Pollard and Iver (No.2)
[2007] FMCAfam 814
•31 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| POLLARD & IVER (No.2) | [2007] FMCAfam 814 |
| FAMILY LAW – Children – dispute between parents regarding secondary eduction of children aged 13 and 11 – father wishes children to attend boarding school from year 8 onwards – mother wishes children to attend local private school as day students – weight to be given to children’s views – other considerations – best interests poor parenting relationship between the parties – application of presumption of equal shared parenting responsibility. |
| Family Law Act 1975, ss.4, 60CA, 60B, 60CC, 61DA, 65DAA, and 65DAE |
| Pollard & Iver [2007] FMCAfam 250 Rice & Asplund (1979) FLC 90-725 H v W (1995) FLC 92-598 R & R: Children’s Wishes (1999) 25 FLR 712 CDJ v VAJ (1998) FLC92-828 |
| Applicant: | MR POLLARD |
| Respondent: | MS IVER |
| File Number: | ADM 4146 of 2006 |
| Judgment of: | Brown FM |
| Hearing dates: | 4 & 14 September 2007 |
| Date of Last Submission: | 28 September 2007 |
| Delivered at: | Adelaide |
| Delivered on: | 31 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms Pyke QC |
| Solicitors for the Applicant: | Mellor Olsson |
| Counsel for the Respondent: | Ms Dickson |
| Solicitors for the Respondent: | Belchamber Legal |
ORDERS
The parties have equal shared parental responsibility for their children C born in April 1994 and O born in February 1996 (“the children”).
The father be permitted to enrol the child C as a boarder at Pxxx School from the first term of 2008 onwards provided he bears all the financial costs relating to the child attending at the school.
So much of the orders of the Family Court at Adelaide made in December of 2003 which prevents the implementation of order 2 hereof be discharged.
Otherwise the orders of December 2003 continue in respect of arrangements for the care of the child O unless the parties agree otherwise.
In the event the parties decide that C’s enrolment at Pxxx School should be discontinued the orders of December 2003 so far as arrangements for his care are concerned as reinstated.
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 |
ADM 4146 of 2006
| MR POLLARD |
Applicant
And
| MS IVER |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Pollard and Ms Iver are the parents of C aged 13 years and O aged 11. Next year C will be starting Year 8 at school and O Year 7. Presently the children live in Bxxx, in a shared care arrangement, spending 11 days with their father and 17 days with their mother each four weeks. The children are in primary school at Txxx.
The parties cannot agree on which school the children should attend, when the time comes for their secondary education. Mr Pollard’s preference would be that they attend Pxxx School in Adelaide. Because of the distance involved, he wants them to attend as boarders, C from 2008 and O from 2009.
Ms Iver is concerned that the children are too young to attend boarding school, even one with such excellent facilities as Pxxx School. She believes that the children are likely to be detrimentally effected by being taken out of their home environments and away from the love, support and understanding that only a parent can give.
Her first preference would be that the children attend a private school close to her and Mr Pollard’s homes, Fxxx School. They would not have to board. If appropriate, the question of the children attending Pxxx School and being boarders could be re-examined when they are each about to enter Year 11, when they will be more mature and more able to cope with the pressures of being away from home for extended periods.
An alternative proposal Ms Iver makes is that she would move to rented accommodation in Gxxx, during the school week, so that first C and then O could attend Pxxx School as day students, travelling between Gxxx and Adelaide by train and bus. The journey each day would be a long one but she believes it is feasible. She puts this proposal because it is clear that the children, particularly C are enthusiastic about the prospect of attending Pxxx School.
Mr Pollard is not enthusiastic about this proposal and believes it would create more problems than it would solve. The children would spend much of their lives travelling, which would defeat the purpose of them attend Pxxx School in the first place – they would not easily be able to take part in all the extra curricular activities which the Pxxx School offers. Their home lives would be disrupted by the long hours of travel involved. As a result, he is dubious about the workability of Ms Iver’s proposal. In addition, he asserts it is not what either C or O want.
This is not the first time I have had to deal with this issue.[1] In late April of 2007, I determined that the children’s views about the school issue should be canvassed by an independent expert. The expert was
Ms Kerry Cavanagh. Ms Cavanagh is of the opinion that C has “a genuine wish to attend Pxxx School in 2008 and has the necessary motivation, intelligence and resilience to cope with it”.[2] Ms Cavanagh discussed the issue of the children boarding at Pxxx School with them both and what the implications of it would be so far as their existing friendships and home life in Bxxx.
[1] See Pollard & Iver [2007] FMCAfam 250
[2] See Family Assessment Report at paragraph 8.1
If C’s experiences of Pxxx School are positive, Ms Cavanagh believes that the issue of O attending the school will naturally resolve and he will attend the same school as his brother, when he is ready, at the start of 2009. Ms Cavanagh also believes that if C does not enjoy his experience of Pxxx School, he will be able to tell his parents and arrangements can then be made for him to attend Fxxx School.
Ms Cavanagh describes this as a “clear safety net” for C.
Accordingly the views and preferences of the two children concerned are central to the outcome of this case. They are also a matter of controversy for the parties. One of the criteria, which the court must apply to determine what outcome is likely to be in the best interests of the children, is any view expressed by them.[3] However any preference expressed by the children is not the only determinative factor in the case but rather is one amongst many other factors. In addition the court is required to consider the weight to be given to those views against the background of the children’s maturity and after considering any other factors which may be in play in shaping them.
[3] See Family Law Act at s. 60CC(3)(a)
Ms Iver accepts that C has a view about attending Pxxx School and has expressed it clearly. He wants to go. O is also positive about Pxxx School but is not so clear cut. Ms Iver herself cannot fault the school apart from where it is. However at 13 years of age, she believes C is subject to all sorts of subtle pressures and influences and may not have a proper appreciation of what it means to live away from home. Her concerns are heightened, so far as O is concerned, given he is younger and has less of an idea of what Pxxx School has to offer.
Quite simply what Ms Iver says is that all the undoubted benefits of Pxxx School, the excellence of its education and the long term opportunities that its education may open up for the children are outweighed by the potential emotional harm which may come to them if they live far away from happy homes and caring supportive parents, at what she believes is a tender age for both boys. She concedes that the balance will shift in future, most likely when the children are entering the final two years of their secondary education. At this stage consideration can be given to the children attending Pxxx School.
Mr Pollard is a great enthusiast for Pxxx School, the school he himself attended, a fact well known to both C and O. He is prepared to pay all the not inconsiderable fees relating to the children boarding at Pxxx School because of the excellence of the education on offer there. He believes that these opportunities are likely to benefit C and O for the remainder of their lives and they are now of an age when they are both ready and willing to seize them.
It is Mr Pollard’s position that he is a conduit for the children’s views and if either of them is unhappy at Pxxx School in future he will remedy the situation and enrol them at Fxxx School. He is unequivocal that it is C and O who are advocating for Pxxx School rather than him. If C and O had not raised the issue of attending at the school, he would not have raised it himself being content for them to attend Fxxx School notwithstanding his view that the education at Pxxx School is infinitely superior.
Both Mr Pollard and Ms Iver are excellent and loving parents. They are each intelligent and thoughtful people. Undoubtedly they both want what is best for C and O, not only for now but for the remainder of their lives. However, they have different temperaments and backgrounds. As such, they approach the question of C and O’s best interests from different but equally valid perspectives.
