Pollard and Iver - [2007] FMCAfam 250

FEDERAL MAGISTRATES COURT OF AUSTRALIA

POLLARD & IVER

[2007] FMCAfam 250

FAMILY LAW – Children aged 12 and 11 – consent orders made in December 2003 – dispute regarding children’s secondary school – father wishes children to attend boarding school – if children attend boarding school consent orders become otiose – preliminary issue – application of principle in Rice & Asplund.

Family Law Act 1975 – ss.60CA, 60CC

Rice & Asplund (1979) FLC 90-725
D & Y (1995) FLC 92-581
King & Finneran (2001) FLC 93-079
Bolitho & Cohen (2005) FLC 93-224
H v W (1995) FLC 92-598
R & R: Children’s Wishes 25 Fam LR 712

Applicant:

MR POLLARD

Respondent:

MS IVER

File number:

ADM4146 of 2006

Judgment of:

Brown FM

Hearing date:

18 April 2007

Delivered at:

Darwin

Delivered on:

27 April 2007

REPRESENTATION

Counsel for the Applicant:

Ms Pyke QC

Solicitors for the Applicant:

Mellor Olsson

Counsel for the Respondent:

Ms Belchamber

Solicitors for the Respondent:

Belchamber Legal

ORDERS

The parties jointly commission a family assessment report to be prepared by an appropriately qualified expert to be agreed between the parties and failing agreement to be as nominated by the court to investigate the issue of the secondary education of the children O born in February 1996 and C born in April 1994, particularly whether it is likely to be in their best interests to attend Pxxx School and any other matter relevant to this issue, including the views of the children concerned.
The father bear the costs of the provision of such report.
The matter is listed for further directions on 13 July 2007 at 9.30am
The matter is listed for final hearing on 4 September 2007 at 10.00am for one day.
The applicant pay the hearing fee of THREE HUNDRED AND SIXTY FOUR DOLLARS ($364.00) or file a remission certificate in respect thereof within 28 days of today’s date.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADM4146 of 2006

