Pickford and Pickford

[2016] FCCA 3178

FEDERAL CIRCUIT COURT OF AUSTRALIA

PICKFORD & PICKFORD [2016] FCCA 3178

Catchwords:
FAMILY LAW – Interim parenting – child’s schooling – which school is more appropriate for the child to attend – section 60CC factors – best interests of the child – where weight is given to the child’s views.

Legislation:

Family Law Act 1975, s.60CC

Cases cited:

Beard & McCarthy [2009] FamCA 737

Applicant: MS PICKFORD

Respondent: MR PICKFORD

File Number: MLC 5664 of 2016

Judgment of: Judge McNab

Hearing date: 6 December 2016

Date of Last Submission: 6 December 2016

Delivered at: Melbourne

Delivered on: 7 December 2016

REPRESENTATION

Counsel for the Applicant: Ms Harris of Counsel

Solicitors for the Applicant: RNG Lawyers

Respondent in Person

ORDERS

1. Each of the husband and the wife forthwith do all acts and things and sign all documents necessary to enrol the child X born (omitted 2004 (“the child”) in the School A in (omitted) in Victoria to commence Year 7 in 2017.

2. The wife have leave to amend her initiating application filed
   22 June 2016.

AND THE COURT NOTES THAT:

1. The wife seeks this order without prejudice to any further amended application she may make in these proceedings.

2. The wife will meet the costs of the fees for the child to attend School A pending any determination of financial and child support issues by the Court.

3. The matter remains listed for final hearing on 26 July 2017 at 10.00 am before Judge Curtain in Melbourne (with an estimated hearing time of 2 days).

4. Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judge McNab delivered this day will for all publication and reporting purposes be referred to as Pickford & Pickford.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5664 of 2016

MS PICKFORD

Applicant

And

MR PICKFORD

Respondent

REASONS FOR JUDGMENT

DELIVERED EX-TEMPORE

1. This matter concerns an application in relation to the child

   
   

   X (“the child”) born (omitted) 2004, aged 12.  She is one of three children. Her siblings, Y born (omitted) 2006 and Z born (omitted) 2008 are aged 10 and 8 respectively. 

2. The application was heard in the Duty List on 6 December 2016.

3. Ms Pickford (“the mother”) and Mr Pickford (“the father”) are the parents of the child. The parents commenced a relationship in 1999 and married on (omitted) 2001. They separated in August 2015. The father moved out of the marital home upon separation and currently resides in (omitted) Victoria with his partner Ms Y.

4. Both parents reside in the same street in (omitted), approximately nine houses from one another. The application arises from the inability of the parents to agree on the appropriate schooling for X, who will be going into year 7 next year.

5. The Court approaches this with some caution, having regard to the comments of Cronin J in the decision of Beard & McCarthy [2009] FamCA 737 at [87], where he said:

   Schooling is a decision for parents rather than the court. Parents have an equal shared parental responsibility until otherwise ordered, and that responsibility brings with it all the decisions required of parents. The emphasis in Part 7 of the Act is on parents working out these decisions in a consultative way, because they know best their children’s needs and how to best promote their development. A Court should be reluctant to intervene unless the parents, or either of them, lose sight of the focus of those developmental needs. A parent in that case might be more concerned with their own needs, including a desire to continue the battle.

6. I raised concerns before embarking on the exercise of hearing the matter that I was in effect being asked to act in locus parentis for this child, when I have not had any proper ability to assess the child; what her needs are; what her particular interests are; and what the particular qualities that the schools that have been proposed offer. Notwithstanding that, this couple seem to be incapable of making an agreement, and it unfortunately falls to the Court to make a decision on their behalf. 

7. As mentioned earlier, both parents reside in (omitted). The wife relies on an affidavit of 16 June 2016 and an affidavit of 1 December 2016.

8. The material which was filed in the affidavit of 16 June 2016 regarding the choice of school and the competing schools in this matter are School A, which is in (omitted), and School B. School A is located approximately 6.2 kilometres away from the residence of both parties, whereas the School B is approximately 15 kilometres away. 

9. The affidavit material filed on behalf of the wife deposes to the fact that X is an anxious child who has not coped particularly well with the separation of her parents.[1]

   [1] Affidavit of Ms Pickford sworn 16 June 2016 at [39.3]

10. Initially the mother’s objections to the child attending a school in (omitted) emphasised that the father was residing in (omitted) and the trip from (omitted) to (omitted) would be simply too long, create problems for the family and the child, and not be in her best interests. That has fallen away, because the father has moved to (omitted). 

11. The mother has deposed to the fact that both parents had attended School A for the purposes of assessing the school. There was an application made for X to attend the school in 2017. She says that in effect, that was the school that was discussed as the appropriate school to send X to, and she remains of the view that the educational and extracurricular choices offered by the school would benefit X. She points to the fact that the school is reasonably convenient to where they live and is close to public transport. 