Accordingly each has compelling grounds on which to argue his or her position should be preferred. I am conscious of the importance of the decision for both children and regretful that I must make it. The case is finely balanced and one outcome is not clearly apparent. There are pros and cons of each possible outcome. The various permutations available cannot be twisted like the surface of a rubik’s cube to achieve a perfect result. One or other of the parties will be disappointed with the outcome and possibly also the boys.
My task is to assess the pluses and minuses of each possible outcome, against the relevant considerations provided by the Family Law Act, to arrive at the outcome which I think, on balance, is likely to be the one which will serve the best interests of C and O. The various outcomes are as follows:
·C starts at Pxxx School as a boarder in 2008 and O follows him in 2009, after he has completed primary school at Txxx.
·C and O start at Fxxx School once they have finished primary school and the question of them attending at Pxxx School is deferred until they have each completed Year 10. This would not necessitate any changes to the orders of December of 2003.
·Ms Iver and her partner Mr C move to rental accommodation in Gxxx and both children attend Pxxx School as day students commuting between Gxxx and Adelaide each day.
The Issues
Having provided this introduction, it is useful for me to set out the issues, which I must determine, before turning to the evidence and applicable legal principles in more detail.
·
What are the views of the children about attending at Pxxx School? What is shaping those views? In particular, has
Mr Pollard has unduly influenced the children [Family Law Act section 60CC(3)(a)].
·Are the children sufficiently mature and insightful to be able to express a view about attending at boarding school, particularly as they themselves have no personal experience of attending at boarding school [Family Law Act section 60CC(3)(g)].
·What will be the consequences for the children’s respective relationships with each of their parents, if they attend Pxxx School as boarders. Will those relationships continue to be close, loving and meaningful, as they currently are or will they inevitably decline, to the long term detriment of the children [Family Law Act section 60CC(2)(a) & (3)(b) & (d)].
·If C does go to Pxxx School as a boarder and subsequently finds that boarding is not to his liking, will he be able to tell his father this and more importantly will his father act on C’s wish and remove him from the school. Essentially will the safety-net proposed by the father and supported by Ms Cavanagh work.
·Are the children too young to attend boarding school at the year 8 level, particularly as this will remove them from the security of the love and support provided to them in a family unit, which in the wife’s view is a “benefit beyond price” [Family Law Act section 60CC(3)(g)].
·Is the mother’s proposal that the children attend Pxxx School as day students commuting from Gxxx a viable option. What are the children’s views about the proposal.
·Given the parties agreed on Fxxx School in 2004, is it in the children’s best interests to allow the father to revisit the orders of December 2003, particularly in the sense that, if his proposal is successful, it will mean that the children’s living arrangements, with each of their parents, will be significantly altered [the rule in Rice & Asplund].
·What are the merits of the decision regarding Pxxx School being deferred until the children are entering year 11 at school, when the International Baccalaureate commences and both children will obviously be more mature.
·Is it appropriate that the children be separated from one another during 2008, as the father’s proposal envisages.
·Finally and most importantly, what is the best outcome for C and O.
Background
Mr Pollard is a person of some means. He works in the Agricultural Industry. The fees for a boarder at Pxxx School are in excess of $28,500.00 per annum, for a day student around about half of this. The excellence of the education facilities offered by Pxxx School is not in dispute between the parties. Nor is the fact that the school offers the International Baccalaureate, something Fxxx School does not. The International Baccalaureate is available to children in Years 11 and 12.
Mr Pollard sees considerable benefits for the children in undertaking the International Baccalaureate. Ms Iver does not disagree. However whether the children will want to undertake it in the future cannot be predicted with any certainty at this stage.
Ms Iver and her partner Mr C are not as well off as Mr Pollard. Ms Iver works with animals and Mr C is self-employed. The fees for Fxxx School are around $5,000.00 per annum per student with a slight discount for any additional student enrolled. Ms Iver is prepared to pay one half of the necessary tuition fees if C and O attend Fxxx School.
Mr Pollard lives in Txxx. Ms Iver lives in Axxx. Fxxx School is in Txxx. It is approximately 73 kilometres from Txxx to Adelaide. Everyone agrees that this is not a realistic commute for the children on a daily basis. It is just under 30 kilometres between Txxx and Gxxx, where there is a railway station. The distance between Gxxx and Adelaide is around 44 kilometres. The train takes between an hour, if it is not an express and forty minutes if it is.
Pxxx School is in an inner suburb of Adelaide. The children would have to catch a bus from the Adelaide railway station to the school. The journey itself, according to the timetable, is around two kilometres and at most would take around ten minutes, depending on the traffic.
The parties have been separated for many years. They have previously been involved in litigation regarding arrangements for the care of C and O. In December of 2003, consent orders were made by the Family Court at Adelaide which provided for C and O to live with the mother and spend eleven nights out of every twenty-eight with the father. The orders also provided for the children to spend equal periods of time with each of their parents during the Christmas school holiday each year.
When these orders were made C was approaching his tenth birthday and O was approaching his eighth. The children were at primary school in Txxx. The orders did not deal with the issue of the children’s secondary education at all. The father concedes that he had a discussion with the mother at sometime in 2004 regarding the children’s secondary education and they agreed on Fxxx School as an appropriate school, at least for the children’s “early secondary years”.[4]
[4] See father’s affidavit at paragraph 10
If the children do attend Pxxx School as boarders, in 2008 for C and 2009 for O, much of the orders of December 2003 will become redundant. This is because of the time the children will be at school. Inevitably, the children will not be able to spend the same amount of time as they currently do with each of their parents. The 11/17 day regime, per four week cycle during school terms, will have to come to an end.
During the school week, the children will be in the boarding house, other than on infrequent occasions when either Mr Pollard or Ms Iver are able to visit Adelaide for the purpose of taking he children out for an evening meal. On weekends, it is likely that the children will have sporting commitments at the school. In such circumstances, it may be difficult for the children to get home to Bxxx regularly.
The father concedes that the Pxxx School authorities encourage boarders at the school to become part of the boarding house community. Although there is no rule preventing visits to home on weekends, frequent visits are not encouraged. Ms Iver would be able to come to Adelaide from time to time, but it would not be easy for her. On any view, the children becoming boarders would constitute a great change in their lives.
Mr Pollard concedes that the intake of boarders at Pxxx School, at the year 8 level, is low. In his view this is because of the high costs involved in boarding. As a result, many parents defer the boarding option for their children for financial reasons, although this would not be their first preference, if they could afford the costs involved at the earlier stage. In 2007 there were only six students boarding in Years 8 and 9. This increased to 95 at Year 10 and onwards.
Both parties acknowledge the excellence of the education offered by Pxxx School. Presently, the children are learning Japanese at school. Japanese is not offered at Pxxx School but is offered at Fxxx School.
The children have an interest in basketball. Currently both are in local teams in Bxxx. Mr C is involved in coaching the boys at basketball. It seems to be the case that they could continue to play basketball, whether they attend Pxxx School or Fxxx School. However, if they attend Pxxx School, it would not be possible for them to remain in their current teams based in the Bxxx.
C, as is only to be expected, has made many close friends at his current primary school. None of these children has any plan to attend Pxxx School next year or in future. On the other hand, three of C’s close friends have plans to go to Fxxx School. It is likely other children known to C and O will attend boarding schools in Adelaide at some time in the future.
In the past, the father proposed purchasing a house for the mother to live in with the children in Adelaide so that C and O could attend Pxxx School as day students. Due to changes in his financial circumstances, particularly because he has renovated his home in Txxx, this proposal is no longer open. Mr Pollard’s current wife owns a house in suburban Adelaide, which he would utilise to visit the children if they attend Pxxx School as boarders.