MR POLLARD

Applicant

And

MS IVER

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Pollard and Ms Iver are the parents of C born in April 1994 and O born in February 1996. They separated many years ago now, in 2001. On 17 December 2003, they agreed on final arrangements for the care of their children and accordingly orders were made in the Family Court. Pursuant to those orders, the children were to live with their mother and spend regular periods of time with their father - around eleven nights each month. Obviously, when the orders were made, C and O were at primary school.
Both parties live in Bxxx. The father Txxxworks in the Agricultural industry. The mother works with animals. Currently both children attend Txxx School. C is in year 7 and O is in year 6. Next year C will start secondary school. The year after that, so will O.
A dispute has arisen between the parties regarding which school the children should attend for their secondary education. It would be the father’s preference that they attend Pxxx School, where he himself went to school. It would be the mother’s preference that they attend a local school in Bxxx. Her preference would be the Fxxx School. It is acknowledged by both parties that they agreed on this school in the period immediately following their separation.
However, the orders made by the Family Court do not deal specifically with the issue of the children’s secondary education. Rather, the orders provide that the parties have joint responsibility for making decisions concerning C and O’s long term care, welfare and development, which clearly encompasses such matters as the secondary school, which the children should attend.
If C and O do attend Pxxx School and their parents continue to live in Bxxx, it will not be possible for the children to attend the school as day students. The distance to travel is too far. They will have to board. During school terms, at best, they will only be able to spend time with their parents on weekends. Obviously, the current court mandated arrangements for their care will become redundant and another regime will have to be inaugurated. This new regime will inevitably mean the children will spend considerably less time with their mother than they currently do.
The mother has no wish to move from Bxxx, where she is happy and well settled. She has no interest in living in suburban Adelaide. She is dismissive of the father’s proposal that he buy a house in Adelaide, which she and the children can occupy. Her life is in Bxxx with her partner. In addition, she is firmly of the view that both C and O’s future educational needs can be more than satisfied in Bxxx, as the parties formerly agreed.
If there is to be a change in the location of the children’s secondary education, away from Bxxx, it is the mother’s position that the parties should deal with this issue when the children are older, approaching their final two years of secondary education rather than now. At this later stage, the children will be more mature and their views more easily discernable and so their best interests more properly catered for by any orders made.
The father does not agree. He believes Pxxx School is likely to have many advantages for the children. As such, he asserts it is better for the children to start there sooner rather than later and the start of secondary school provides an obvious demarcation point for this to occur. More importantly, he asserts that both children, after visiting the school and meeting its principal, are now keen to attend Pxxx School. On the other hand, the mother believes that the father has unduly influenced the children to satisfy his own emotional needs regarding their professed desire to attend at the school. She suspects that the father has an ulterior motive.
The court is not being asked to determine this controversial issue – regarding the children’s place of secondary education – today. This is a complex issue and there are likely to be many differing but legitimate views about the appropriateness of boarding school for children of the ages of C and O currently.
In addition, I have little, if any, evidence regarding the respective temperaments of the children and how they are likely to cope with living away from their parents. As well, I am not currently in a position to judge the respective merits of Pxxx School, on the one hand and Fxxx School, on the other.
Rather, a more fundamental but preliminary issue has arisen, which relates to the parties different views as to how the children’s interests may be best served. It relates to the so-called rule in Rice &Asplund.[1] In Rice & Asplund Evatt CJ said as follows:
“The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material. These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.”
[1] Rice & Asplund (1979) FLC 90-725
From the mother’s perspective, the rule has clear application to the present case. It is her position that the father’s application, if granted, will inevitably impact upon the residence order that was made in December of 2003. It will become redundant. The children will no longer live with her for the majority of time, as the parties previously agreed. Both acknowledging at the time that such an outcome was the one best calculated to serve the children’s respective interests. As such, she asserts it would not be in C and O’s best interests to revisit the issue of their living arrangements so soon after the consent orders were made, particularly, in her submission, as there has been no significant change in the parties or the children’s respective circumstances. All remain living in Bxxx.
From the father’s perspective, the issue of the children’s secondary education is one which has not been previously definitively determined, as the earlier consent orders are silent about it. He asserts that the issue is a significant one and, as such, it is likely to be fundamental to the children’s best interest that it be determined, if the parties themselves cannot resolve it. He puts forward a proposal, in the form of the parties commissioning a psychologist to prepare a family assessment, as a mechanism to assist the parties to resolve the issue, or failing that, to assist the Court to determine the issue.
It is clear from authority[2] that a court, such as this one, has a discretion to determine whether there has been a sufficient change of circumstances to justify the re-opening of the issue of residence in respect of a child, which has earlier been determined by concluded proceedings, as a discrete or preliminary issue, prior to hearing any of the substantive applications. The mother asserts that the father’s application, although ostensibly addressed to another issue, is squarely directed to where the children should live in future. The father has a different view. These proceedings are designed to resolve this preliminary issue between the parties.
[2] See D & Y (1995) FLC 92-581 at 81,764

