various proposals for the purposes of resolving the litigation, prior to commencement of the trial;

   iii)She was influenced to some extent by a friend of the father’s new wife, Ms E, who had experience in in the educational sphere, and who had apparently suggested that a transition at year 10 would be appropriate.

5. The father submits that the mother is disingenuous and insincere in her opposition to School 2, because she previously agreed for [X] to attend Catholic schools. I do not accept that submission.

6. Both parties agreed that [X] attending School 7 or School 6 was acceptable to both parents.  However the mother’s home in Suburb B is not within the catchment zones for either school, and she was not prepared to move into either school zone.  The father was also not prepared to move into the catchment zone for either of these schools.

Cost of the respective schools

1. The father’s proposals about the cost of the school fees at School 2 varied.  At paragraph 24 of his trial affidavit, the father proposes that he would meet the cost of the schooling.  However at paragraph 46 of his trial affidavit his proposal is that he would pay 100% of school fees, 40% of uniform costs, 25% of textbooks and stationery and 50% of any overseas trip during his secondary education.

2. The father did not give any evidence as to whether or not he would apply for a departure from administrative assessment of child support on the basis of his additional educational costs for [X].

3. The mother’s evidence was that she was unable to afford to contribute to the private school fees at School 2.  She estimates that the school and associated costs would be a proximally $15,000 per student per annum, excluding the costs of overseas travel.

4. In comparison, her evidence was that the tuition fees at School 1 are $700 per student per annum. Additionally there are sport and school uniform costs of $1000, sports Academy costs of $1000 and excursions of $500.  She has already purchased [X]’s laptop at a cost of $1300.

5. At paragraph 5 of her trial affidavit, the mother deposes that the father had not contributed to the children school expenses for the past four years, or since they had commenced schooling at School 4. She estimates that she has spent approximate $10,680 over the past four years for children’s schooling expenses.

Conclusion

1. As previously referred to in these reasons, there was no suggestion that either School 2 or School 1 were unsatisfactory schools, although the father’s position was that School 2 is superior to School 1.

2. I have considered the evidence of each of the parties, and the factors advanced on their behalf as to why [X] should attend the respective schools they each propose. I have also considered the previous agreements in the context in which the agreements were reached.

3. I do not consider that it could possibly be in [X]’s best interest to place him in a school profoundly at odds with his mother’s atheism and his father’s lack of religious conviction.

4. It is apparent that two capable and devoted parents made a decision during the relationship that their child would not be baptised nor subject to any religious education.  To immerse him in a school where there is a heavy commitment to and immersion in a religion neither part parent follows, would only lead to potential confusion and problems for [X].

5. The father did not seem to make enquiries about the religious expectations of the school nor consider the possible consequences for [X] being immersed in a religious environment, completely contrary to his mother’s wishes and beliefs.

6. The father’s proposals for [X]’s travel are unrealistic and onerous, when compared to the proximity of School 1 to his home.

7. As the full court observed in Re G: Children’s Schooling (supra) at  paragraph [92]:

   [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.

8. That statement is particularly pertinent to the current dispute, which involves evidence about both a prior agreement and travel requirements.

9. I have also had regard to the financial aspects of [X]’s attendance at School 2. I accept the mother’s evidence that she is unable to meet the additional costs of his attendance at School 2 and, given her attitude towards the school and its ethos, would find it very difficult to do so.

10. The benefits for [X] attending a school in close proximity to his mother’s home and with his friends and children with whom he has attended school for the last five years are considerable. 

11. I intend to make orders that [X] attend School 1 for his secondary education and consequential orders enabling his enrolment to proceed forthwith.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge Williams

Date: 14 December 2018