Mr Pollard would not be willing to assist the mother financially if the court adopts her proposal that the children attend Pxxx School as day students, commuting to the school from rented premises in Gxxx. If the court accedes to her proposal, Ms Iver proposes that she would keep her and Mr C’s current home in Axxx, which she would use on the weekends. Accordingly, if the Gxxx proposal is adopted, the children would potentially have three homes during school terms.
The Evidence
The parties themselves
This is not a case which turns on credit. Both parties are decent, honest people, who told the truth in their respective cases. They are however quite different in personality. Inevitably, this leads them to have different attributes as parents and so different priorities in life, not only for themselves but also for the children.
Sadly, the parties are resigned to the fact that they will very often be unable to agree on arrangements for the care of their children. Ms Iver quite bluntly went so far as to say “we cannot agree on anything”. The boarding school issue has, for obvious reasons, inflamed the difficult parenting relationship between the parties, both of whom are currently convinced of the merit of their respective positions and frustrated at their perception of the intransigence and unreasonableness of the other.
This is a case about values. The parties have different values and different views about what is important in life, not only for themselves, but also their children. The issue of the appropriateness or otherwise of boarding school, for the children of the ages of C and O, is likely to be a matter of considerable controversy, not only for the parties themselves, but also for members of the general community.
Mr Pollard is a successful and self assured person. As a result, he has a forceful personality. I suspect he values self-reliance. He is an astute business man, who travels much. No doubt he works very hard. His career is important to him. He wants C and O also to have successful lives and sees education as being the base on which such success will be built.
One of the slogans of Pxxx School is “we turn boys into men”.
Mr Pollard is likely to identify with this ethos, so far as C and O are concerned. Certainly he believes a boarding school education will make C and O more self-reliant and mature and to use Mr Pollard’s own words will be “beneficial for the boys to start becoming their own person”.
Apart from the value of the education, which the children will receive at Pxxx School, Mr Pollard believes O and C will make friends at the school, which will last a life time. This and the educational opportunities available to them at Pxxx School, leading in time to satisfying and well remunerated careers for the children, he believes will be of inestimable value to C and O.
Ms Iver seemed to me to be a tender and emotional person, who sees herself as being very in tune with the children’s day to day feelings. She values home and family above all things. As such, she is likely to be a more protective parent than the father. She is distraught at the possibility of the children attending at boarding school, at what she believes is a tender and vulnerable age. In the words of her counsel it is her position that “the love and support of a family unit for a child is priceless”.[5] She fears that it will be emotionally damaging for both children to be prematurely and unnecessarily removed from such an environment, no matter how valuable their educational experience at Pxxx School may be.
[5] See Ms Dickson’s written submissions on behalf of Ms Iver at page 8
None of these statements is to be taken as a criticism of either parent. Rather they are made to indicate the differences between the parties, which in turn explain their different attitudes to the boarding school issue. Given the parties’ fundamentally different values, it is hardly surprising that they are unable to resolve the issue satisfactorily between themselves. However, given the importance of the issue for the children themselves, both in the short and long term, it is regrettable that the matter has to be determined in the somewhat artificial circumstances of a court room.
In my view, both parties’ positions have considerable validity and both parents have much to offer the children. They are both good parents and so good role models for the children but in different ways. Inevitably the children must be aware of the conflict between their parents about this difficult issue of boarding school and this in turn must place them under some significant degree of pressure, in which their loyalties are tested. This is highly regrettable.
As I indicated in the earlier decision, the question of a child’s education is a matter of great importance to parents. Parents are often willing to contribute a significant proportion of their income to provide for their children’s education, very often at the cost of great personal sacrifice for themselves. They believe that, if their child has access to a particular type of education, it will be a precursor to their child’s success and so happiness in later life. This certainly seems to be
Mr Pollard’s attitude. As a person of some means, he wishes to be able to provide the children with the best possible education available to him.
Obviously neither C nor O has any personal experience of attending Pxxx School or being a boarder. Their knowledge of the school comes from visiting it on one occasion only and viewing its facilities in company with the school’s principal and their father. This visit occurred in November 2006, at the father’s instigation. In addition they have heard their father speak positively about his experiences at the school.
All agree that the facilities at Pxxx School are impressive. Certainly C was impressed with them, particularly the art facilities, as he has an interest in art. Ms Iver concedes that C is enthusiastic about the school and wants to attend it. I also accept that Mr Pollard has explained to the children that, most likely, if they attend the school, it will mean that they will be boarders at the school.
I accept that Mr Pollard has not sought directly to influence the children in regards to Pxxx School. However, he has never made any secret of the fact that he attended the school and regards it as being a fine one. I accept that the children discovered a newsletter from the school in the father’s office and this sowed the seeds that they also should attend the school in time.
Although Mr Pollard did not directly introduce the idea of the children attending the school, he has done nothing to dissuade them from it. To the contrary, he is enthusiastic about the idea. In this sense he has been an important influence on the children’s views. How could he not be? The children are close to their father, seeing him as being highly successful. They aspire to follow in his footsteps, not only in terms of the school he attended but also wish to follow his profession when they are older.
Although not many boys start boarding at Pxxx School in Year 8, this is the level at which students most commonly enter the school. This is a significant issue so far as Mr Pollard is concerned. Given the importance he attaches to O and C making friends in the same cohort at Pxxx School, he wishes the children to attend the school sooner rather than later. He fears that the children may find themselves social outsiders, to long established groups, if they start at the school in Year 11.
Neither party told me much about the International Baccalaureate. My own researches indicate that twenty-four government and non-government schools in Australia are currently offering the International Baccalaureate. Only schools officially approved by the International Baccalaureate Organisation are authorised to offer what is a two year pre-university curriculum for students aged between sixteen and nineteen years of age. As the name suggests, the International Baccalaureate is a qualification recognised internationally and enables its holder to gain entry to some of the world’s leading universities.
The proponents of the International Baccalaureate describe it as being challenging for students, in the sense that students are encouraged to learn how to think for themselves rather than regurgitate learnt facts. It is said to provide a firm preparation for students to attend university and have a strong sense of identity.[6]
[6] see International Baccalaureate Organisation web site at >
Neither party seeks to challenge the potential benefits of the International Baccalaureate for O and C and both concede that the children are likely to be sufficiently intellectually capable to undertake it. From Mr Pollard’s perspective, it is likely to be easier for the children to enter the program at Pxxx School if they are at the school in the preceding years.
I accept that the International Baccalaureate is an excellent and worthwhile qualification. Neither party has deposed specifically as to any plans they have for the children to study overseas at a tertiary level. At this stage, the likely benefits of the children achieving the International Baccalaureate are largely conjectural. However, on balance, I accept that it is likely to be easier for the children to enter the International Baccalaureate program if they are at Pxxx School in the years prior to Year 11.
It seems to be the case that, so far as the intake of boarding students is concerned, the largest intake at Pxxx School is in Years 10 and 11. At present of the one hundred and ten boarding students at the school, ninety-five or around eighty six percent were in Year 10 or above. These figures tend to reduce the force of Mr Pollard’s assertion that the children would have difficulty in assimilating into the Pxxx School community at this later stage or will necessarily be excluded from the International Baccalaureate program. Common sense would seem to indicate that, if the children join the boarding house at the most common point of entry, they will be in a position to make friends fairly easily, certainly with other boarding students.
Overall Ms Iver has deposed that there are six hundred and fifty students at Pxxx School. Accordingly, at present, around seventeen percent of the school’s population are boarders. If C joins the boarding school in Year 8, which is the earliest stage at which the school will accept boarders, he will be in a minority of students who are both boarders and in Year 8.