The Applications

The father commenced these proceedings on 7 December 2006. He relies on the following documents:
a)his amended application filed 13 April 2007; and
b)two affidavits of himself filed on 7 December 2006 and 27 March 2007;
The mother responded to this application on 23 January 2007. She relies on the following documents:
a)her response; and
b)two affidavits of herself filed on 23 January and 10 April, 2007 respectively.
The father seeks the following orders on a final basis:
“1.That the mother and father do all things necessary to enrol the children C born in April 1994 and O born in February 1996 in Pxxx School to commence their education at the college as for C in the first term of 2008 and as for O in the first term of 2009.
2.From the first school term in 2008 with respect to C and from the first term in 2009 with respect to O, the said children complete their education at Pxxx School.
3.That the mother and father do all things necessary to enrol the said children as boarders in the boarding college of Pxxx School to commence as for C in the first school term in 2008 and as for O in the first term of 2009.
4.That as from the commencement of the first term in 2008 the said children spend time with each of their parents:-
a.    for half of each period of school holidays at times as are agreed;
b.    for half of the exeats throughout the term alternately with the mother and the father;
c.     for half of any non exeat weekends throughout the term as are agreed between the parties and the children;
d.    during any school function or sporting event to which parents are invited;
e.    at such other times as are agreed between the parties.
5.That the boarding and tuition fees and cost of uniforms for the said children be the sole responsibility of the father.
6.That the cost of travel to and from the college for the purpose of school holidays, exeats and other weekends away from the college shall be borne by the parent who has the care of the children on the date of the travel.”
The mother seeks the following final orders:
“1. That the father’s application dated 7.12.06 be dismissed.
2.That the children C born in April 1994 and O born in February 1996 be enrolled at Fxxx School for their secondary education until each of the said children completes Year 10 and thereafter at such school as may be agreed between the parties or in default of agreement determined by the Court.
3.That the costs of the children’s attendance including tuition fees and uniforms be shared equally between the parties.
4.Such further or other order as to the court seems fit.
5.Costs.”
However, I am not determining the final applications today. The mother’s final position is conditional on the outcome of the parties’ respective interim applications. As an interim measure, the father seeks the following order:
“1.That the parties do all things necessary including arranging the attendance of the said children upon Ms T for the purpose of obtaining a report from Ms T on the issue of the children commencing education as boarders at Pxxx School in 2008.”
On the other hand, it is the mother’s position that the following order should be made at the conclusion of these interim proceedings:
“1.That the application of the husband be dismissed summarily or in the alternative that matter be listed for argument as to issue of whether the threshold test is met in relation to the variation of final orders for residence.
2.Costs.”

Relevant principles of law

In all matters concerning parenting orders, the best interests of the children concerned is the paramount consideration. As the circumstances of both parents and children change from time to time, parenting orders are never final in the sense that the court always retains a jurisdiction to deal with such changed circumstances. However, some degree of change is a necessary corollary of life and should not of itself allow parenting orders to be easily revisited. For that reason, a court will not readily reopen a case concerning parenting orders recently made. There needs to have been a substantial change in circumstances before a court will do so. This is the basis of the rule in Rice & Asplund.
The principle that underlies the rule is that, generally speaking, it is not in the interest of the children to have repeated applications before the court concerning arrangements for their living arrangements. It is desirable that there be an end to litigation concerning children. The thrust of the rule is to encourage parties to have a sense of finality about orders once they have been made and place a barrier in the way of repeated and unnecessary application to vary orders recently made. It is obviously in the best interests of children for there to be an end to the litigation concerning them and certainly for unnecessary litigation to be avoided. The rule in Rice & Asplund is an application of the paramountcy principle as set out in section 60CA of the Family Law Act 1975.
Collier J discussed the relevant criteria for the application of the rule in Rice & Asplund, to the circumstances of each particular case, in King & Finneran.[3] In particular, his Honour considered how the significance of any change in circumstances, since orders had been made, should be assessed. His Honour said as follows:
“To apply the test in Rice & Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings. In arriving at such a decision, the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary collectively, and the impact that they may have on the children. It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require revisiting the earlier decision. This is not always a clear distinction.”
[3] King & Finneran (2001) FLC 93-079
Collier J referred to D & Y,[4] where the Full Court of the Family Court indicated that a court should be extremely loathe to reopen a case involving an issue of residence previously determined about two years before, except on strong grounds. In this context His Honour said as follows:
[4] D & Y (1995) FLC 92-581
“The word strong in that case is a departure from substantial or significant as used in earlier cases. It indicates clearly what is required. The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstances must be such that if taken into account there is a real likelihood that a change may follow
…
what is required is that a trial judge be satisfied that there has been demonstrated such a change that it must be a matter of concern and requires the court to examine the situation of the children afresh. There is no assistance to be gained from the authorities as to whether or not this can be done cumulatively. The law at present requires that there be a change such as to require re-litigation. That change can be made up of component parts or could rely on one single but major change. However, a cumulative basis for change in circumstances cannot be made simply by weight of numbers of the changes alleged to have occurred.
…
the purpose of the rule is to protect the children from exposure to further unnecessary litigation. [5]
[5] King & Finneran (supra) at page 88,368 - 9
The Full Court of the Family Court approved King & Finneran in Bolitho & Cohen.[6] In the case, the Full Court accepted that a change in a child’s wishes and the maturation of the child concerned, particularly in regards to his or her capacity to express a concluded view, were factors which, in appropriate circumstances, could amount to a change of circumstances of sufficient weight for a court to be justified in examining afresh the living situation of the child involved. The case concerned two children who were aged about twelve and ten at the relevant time.
[6] Bolitho & Cohen (2005) FLC 93-224
The circumstances of Bolitho & Cohen were that, in 1999, when the children concerned had been eight and six respectively, the parties agreed that the children should live with the mother in Sydney. The father lived in Japan. In 2003, he filed an application seeking orders that the children should live with him in Japan, citing a change in the children’s wishes as the basis for his application. An expert witness apparently supported his view. The trial judge concerned considered that there had been a sufficient change of circumstances to warrant the re-opening of the issue of residence. The Full Court approved his approach.
Section 60CA of the Family Law Act requires the court to regard the best interests of the child concerned as the paramount consideration in making any particular order involving the child. Sections 60CC(2) and (3) provides a list of matters to be taken into account in determining how those best interests are to be assessed. One of these matters is the views of the children concerned.
The applicable authorities indicate that the court is required to give weight to a child’s views, bearing in mind the cognitive age of the child concerned; the level of maturity of the child; and also whether those views have been subject to the influence of any other person. In H v W[7] Fogarty and Kay JJ said as follows:
“The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children. There can be little doubt that there has been a perceptible change in the approach to the wishes and feelings of children not merely in custody cases in this court but across the wider spectrum of society generally.”
[7] H v W (1995) FLC 92-598 at 81,944