12. The father on the other hand says that there was never any particular agreement for X to attend School A; the choice of school was not particularly important; and the fact that it is a (omitted) school is of no great consequence in relation to the family. The father says that they are not particularly devout (omitted) and it is not a matter of great moment that it is a (omitted) school. He asserts that the quality of education offered by the school in (omitted) is superior and points to results published on the internet, NAPLAN and My School sites. 

13. He also says that the burden of the school fees which are in the sum of about $6000 per annum are an unnecessary burden and will become a greater burden if all three children attend the private school. The father is employed with the (omitted) and is earning approximately $160,000 to $170,000 per annum. The mother is employed as a (omitted) and earns $710 per week. 

Consideration

1. In terms of the quality of the education offered by either school, I am not in a position to say with any particular accuracy whether one school is likely to be a better school from an educational point of view, in terms of the marks that will be achieved by X. However, there is no evidence that either school is particularly defective or deficient in the educational services that it provides, and it appears that there is an emphasis on pastoral counselling at the (secondary school omitted), which would seem to be of benefit to X. I am not persuaded on the evidence before me that School B would offer X better educational or coeducational opportunities.

2. The Court is in the somewhat unsatisfactory position of having to rely on a very brief note from Dr N, who has been engaged by the parties to prepare a family report. Unfortunately, she has been unable to complete that report. The letter from Dr N, dated 5 December 2016, states:

   I advise that the report in this matter will be completed shortly, but in response to your request that I provide my recommendations for X’s school in 2017, it will be strong recommendation that, if practically and financially possible, X be enrolled at School A. In light of her experiences since her parents’ separation, I consider that her psychological welfare is likely to be enhanced by ceding to her very thoughtful and considered verbal wishes to do so. 

3. Although I am in the position of not having the full benefit of a full family report from Dr N, I note that she has made an unequivocal recommendation. I assume that it is based on her experience, and having had the benefit of the consultative process that she has already engaged in, I accept on the basis of that letter that X has expressed a strong and considered view that she wishes to attend School A.

4. As I said earlier, this is not an easy decision for the Court to make, because effectively I am asked to stand in the shoes of the parents in order to make a decision about a child’s schooling, even if in the short term, on very limited material. 

5. In my view, the appropriate school for X to attend is School A. I take into account:

   i)the proximity of the school to her parents;

   ii)that the school has the capacity to meet her educational needs;

   iii)the unequivocal view expressed by the child as related by Dr N; and

   iv)the benefits of the child attending a school where her cohort of friends will be attending. 

6. Evidence was given by the mother of the fact that the primary school that X has attended is a leave school to the School A in (omitted). I think this is important, particularly in circumstances where it is more than likely that X has told her friends at school that she will be attending that school.

7. I also take into account that she has been living through what appears to be a highly tumultuous breakdown of the marriage of the parents.

   
   

   I also take into account there is benefits in the parties’ attending a school which is reasonably local to their residence, and it is likely to decrease the pressures associated with having to transport children to and from school, which is a pressure which impacts on any family, whether or not they are experiencing the conflict that this family is experiencing. 

8. With regard to the points made by the father in relation to the financial burden created by a decision to send X to the School A, he did not present evidence before the Court of an inability to meet the cost of the schooling even to the extent of 50 per cent. The mother has offered to pay 50 per cent of the school fees. I also note in the minute of the orders proposed by the mother that she will meet the costs of the fees for X to attend the school in (omitted) pending any determination of financial and child support issues by the court.  I am not persuaded that the parties lack the financial capacity to send X to School A.

Section 60CC factors

1. I have regard to the matters in section 60CC, which were specifically referred to me by Counsel for the mother yesterday, in particular ss.60CC(3a) and 60CC(3d) in relation to the effect of changes on the child. The evidence is that the child has expressed a clear view that she would prefer to attend School A.[2] I find that attending School A would cause the least change to the child’s circumstances; given that the school is close to the residence of both parents and that she is likely to have many friends from her primary school attending that College.

   [2] See [16], above

2. With regard to s.60CC(3b), the affidavit material filed on behalf of the wife deposes to the fact that X is an anxious child who has not coped particularly well with the separation of her parents. However, on the material before me, the child has a good relationship with both of her parents.

3. I have had regard to Section 60CC(3)(g), which relates to the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child. X is 12 years of age and at a time where she is about to go to high school, she has experienced significant family conflict and tension.

4. The decision to require the child to be enrolled at the school in (omitted) may constitute a change to the circumstances that is contrary to the best interest of the child. I say this because the evidence supports a finding that she has an expectation of attending that school and a decision not to send her to that school may well be seen by her as a further impact of the marital breakdown which she has to bear.

Conclusion

1. I have detailed in these reasons all matters that I consider relevant. I have concluded that it is in the best interest of the child to attend School A.  

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date:  14 December 2016