School commences at 8.30am each day and concludes at 3.30pm. Usually sporting activities conclude around 5.00pm. The school draws its day students not only from suburban Adelaide but also from areas more distant, including communities in the Adelaide Hills. Many of these children travel to and from school by bus.
Both Pxxx School and Fxxx School require students to attend religious instruction classes. Neither of the parties seem to be particularly religious but both would seem to want the children to receive some level of moral and ethical orientation, which are implicit in receiving a Christian based education.
Fxxx School has a school population of around 600 students, all of whom attend at a secondary level. Class sizes are around 28 students, which is slightly larger than class sizes at Pxxx School. Fxxx School also offers a wide range of sporting activities. However, these activities all take place during school hours, which are from 8.30am to 3.20pm.
Accordingly, if the children attended Fxxx School they would be able to take part in sporting or other activities, independent of the school. They would also be able to remain fully integrated into their respective home lives with their father and mother. From Ms Iver’s point of view, this is by far the greatest advantage of Fxxx School.
Given its location in Bxxx and no doubt because a significant proportion of its school community are involved in the agricultural industry, Fxxx School offers courses that are relevant to this industry. The school has its own agricultural facilities. Again, from Ms Iver’s point of view, this is a considerable advantage of Fxxx School.
As has previously been indicated, Fxxx School offers Japanese as a subject, which Pxxx School does not. Both the children are currently studying Japanese at Txxx School and, according to their mother, doing very well. Fxxx School apparently has a sister school in Japan.
Ms Iver speaks highly of the education offered by Fxxx School. She is enthusiastic about the art program offered by the school, particularly its computer aided design facilities. Although she concedes the education offered by Pxxx School and its facilities are first class, she does not consider that the education offered by Fxxx School is to be regarded as second rate. As one would imagine Mr Pollard sees the distinction between the standard of education offered by each of the schools as being far more distinct, in Pxxx School’s favour.
Fxxx School offers a school bus service, for students who live in Bxxx. It is likely that, certainly from 2009 onwards, the children could catch the school bus from their mother’s home in Axxx.
From Ms Iver’s point of view, the most crucial issue for C and O at this stage of their lives, is their degree of attachment to both of their parents. Pursuant to the current orders, the children spend significant periods of time with both of their parents.
It seems to be the case that both children are doing well under those arrangements, after some initial difficulty adjusting following their parents’ separation. Accordingly, Ms Iver believes there are no compelling reasons to change the current arrangements, particularly as the children are likely to be able to access satisfactory educational opportunities in the Bxxx, at Fxxx School.
The proceedings were characterised by a significant level of rancour. The parties threatened each other with costs orders. Both accused the other of unnecessarily involving the children in the decision making process. Both categorised the other as being unreasonable and unwilling to compromise.
The father sees the mother as emotionally unstable. For example, during his evidence, he was dismissive of her for weeping during an informal discussion designed to attempt a resolution of the issue. The mother essentially sees the father as a bully, determined to get his own way, regardless of the consequences for the children. I suspect she fears, at a deep emotional level, the father wishes to weaken her ties with the children by dismantling the current 11/17 day regime and is using the school issue as a pretext for this.
In this context, the Gxxx option arises. From Ms Iver’s perspective, it would allow the children to have the same home life, which they currently enjoy and attend Pxxx School. Mr Pollard dismisses it out of hand. Ms Iver, in the submissions of her counsel, describes it as a significant concession and very much a “second alternative”.
In my estimation, the Gxxx option would be workable. It seems likely that many children, in the larger capital cities of Australia, spend many hours each day travelling to and from the school, which it is their parents’ preference for them to attend. However, from both Mr Pollard and Ms Iver’s point of view, this outcome would be unacceptable and I suspect would lead to more rather than less conflict between them.
Ms Iver and Mr C would have to rent alternative accommodation in Gxxx. This would be both expensive and inconvenient for them, particularly as Mr C runs his business from their existing home in Axxx. Mr Pollard is strongly opposed to the option and would prefer the children to attend at Fxxx School rather than to commute. How the existing 11/17 day regime would be translated into a situation where the children were living at Gxxx for much of the time is unclear to me.
Ms Cavanagh’s evidence
Ms Cavanagh is a clinical psychologist, who holds a Masters Degree in Applied Psychology, which she obtained in 1990. She has been preparing reports for this Court and the Family Court since 1996. She has conducted her own practice as a psychologist since 1995. Prior to obtaining her psychological qualifications, she was a school teacher for many years. Undoubtedly she has extensive professional experience of working with children and ascertaining their views, particularly in situations where there is conflict between their parents.
Neither party sought to challenge Ms Cavanagh’s qualifications to prepare the Family Report in this matter, although Ms Iver has some criticisms that her report was not sufficiently broad in its approach, particularly in terms of the likely impact on children, of the ages of C and O, attending at boarding school and being removed from a happy home environment. In cross-examination, Ms Cavanagh conceded that she had not conducted any research into the relevant literature regarding the opinions and research of other psychologists regarding the effects of boarding school on thirteen and fourteen year olds.
To Ms Cavanagh, Ms Iver described C as “a very capable” child, who would probably manage at boarding school. Ms Iver was much less sanguine about O describing him as being at “risk” if “pushed too far too fast”.
Mr Pollard did not disagree that the children have different personalities. To Ms Cavanagh, he said that C was more open to new experiences than O but O was able to adjust to new things, when he had to. As such, Mr Pollard believed that C’s personality would support him at Pxxx School and O would be better able to make the transition to the boarding school, if he followed in C’s footsteps. It is interesting to note that Mr Pollard described C to Ms Cavanagh as seeing boarding school as “a boy’s adventure”.
I think it is a fair assessment that Ms Cavanagh saw her role in these proceedings to provide information to the court about what C and O thought about attending at Pxxx School. She did not see it as her role to examine the merits of Fxxx School on the one hand and Pxxx School on the other. Nor did she conduct any psychological testing on the children, particularly their current level of emotional functioning and level of dependence on one or other of their parents.
In addition, as has already been indicated, Ms Cavanagh did not examine any of the professional literature, either psychological or educational, regarding the appropriateness or otherwise of a boarding school education for children.
Whether there is any controversy amongst psychologists or educators regarding the benefits or otherwise of boarding schools for children is accordingly something unknown to me. However, as with members of the general public, as reflected by the parties themselves, I would imagine there are very many different views about children attending boarding schools amongst such experts.
Ms Cavanagh interviewed both children. She spent more time with C because being older, he was more articulate. Ms Cavanagh explained the options of both Fxxx School and Pxxx School with each of the children and attempted to delineate the pros and cons of each outcome. As it was not on the table, when she met with the children, she did not discuss the Gxxx option with them.
O told Ms Cavanagh that he wanted to attend Pxxx School but did “not know why”. He also asserted his view that he would get used to boarding school and being away from his family. He unfavourably compared Fxxx School to Pxxx School, describing the former as a “normal high school”. At the end of his interview, O was described as being “adamant” that he and C “really wanted to go” to Pxxx School.
Ms Cavanagh was aware that O had had some difficulties at primary school, particularly around the time his parents separated. She described him as a child who preferred structure to change but believed he was likely to be more emotionally resilient as he matured. Ms Cavanagh acknowledged that the relationship between the two children was very strong.
In Ms Iver’s view, the fact that O is not able to articulate precisely why he wishes to attend Pxxx School is evidence of some level of manipulation by Mr Pollard. Ms Cavanagh agreed with my assessment that the children would inevitably be influenced by their father’s views. She thought it likely that they would want to align themselves with someone, such as their father, who was a successful role model.