In R & R: Children’s Wishes,[8] the Full Court of the Family Court said as follows:
“There are many factors that may go to the weight that should be given to the wishes of the children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive syntheses on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.”
[8] R & R: Children’s Wishes 25Fam LR 712 at 724

The Father’s case

It is the father’s position that C and O spontaneously raised the issue of attending Pxxx School with him, rather than it occurring at his instigation. Although he concedes the children were aware that he had attended the school and was positive about its attributes. He asserts that it was as a result of the children’s overtures that he arranged for them to tour the school and meet its principal in November of 2006. As a result of this meeting, he asserts the children are favourably disposed towards the school and he has no concerns about them being able to make the transition to it from their primary school.
He sees the benefits of the children attending Pxxx School to be as follows:
·Year 7 is the point at which Pxxx School accepts a significant number of students. As such he believes that the children would be able to make many long standing friendships, if they join the school at this point. These friendships may endure for the remainder of the children’s lives, particularly if they attend university in Adelaide, which he believes is likely.
·He believes it may be more difficult for the children to enter the school at year 11, particularly in regards to forming friendships with existing students, who have been at the school longer.
·He believes the school offers an “excellent and superior education”. In this regard he believes both children have the necessary attributes to take advantage of such a standard of education, particularly so far as the International Baccalaureat is concerned. He wishes the children to undertake this. It is not available at many other schools.
Overall, it is the father’s position that a significant issue has arisen between the parties, regarding the appropriate secondary school for the children to attend. As the issue has arisen, he asserts that it is concomitant with the children’s best interests that it be determined. Although he concedes that the issue has implications for the children’s living arrangements, it is his position that the issue is to be characterised as a discrete but significant one. Although he concedes, as indeed he must, that the issue has implications for the current living arrangements for the children.
In his submission, his proposal that there be a family assessment report prepared, as soon as possible, is the best means to either assist the parties to the resolution of the matter or prepare it for adjudication. In determining which outcome is the best one for the children, he asserts that it is incumbent upon the court to canvas in some way the children’s views about the venue of their secondary education and, as such, a family assessment report is the best means for this to occur. As previously indicated, it is his position that the children have strong views about the issue. As such, their best interests dictate that the court should in some way canvas these views in a formal way.