C was well aware of the emotional dilemma, which arises for him as a result of the school issue. He knows he cannot please both his mother and his father. To Ms Cavanagh, he described himself as being “stuck” in regards to the issue, which he finds difficult to talk to his parents about.
However, there can be no doubt that C expressed a clear preference to attend Pxxx School next year. Ms Cavanagh described him as “enthusiastic” at the prospect and excited at the idea of boarding and meeting new friends. C was aware that, if he boarded, it would mean that he would spend less time with his parents and friends in Bxxx. He indicated that he would miss his family “a lot” but remarked that he would not know how he would cope with this separation until he tried out Pxxx School.
Ms Cavanagh described C as highly motivated towards Pxxx School and having well-formed views as to how he preferred to be educated in the future. She considered that it was likely to be useful for C to be involved in decisions regarding his education, particularly in terms of his prospects of future success. She also considered that C’s views were important and she believed that he would be disappointed if he cannot go to Pxxx School. C himself was dismissive of the idea of attending the school from Year 11 onwards, as by this stage “everybody would have made friends”.
C conceded to Ms Cavanagh that most of his friends would be going to Fxxx School next year. However, he also indicated that his father had told him that if he did not like Pxxx School, he could go to Fxxx School. In this regard, C apparently indicated to Ms Cavanagh that he realised that Pxxx School was “not a life sentence”. Certainly it was Ms Cavanagh’s view that C was articulate and assertive enough to explain to his father any change of mind he had about Pxxx School in the future. In this regard, it was Ms Cavanagh’s opinion that the safety net proposed would be effective.
C also expressed to Ms Cavanagh his view that he believed he was now old enough to make the decision about boarding at Pxxx School. He also expressed a hope that his mother would get used to the idea in time. In cross-examination, Ms Cavanagh conceded that if C was unable to attend Pxxx School he was likely to regard his mother as having strongly influenced the decision. As such, his disappointment might impact upon his relationship with Ms Iver. However,
Ms Cavanagh was unable to assess the degree of risk of this happening.
Ms Iver herself conceded that C would be very disappointed if he could not attend Pxxx School. However, it was her assessment that her relationship with C was so close that it would have no significant impact on the loving nature of their relationship with one another. In fact, Ms Iver believed that C would most likely be relieved at such a decision. In all the circumstances of this case, I do not think it likely that C’s disappointment, if the decision is not one of his preference, is likely to impact significantly on his relationship with either of his parents.
C conceded to Ms Cavanagh that O said he wanted to go to Pxxx School but did not know why. In his view, this was because O was concentrating on finishing at Txxx School before turning to the question of Pxxx School in more detail. Ms Cavanagh in her evidence, expressed the opinion that, notwithstanding this ambivalence, O was expressing his own views and was not parroting either his father or brother. Ms Cavanagh also thought that O was likely to derive significant comfort from the fact that his brother would be able to try Pxxx School before him and report back about it.
After interviewing both children and their parents and respective partners, Ms Cavanagh made the following recommendations:
“I believe that C has a genuine wish to attend Pxxx School in 2008 and has the necessary motivation, intelligence and resilience to cope with it. There is a very clear safety net of being able to finish his schooling at Fxxx School if he is unhappy at Pxxx School. I therefore recommend that C be able to attend Pxxx School as a boarder in 2008. Both parents will need to work together to organise visits to C and outings for him so they each get to spend roughly equal time with him in Adelaide.
The issue of O attending Pxxx School will most likely resolve itself depending on C’s experience of it”.[7]
[7] see Family Report at 8.1 – 8.2
The legal principles applicable
The service of C and O’s best interests is the most important consideration in the outcome of this case [Family Law Act s.60CA].
The aims and principles of the part of the Family Law Act which deals with children [section 60B] emphasise the desirability of both a child’s parents being meaningfully involved in their child’s life, to the maximum extent consistent with the best interests of the child concerned.
Emphasis is also placed on the desirability of children being provided with adequate and proper parenting by both their parents. As a result, children have an entitlement to be cared for by both their parents and to spend regular periods of time with them.
Ms Iver points to these objects and principles in support of her position that there should be no change to the existing care arrangements for C and O. She agues that, if Mr Pollard’s proposal is successful, it will result in the de facto abrogation of the parties’ responsibility to parent the children. In effect, they will be parented by the staff at Pxxx School, at least during much of the school year. Ms Iver asserts that such an outcome is inimical to the provisions of the Family Law Act.
Because of the emphasis, in the applicable legislation, on the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, the starting point for any parenting order is to consider whether the parents concerned should have equal share parental responsibility for their child [section 61DA].
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence. The present case is not one which involves allegations of family violence or abuse.
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility.
In considering C and O’s best interests, I must look to a list of matters in section 60CC of the Family Law Act. There are two categories of matters that I must consider – primary considerations and secondary considerations.
There are two primary considerations – firstly the need to ensure that C and O have a meaningful relationship with both their parents – secondly the need to ensure the children are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
Given the absence of any allegations of family violence, abuse and neglect and given my finding that both parents are capable of providing a high standard of care for the children and are well motivated parents, the former consideration must be given greater emphasis in the circumstances of this case.
The additional considerations [section 60CC(3)] are more numerous. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the family law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
In this case, the views of C and O and the factors which give rise to them are central. It will also be necessary for the Court to consider the children’s intellectual capacity to express any view and the level of their understanding of the implications of such a view. These are all matters of weight for the Court [section 60CC(3)(a)].
The Court is required to consider the nature of the relationship the children have with each of their parents and other persons who are significant to them [section 60CC(3)(b)]. In this case, it is clear that both children have a loving relationship with each of their parents and indeed with Ms P and Mr C.
Given the emphasis the applicable legislation places on the joint involvement of parents, the Court is required to examine how amenable each of a child’s parents are to encourage the other parent to be closely involved in their child’s life [section 60CC(3)(c)].
Although Mr Pollard and Ms Iver’s parenting relationship is often strained, there is no suggestion that one of them wishes to exclude the other from playing a significant role in C and O’s lives. Both obviously wish to play as large a role as possible in C and O’s lives, as each unfolds. Both are committed to providing for the children, in all manner of ways.
Considerations of change are central to the Court’s deliberation in this case [section 60CC(3)(d)]. From Ms Iver’s perspective, C and O may be put at risk if separated from her; their father; their friends in Bxxx; and the familiarity of their home environments, both with her and
Mr Pollard; if they attend boarding school at Pxxx School.
The Court is required to consider the practical difficulties and the expense of a parent maintaining his or her relationship with the children concerned, which arise from any particular parenting order [section 60CC(3)(e)]. If the boarding school option is pursued for C and O, it will be difficult for both parents to visit the children regularly in Adelaide. This difficulty will be more pronounced, so far as Ms Iver is concerned.
In my estimation, both parties have a full appreciation of the responsibilities of being a parent [section 60CC(3)(i)] and both are capable of providing for C and O’s emotional and intellectual needs [section 60CC(3)(f)].
It is difficult for me to assess the respective educational merits of Pxxx School on the one hand and Fxxx School on the other. I have not been provided with any independent expert assessment in this regard. I am satisfied that both are good schools, which provide an appropriate level of education for children of the ages of C and O. More importantly, I accept that each parent has a valid set of reasons for preferring one school over the other.
As I remarked at the outset, this is a case about values. Inevitably, both the parties, I myself and other members of the community, including teachers will have different value systems and so different views about the merits of various types of education.
I am also required to consider the maturity, sex, lifestyle and background of the children concerned and any other relevant characteristic which they may have [section 60CC(3)(g)]. Again, the matters which arise under this criterion relate to issues of value and personal preference. I must be careful not to substitute my own preferences or prejudices for those of the parties.
Ms Iver did not receive the benefit of a private education. Mr Pollard did. He attended Pxxx School, but not as a boarder. The children’s background, in part inherited by them from their father, is a factor which militates in favour of them attending Pxxx School. I accept that parents of Mr Pollard’s background and class, often wish for their children to attend their “old school”.
It is Ms Iver’s position that thirteen or fourteen years of age is too young for a child to attend boarding school. Mr Pollard does not agree. Pxxx School accepts children at this age, although the evidence indicates that most parents prefer to wait until their children are older. Mr Pollard asserts that the reasons for this are largely financial, particularly where country parents are concerned.
The most appropriate age, for a child to attend boarding school, is likely to be a matter of controversy. I have not been provided with any expert or impartial evidence in regards to the optimal age for a child to begin to board. In an ideal world, it is the sort of major long term issue [Family Law Act section 4] which parents themselves should resolve, after considering their individual circumstances. Unfortunately that is not possible in the present case.
Obviously the circumstances of parents will differ and factors will arise in individual families for or against children boarding. Some of those factors will be financial or related to preference. Others may relate to issues of geography or practicality. Parents consensually often consider that a boarding school is the appropriate option for their children. Accordingly, per se, it cannot be said that boarding school is inappropriate for all children or an option of last resort.
For example, parents involved in active military service or on overseas diplomatic duty for their country or those who are primary producers in a place remote from secondary schools may have no other option but to consider a boarding school for their children, from an early age. In such circumstances, I do not think that it can be said that for a child to attend boarding school, from age twelve to fourteen, is always going to be clearly contrary to that child’s best interests.
Finality is desirable in children’s cases [section 60CC(3)(l)]. The principle reaches its clearest expression in the case of Rice & Asplund.[8] The rule in Rice & Asplund is an expression of the paramountcy principle. It is in the best interests of children for there to be an end to the litigation concerning them and for unnecessary litigation to be avoided. There needs to be a substantial change in a child’s circumstances before a court should revisit parenting orders recently made.
[8] Rice & Asplund (1979) FLC 90-725
Whether a party should be barred from bringing a further application regarding children can be decided as a discrete preliminary issue or concurrently with the hearing of a final application. As is self apparent, from the earlier reasons for judgment I delivered in this case, I have elected to adopt the latter course.
The provisions of the Family Law Amendment (Shared Parental Responsibility) Act 2006 have significantly amended the provisions of the Family Law Act 1975, which deal with children. The legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routines; as well as special occasions; - so long as this involvement is commensurate with protecting the children concerned from harm.
The emphasis in the legislation is on time, not merely on the extent of time, but also on its quality and the manner of its utilisation with the children concerned. As a result, if the presumption created by section 61DA is applied, the Court is required to consider the children concerned either spending equal periods of time or substantial and significant periods of time with each of their parents.
The presumption itself does not determine the extent of time the children concerned spend with each of their parents. This is determined by section 65DAA. The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly the Court must be satisfied that such arrangements are likely to be in the best interests of the children concerned and secondly the arrangements are likely to be reasonably practicable to put into operation.
The matters set out in section 60CC deal with best interests. Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the children concerned.
The application of the presumption
Before making any parenting order, I am required to consider the presumption arising from section 61DA. Neither party raises issues of family violence or abuse and neglect. Accordingly, the question arises as to whether it would be in the children’s best interests for the presumption not to apply.
Both Mr Pollard and Ms Iver are good parents, who are interested in and capable of providing for their children. The only ground for not applying the presumption would appear to be their poor parenting relationship with one another, as currently manifested in their inability to reach a decision on the secondary schooling of their children.
On the other hand, since 2003, the parties have been able to make the 11/17 day regime work and the evidence indicates that both children are currently doing well. This is most certainly not a case where it can be said one parent is a passenger and the other is doing all the work.
For the foreseeable future, both parties will remain vitally interested in all aspects to do with the care of their children, particularly issues to do with their long term development. Whatever criticisms the parties have of one another, they have both been consistently involved in the lives of both children, both before and after the parties separated.
“Major long-term issues” is an expression defined within the Family Law Act. It encompasses matters of education, religious and cultural upbringing, health and changes to living arrangements that make it significantly more difficult for the child concerned to spend time with one or other of his parents.[9] This latter aspect is of some moment to the parties in this case, as is obviously the parties’ current inability to agree on their children’s secondary education.
[9] See Family Law Act at section 4
An order for equal shared parental responsibility requires the parties to it to consult with one another regarding decisions – making in respect of long-term issues to do with their children and to make a genuine effort to come to a joint decision regarding those issues. Although I have reservations about the parties’ capacities in this regard, given their past level of involvement with the children and their mutual aspirations to remain involved, I would think it would be retrograde and contrary to the spirit of the applicable legislation, if one parent was to be imbued with more parental authority than the other.
The concept of equal shared parental responsibility can perhaps be described as utopian in its implications and, as such, difficult to achieve, particularly following acrimonious relationship failure. It poses difficult problems in cases such as the present one. Clearly the parties cannot agree on one very significant issue to do with their children. The deadlock cannot be described as being the fault of one more than the other. They are both good parents. In such circumstances should the Court allocate parental responsibility to one parent over the other merely as a means of preventing future disputes?
Although the parties’ parenting relationship is currently very poor and is likely to remain so for the indefinite future, I am not persuaded that this is the sort of case where it would be in the children’s best interests for one of their parents to be excluded from having equal shared parental responsibility for them for this reason alone.
In any event, pursuant to section 65DAE, parents do not have to consult on matters which are not concerned with major long-term issues, when the children are spending time with one or other of them. For these reasons, I propose to make an order that the parties have equal shared parental responsibility for C and O.
Having decided the presumption applies, the mechanisms created by section 65DAA are engaged. These mechanisms raise considerations relating both to the children’s best interests and issues of practicality.
Obviously, if the children attend boarding school, it will be impossible for them to spend either equal time or substantial and significant with both their parents. The optimal arrangement envisaged by the legislation will not be able to be put in place.
Having pointed out this fact, it becomes clear that the Court cannot adopt a “one size fits all” approach to every family. Such an approach would be contrary to the best interests of the children concerned and indeed to the ethos of the legislation.
Rather it is the Court’s duty to make relevant findings of fact, concerning the cases of each of the parties and then apply each of the relevant considerations contained in sections 60CC to those findings in a common sense and practical way, in order to ensure that the final orders that are made results in a situation that will serve C and O’s best interests. Regardless of the overall intent of the legislation, the Court is still required to take an individual approach to every case.
In my view, the section 60CC factors, which require particular consideration in this case, are the following:
· The level of meaning the children will have in their respective parental relationships, in the event of each possible outcome in the case [section 60CC(2)(a)];
· The children’s views [section60CC(3)(a)];
· The likely effect of any changes in the children’s circumstances, particularly in terms of the children being separated from their parents, in the event the boarding school option is preferred [section 60CC(3)(d)];
· The outcome which is least likely to lead to the institution of further proceedings [section 60CC(3)(l)].
C and O’s best interests – the section 60CC factors
(a)The benefit of the children having a meaningful relationship with both their parents
The implication of the applicable legislation is that children benefit if their parental relationships are given depth and dimension by the children concerned being able to interact with their parents in a variety of roles and settings, which are not artificially confined to either week days or weekends or school holidays.