The Mother’s case

The mother is dubious about the father’s assertion that the children raised the issue of attending Pxxx School spontaneously with him. Rather, she believes it is more likely that the issue was raised by the father himself and he is exerting some subtle influence over them, if indeed the children have raised the issue. More importantly, she has concerns that the children, given their respective ages and level of emotional development, do not have any great degree of insight into the consequences of living away from their parents, in a boarding school setting, even if they have expressed a positive view about Pxxx School.
It is her position that the most crucial issue for C and O, at this stage of their lives, is the degree of their attachment to both their parents, which up to this stage has been facilitated by the care arrangements which came into force formally in December 2003. The children spend significant periods of time with both their parents under the current arrangements. She believes that the children are thriving under these arrangements and accordingly there are no compelling reasons to change them, particularly as the children are likely to be able to access satisfactory educational opportunities in Bxxx. Indeed some aspect of the education available in Bxxx may be superior to that available at Pxxx School.
However, the main thrust of her argument is that the consent orders, made in December 2003, were intended to set out the permanent living arrangements for the children, on a final basis. The father’s application, although ostensibly directed to issues of education, will result in a change of these living arrangements, if his application is successful. As such, she believes his application is a “stalking horse”, which he is using as a pretext to change the longstanding living arrangements of the children, when there is no sufficiently weighty reason for those arrangements to be altered.
In the mother’s submission, the future issue of the children’s secondary education was one in the contemplation of the parties, when the final orders were made. They chose not to specifically deal with it, notwithstanding the fact that it had been raised as a potential area of dispute between them, as evidenced by their tacit agreement regarding the Fxxx School. As such, she argues that this is neither a fresh nor a serious issue and not one which relates to any change of circumstances. Certainly not when compared to the long standing arrangements for the children’s care, which have been in place for several years now and which inevitably must be disturbed, if the father is successful in his ultimate objective.

Conclusions

C and O’s best interests are the paramount consideration in this matter. As has already been indicated, the rule in Rice & Asplund is a reflection of the paramountcy principle. It is not likely to be in the best interests of children that the litigation surrounding arrangements for their care should be unnecessarily prolonged or that issues, once determined, should be easily revisited or subject to potentially endless challenge in subsequent proceedings.
The principles set out in Division 12A of the Family Law Act 1975 direct the court to ensure that any of its proceedings concerning children are conducted in as non-adversarial a manner as possible. Rather, the court is to ensure that its proceedings are “child focused”. This means that parents do not have an unfettered right to pursue issues which are of interest to them alone.
Rather, there must be a fundamental nexus between the issue raised and the best interest of the child concerned. Unlike other civil proceedings in this country, proceedings between parents are not strictly adversarial. This is because the outcomes of such proceedings affect the interests of third parties, who are not, strictly speaking, actual parties to the proceedings themselves. These parties are, of course, the child or children of the parents who bring the proceedings in the first place.
The court has a discretion to determine whether an application should be dismissed pursuant to the rule as a discreet issue prior to the detailed gathering of any evidence or after a full hearing of all the relevant issues. The circumstances of each particular case must determine in what way the discretion is to be exercised. Again, it would seem that the court’s consideration of how the child concerned’s interests will best be served, must inform how the discretion is ultimately used.
Accordingly, it may be open to the court to dismiss the father’s application, on the basis of the application of the rule in Rice & Asplund, not only at a preliminary stage but also after it has heard all the evidence which is likely to be available in the case or indeed after having had access to a discrete aspect of the evidence, such as a family assessment. Essentially, the application of the rule, particularly at which stage it is to be applied, is a balancing exercise.
In some cases it may be too precipitate to apply the rule at an early stage, when the respective cases of the parties are inchoate and the evidence conflicted and amorphous. On the other hand, to apply the rule too late may be self-defeating, occurring only after substantial costs have been incurred by the parties and the children concerned exposed to the full extent to the deleterious consequences of litigation. In addition, to apply the rule too late may result in the respective parenting positions of the parties being subjected to the greatest degree of polarisation, which of itself may be detrimental to the children concerned. Certainly such polarisation would not be an outcome conducive to the parties having a consensual basis for parenting their children in future.
How the balance is struck depends on the circumstances of each individual case. Most fundamentally, hinging on the gravity or weight of the issue raised in the fresh proceedings. Collier J characterised the quality of such an issue in terms of it being one which, once raised, the court had no option but to embark on a re-litigation of arrangements for the care of the child or children concerned. Given that formulation, it is clearly a strong test. In my view, in applying the test to the circumstances of the present case, it is useful to consider it under the three specific categories raised by Collier J, which are as follows:

a) Seriousness of the issue

I accept that the issue of the children’s secondary education is of particular moment to both parents but, particularly at this juncture, of special importance to the father. My impression of the parties, particularly the father, is that they are financially comfortable. Accordingly, they are likely to have access to a great range of educational options for their children. Certainly more so than other parents of more modest means. Having made that observation however, I note that I have not received specific evidence of the parties’ financial circumstances. It may be that the father is more financially secure than the mother. In any event, the prospect of the children attending Pxxx School, as boarders, does not apparently cause him any financial concerns.
For obvious reasons, given the range of choices confronting them, both parents are likely to want to make the best educational selections for C and O. This choice will not be made in isolation but will depend on other factors, not least of which is the parties’ personal preferences in regards to the children’s education, particularly in regards to their views of the children’s respective temperaments and the likely emotional impact on them of boarding school, as well as obviously where each of them are living at the time. As I have already indicated, the appropriateness of boarding school for any child is likely to be an issue of significant controversy, regardless of the ages of the child concerned at the time.
Education is inevitably a serious issue for parents who, for obvious and human reasons, wish their children to succeed in later life through having had access to the best possible educational opportunities likely to be available to them. They aspire to their children being subject to the greatest range of educational stimuli, so that their children’s potential is recognised and led out. In this way, parents hope their children will be able to pursue appropriate tertiary and vocational training in time and have access to meaningful and well remunerated careers in later life, which will provide them with a basis on which to build contented lives.
It is a common phenomenon for parents to commit a significant proportion of their income to providing for the education of their children, very often from an early age. Accordingly, I do not consider that the issue of the secondary school which the children attend in future can be regarded as a trivial issue. Nor can I definitively conclude at this stage that the father has any sinister ulterior motive for raising it at this stage. I accept that the commencement of secondary school is a stage at which many parents consider whether or not their children should have a privately funded education.
Although the parties have significantly different views about which mode of education is likely to be the optimal one for C and O, they are ad idem as to the importance of the children having a good education. Again, clearly the parties presently have divergent views about the appropriateness of boarding school for children of the ages of C and O, particularly in regards to the impact such a school will have on the current nature of their parental relationships. Again however, in my view, this controversy does not undermine the seriousness of the educational issue, particularly from the father’s perspective. At this juncture, I am not able to dismiss definitively his assertion that Pxxx School is likely to provide the best possible education for C and O in future. That must be a matter for further evidence.

b) The impact of the litigation on the children

I accept that, as a matter of general principle, litigation involving children has the potential to have an adverse impact on the children concerned. Again it is necessary to balance the potentially deleterious consequences of any application made regarding a child with the seriousness or importance of the issue which the application raises.
For reasons already provided, I am satisfied that the issue raised by the father is a serious one. At this juncture it is difficult to gauge definitively the likely impact of the further litigation on either C or O. In my view, a family assessment report, as sought by the father, is likely to be the least intrusive way for the issue of the children’s secondary education to be investigated further. Certainly, at this point, in the absence of such a report, I am unable to conclude that the potential psychological consequences for the children are so serious that they outweigh the likely benefits of having the issue resolved.
In addition, as is clear from a consideration of the matters listed in section 60CC(3), the issue of a child’s views is one which has implications for how that child’s best interests may be achieved. The parties are currently in vehement dispute about the nature of C and O’s views about Pxxx School and their degree of maturity to express any concluded view. On the basis of the evidence led before me, in this truncated hearing, I cannot resolve this issue.
The relevant authorities, to which I have already made reference, stress the importance which is to be given to the views of the children affected by litigation. Such views are to be given “proper and realistic weight”. Certainly the court should not easily dismiss the opportunity for children to express their views. In Bolitho the Full Court recognised that a child’s developing maturity was a factor of relevance in assessing the appropriateness of permitting further proceedings, certainly where the child concerned had apparently expressed a view.

c) A fresh issue or a change of circumstances?