In the past, it was a frequent criticism of orders of this Court that they elevated one parent in importance as the “residence” parent. The other parent being confined to a subsidiary role as a “contact” parent, who saw his or her child only on weekends and during school holidays.
No doubt one of the intentions of the amending legislation was to ensure that children got a more rounded view of their parents – seeing them go off to work daily and, at the same time, balancing the responsibilities of being a parent – taking the children to and from school; making meals; overseeing homework; attending at sporting events; and the other myriad responsibilities which go with being the primary care providing parent.
The irony of this case is that, up to this stage, both Mr Pollard and
Ms Iver have both been able to be involved substantially in C and O’s daily routine. However, if the outcome advocated by the father is adopted, it will mean that in future both will be largely confined to the role of “contact” parents, in the sense that they will be able to see the children, in the main, only on weekends and during school holidays.
The question which arises therefore is whether such an outcome must inevitably leach the meaning from the relationships the children currently enjoy with each of their parents and, if so, does this mean that such an outcome cannot be regarded as being in the children’s best interests?
Clearly, if the children go to Pxxx School as boarders, their respective relationships with each of their parents will change significantly. I accept that the school authorities at Pxxx School wish to inculcate into students who board that they are part of the boarding school community and therefore frequent weekend exeats are discouraged.
It also seems likely that it will be difficult for both Mr Pollard and
Ms Iver to visit Adelaide regularly during school terms. In addition, on weekends during school term time, it seems likely the children will wish to remain at Pxxx School to take part in sporting activities, which the school encourages.
However, although the children will spend less time with each of their parents, if they board, I do not consider it necessarily inevitable that in such circumstances their parental relationships will loose meaning. Both C and O have secure relationships with both their parents, whom they love and know well. In addition, it is a common phenomenon, as children move into their teenage years, that they become more independent and wish to spend more time with their friends rather than their immediate family.
Accordingly, with teenage children, it may be fallacious to equate the extent of time children spend with their parents with the degree of meaning which will arise in such parental relationships. In this case, regardless of the outcome, both C and O will continue to have a meaningful relationship with both their parents. This will be because of the security of the parental attachment in each case; the age of the children concerned; and the love and common experience the parents and children have shared up to this stage.
Obviously, if the children go to boarding school, their parental relationships will undoubtedly be different from what they currently are. But change will come to these relationships anyway as time passes. That is an evitable corollary of life. Whatever is the outcome of these proceedings, the relationships C and O have with each of their parents will change, as each child matures and becomes more independent. In my view, in assessing the degree of meaning in a parental relationship, the Court must look to the durability of such relationships, in the face of each possible outcome in the case.
In this case, in my view, the children’s relationships with each of their parents have sufficient durability to be able to withstand any pressure arising as a result of the children going to boarding school. Meaning in these relationships can be sustained through school holiday and other contact.
I do not think that it can be said to be axiomatic that a parental relationship will be more meaningful, if the child concerned spends as much time as possible with each of his or her parents. Again the Court must look to the particular circumstances of each family to determine the best outcome for the child concerned.
(b) The children’s views
The applicable legislation requires me to consider any views expressed by the children and any factors which may affect the weight to be given to those view, such as the child’s maturity or level of understanding. The legislation speaks of views rather than wishes. The latter is a more concrete concept, the former is more addressed to perceptions and feelings.[10]
[10] See Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 at paragraph 56
Accordingly, a child is not required to make a decision about what is the appropriate outcome for him or her in the particular case. Nor is he or she required to express an explicit wish as to which parent he or she wants to live with or spend time with.
However, it seems that the court is required to explore a child’s perception of what he or she feels is likely to be best for him or her. Very often these perceptions will be ambivalent and difficult to express or quantify. This is particularly so with younger children. This does not mean that a child’s view should be disregarded.
To the contrary, over time, there has been an increase in the judicial regard given to the rights of children in proceedings such as these. It is often said that children have a right to be heard. Certainly children’s views are important and requiring of being given “proper and realistic weight” rather than token regard.[11]
[11] See H v W (1995) FLC 92-598 at 81,944
It is also impossible to catalogue all the factors which may be at play in shaping a child’s view in any given case. Matters of individual preference are idiosyncratic but no less important for that. It has been said that the process of weighing up a child’s professed view is “a process of intuitive synthesis”. What is done with those views is a matter of common sense in the overall assessment of what is likely to be in a child’s best interests.[12]
[12] See R & R: Children’s Wishes (1999) 25 Fam LR 712 at 724
C and O are intelligent children. I accept that they were aware why they were coming to see Ms Cavanagh. It was to discuss their views about the respective merits of being boarders at Pxxx School and day students at Fxxx School.
C in particular was aware of the moment of the issue. In particular, he was aware that it would mean extended periods of separation from both his parents, his current group of friends in the Bxxx and the familiar circumstances of home. He was also aware that the issue had the potential to upset his mother. He was adamant nonetheless that he wanted to give boarding school a try.
In practical terms, C has no personal understanding of what it will be like to be separated from his parents. The full realisation of the implications of his preference can only come about when he actually starts at boarding school and experiences what it is really like.
I accept that Mr Pollard is highly influential in C reaching the decision that he wishes to attending boarding school. However, I do not think this influence is either sinister or the result of conscious manipulation. Other factors are also likely to be at play in the formation of C’s view. As he said to Ms Cavanagh, he sees boarding school as a “boy’s adventure”.
The Harry Potter stories are familiar to most Australian children. The adventures of Harry Potter and his friends take place in a boarding school setting. Such boarding school settings have been a staple of children’s fiction since at least the late 19th century. Accordingly, it is likely that many children have a high level of curiosity about boarding schools and wish to attend one. I have no reason to believe that C is any different in this regard.
I have to be careful about the possibility that C may have an unrealistic view of what it will be like to attend boarding school, which must involve being separated from his parents, particularly his tender and loving mother.
However, C is thirteen years of age. He will be close to fourteen if he starts boarding. Accordingly, he is likely to have sufficient maturity to understand what it will be like to attend at boarding school. In my view, it cannot be said that he is being asked to make an assessment of something entirely unknown to him. Although his interaction with Pxxx School has been brief, he has visited the school.
O is considerably younger than C. The issue of him attending Pxxx School is less pressing. He wishes to focus on the completion of his primary education at Txxx. His views about the merits of Pxxx School are somewhat nebulous.
It also seems likely that O has been strongly influenced by C. It would be unusual if the older child did not take a leading role in respect of such an important decision. It seems likely that O sees C as a trail blazer at Pxxx School and from his perspective it will be a long period before he (O) is required to embark on the same trail. Notwithstanding these issues, it is my view that the Court should give significant weight to O’s views at this stage.
I accept that both children are generally unenthusiastic about the Gxxx option. It seems to be the case that they share their father’s reservations about it and see it as an unsatisfactory compromise, which will satisfy no-one.
(c) The likely effect of any changes in the children’s circumstances
This is one of the most significant aspects of the case. From Ms Iver’s point of view, the children are doing well in the current 11/17 day regime. They are part of two loving and caring households. In such circumstances, she argues that there are no compelling reasons to embark upon the trial of the boarding school option, particularly as it may result in upset and emotional disturbance to the children concerned.
I cannot know, nor can the parties themselves or indeed the children, how C and then O will react to boarding school. To a certain extent that issue can only be resolved if and when the children try boarding school for themselves. Certainly this was C’s view.
As Mr Pollard observed, the children attending at Pxxx School is not a “life sentence”. It has not been suggested to me that the boarding school is poorly run and that the staff concerned will not look out for the children. Although there are few boarders at the Year 8 level, Pxxx School does accept boarders at this age and by necessary implication is able to accommodate the emotional needs of such children. Accordingly, in my view, the possibility of the children suffering a severe level of emotional harm is much reduced.