As Collier J observed, there is not always a clear distinction between whether an issue which has been raised is a fresh one or one which arises because there has been some change in circumstances as a result of the natural and foreseeable exigencies of life. From the father’s perspective, the issue of the children’s education is a fresh one, which requires determination. On the other hand, it is the mother’s case that the issue was foreseen when the orders of December 2003 were made – obviously one day the children would have to attend a secondary school – as such, it is not appropriate for the court to allow, in effect, the re-opening of the whole issue of the children’s living arrangements, under the pretext of considering their educational requirements.
I accept that if the father’s application is ultimately successful, it is inevitable that it will have far reaching consequences for the children, particularly so far as their present living arrangements are concerned. That is not of itself a reason to dissuade the court from embarking on adjudicating any subsequent dispute which has arisen between the parties. The significant thing is that the court should be persuaded, once the issue has been raised, that the issue is of such consequence that there is no other alternative but to allow the issue to be determined, regardless of whether or not it results in a re-litigation of other issues, which have previously been determined between the parties.
On balance, I have come to the conclusion that the issue which is raised by the father is more properly one which is characterised as a fresh issue rather than one which relates to some incidental change of circumstances. Necessarily, given the nature of the issue, it requires the revisitation of the issue of the children’s living arrangements. However, notwithstanding this connection, I am satisfied that it is a fresh and important issue.

Conclusions

In my view, this is a finely balanced case. It is generally undesirable that the longstanding living arrangements for C and O should be easily revisited, particularly as there have been no momentous changes of circumstances of either the parties themselves or the children, other than that obviously the children have matured and the time for the commencement of their secondary education has drawn nearer. However, that is not the end of the matter. The court must also make some assessment of the gravity or seriousness of the issue which is raised in the subsequent proceedings.
At the end of the day, I have reached the conclusion that the issue of the children’s secondary education, at boarding school or otherwise, is of such moment that it requires further litigation. Clearly, it is an issue which the parties themselves cannot resolve at this point. In my view, it would be premature to dismiss the father’s application merely because it has potential consequences, so far as the living arrangements for the children are concerned. As I have already indicated, it is my view that the application raises a separate but potentially momentous issue, both for the parties themselves and their children.
Individual parents put great store by the particular school which their children attend. Rightly or wrongly, they see attendance at one particular school as being a harbinger for their child’s likely success in life. Parents are prepared to expend significant sums of money in securing what they believe is the best possible education for their children. Education is a complex and weighty issue for many parents. As a consequence, it will inevitably become a matter of controversy for many separated parents.
In addition, it is an issue about which the children who are affected by such decisions, are likely to have views. The court should not easily dismiss these views. In this particular case, there is significant controversy about what are the views of C and O in regards to attending Pxxx School. This encapsulates one of the central issues in the case. The evidence about these factors is presently too diffuse for the court to make a realistic assessment of the likely impact of further litigation on the children. Accordingly, in my view, it would be premature to dismiss the father’s application at this stage.
The father’s intermediate position, in my view, provides the best means of advancing the matter, with the least possible adverse consequence for the children. It remains open to the mother to re-agitate the issue of the appropriateness of the court allowing the proceedings to advance, once a family assessment has been obtained. Such an assessment will canvas the views of the children and the factors at play in influencing those views, as well as issues to do with C and O’s individual insight into the issue. As the father seeks the assessment and has raised the issue in the first place, he should pay for the report but the mother should have a role in determining who should provide it.

I propose fixing a final hearing date for the matter in the latter half of 2007. I will also fix a further date for directions, when the family assessment will be to hand and the appropriate trial directions can be made, if necessary.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: P Smith

Date: 27 April 2007