In addition, I accept Mr Pollard’s evidence that he sees the boarding school option as having the nature of a trial. If C does not enjoy the experience, I accept that both he and Mr Pollard will be accepting of this fact and arrangements will be made to remove C from the school. Accordingly, it is my view that the safety net proposed by
Ms Cavanagh is likely to be an effective one.
The relationship between both children and their mother is a tender and abiding one. It will remain, whatever is the outcome of these proceedings. I do not think that C is likely to be highly resentful towards his mother, if the boarding school option is rejected. Further, for the reasons outlined above, I think both children will retain their current level of relationship with each of their parents, if they become boarders.
O is likely to miss C, if C starts at boarding school in 2008. For his part, C is likely to relish being the trail blazer at Pxxx School. I do not think that this factor alone is of such weight to justify the rejection of the boarding school proposal for C.
If C does not adapt to Pxxx School and wishes to return to Bxxx, it would seem to be a relatively easy process for him to be enrolled at Fxxx School. Accordingly, the boarding school option is not irrevocable or inherently risky. Indeed C’s obvious enthusiasm for it is likely to lead to success rather than failure.
I accept that Pxxx School offers an excellent standard of education. It is impossible for me to assess the future consequences for the children, if they do not have an opportunity to receive such an education. Similarly, it is impossible for me to do anything other than conjecture as to how the children will turn out, if they complete their secondary education at Fxxx School. However, I have no reason to think anything other than that Fxxx School provides a satisfactory standard of education.
(d)The outcome least likely to lead to the institution of further proceedings
Ms Iver’s position is that it is inappropriate for the Court to have embarked on these proceedings at all. In her submission, the fact that there is a gap in the December 2003 orders, regarding secondary school issues, is not of itself sufficient grounds to subject the children to the deleterious consequences of more litigation, particularly as in 2003,
Mr Pollard had no objections to Fxxx School.
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is generally desirable that arrangements for their care are stable and constant.
For those reasons, the court is required to consider the outcome which is least likely to lead to the institution of further proceedings and, once orders have been made, it should be loathe to allow further proceedings to occur regarding the children who are subject to those orders. This is the basis of the rule in Rice & Asplund.
The principle which underlies the rule is that, generally speaking, it is not in the interests of children to have repeated applications before the court concerning arrangements for their living arrangements. Litigation is not helpful to children. It is desirable that arrangements for their care be stable and so final. For obvious reasons, children are not well served by frequent displacements or being subject to uncertainty about where they will be living in future.[13]
[13] See CDJ v VAJ (1998) FLC 92-828 at 85,449
It will frequently be the case that there is much controversy between the parents concerned as to whether there has been a change of circumstances of such moment as to justify the court re-opening proceedings. This issue must be determined within the matrix of Part VII of the Family Law Act 1975. The question essentially being whether it is likely to be in the children’s best interests to allow further litigation.
In arriving at its decision, the court must look to the following matters:
·The importance or seriousness of the issues raised, both individually and where necessary collectively;
·The impact that the issues are likely to have on the best interests of the children concerned;
·Whether the issues raised relate to change or new issues, which render it necessary to revisit the earlier decision.[14]
[14] See King & Finneran (2001) FLC 93-079 at 88,367
The test is a strong one. The change or fresh circumstances must be of such significance that, once the court has become aware of it, it is left in “no doubt” that it is necessary to re-litigate the parenting issue in dispute between the parties. That is not to say, upon becoming aware of the change of circumstances, the court reaches the conclusion that there must inevitably be a change in orders previously made. That would be putting the test too strongly. Rather, the change of circumstances must be such that there is a “real likelihood” of a change.
I do not think that the issue of the children’s secondary education can be described as a trivial one. It is important to Mr Pollard, who is prepared to expend a significant sum of money in an attempt to provide the best possible education for C and O. Although I accept that
Mr Pollard is comfortably off, the financial implications of C and O attending at Pxxx School are significant indeed.
The issue is also important to the children, particularly C. He has spoken about the issue at length with Ms Cavanagh. As far as he is concerned, for good or ill, the genie is out of the bottle so far as the issue of his secondary education is concerned. In such circumstances, it would be highly artificial if the court declined to adjudicate the issue.
I am well aware, whatever is the outcome of these proceedings one of the parties and quite possibly the children themselves, will be bitterly disappointed. This cannot be helpful to the parties’ future parenting relationship with one another. However, in my view, the issue of the children’s secondary education is of such moment and is so contentious between the parties that it is incumbent on the court to make an adjudication, regardless of the potential deleterious consequences for the children of such a decision.
Obviously, when the orders of December 2003 were made, it could be anticipated that the children would be attending secondary school from 2008 onwards. Regardless of this inevitability, the parties chose not to specifically address the issue of the children’s future education. In this sense, the issue cannot be described as a new one. However, since December 2003, the circumstances of the parties have changed so that the issue has assumed a sharper focus, not only for the parties themselves but also for the children.
As a result of all that has happened in the past 12 months or so, I now have no doubt that it is necessary for the court to adjudicate the issue of the children’s secondary education. The parties are incapable of resolving the issue for themselves. In addition, the issue is of such significance, for all concerned, that it requires adjudication. In such circumstances, it is my view that the court has no option other than to litigate the issue. It is regrettable that this litigation must inevitably have consequences for the pre-existing care arrangements for the children. However, in my view, this is unavoidable.
Conclusions
I have reached the conclusion that it would be in the children’s best interests, if C attends Pxxx School as a boarder next year. If C makes the transition to boarding school successfully, it is likely that O will both want to follow him there and will also make the transition without undue difficulty. Given the close relationship between the two children, it is clearly in their best interests to attend the same secondary school, if at all possible.
The most important factor which has influenced me in this decision is that it is what the children, particularly C want. C is approaching his fourteenth birthday. He wants to give boarding “a try”. O shares his views. The children’s views are important. The legislation and the relevant authorities emphasise their importance.
C and O are much loved children, who are fortunate to have capable and well resourced parents. The relationship that C and O have with each of their parents is secure and well developed. Regardless of the outcome in this case, both children will be able to have a meaningful relationship with both their parents in future.
It is not beyond the bounds of possibility that C will find that boarding school does not live up to his expectations. He may suffer severely from home sickness and want to leave Pxxx School. Both he and
Mr Pollard are aware of this possibility, which was canvassed with
Ms Cavanagh. I accept Ms Cavanagh’s assessment that it will be possible for arrangements for C to be changed and for him to attend Fxxx School in future, if Pxxx School is not to his liking.
C becoming a boarder at Pxxx School must mean that the existing arrangements for his care must be changed. The 11/17 day arrangement will become redundant. I accept that this is a significant change. However, it can be maintained only if C’s views are essentially disregarded.
The other possible outcomes include deferring C’s entry to the boarding school until a later stage, either Year 10 or 11. Or C and in time O attending Pxxx School as day students. It seems that C has set his heart on going to Pxxx School and would prefer to go sooner rather than later. In these circumstances, I do not think it is likely to be in his best interests for the decision to be deferred for 2 or 3 years. Such a deferral is likely to heighten rather than dissipate the tensions between the parties, which are already unacceptably high.
In addition, I accept that neither C nor O is enthusiastic about the prospect of travelling each day from Gxxx. Although Ms Iver is to be commended for searching for a solution, which will be acceptable to all concerned, to my mind, her proposal has the indications of being an outcome which raises as many problems as it solves and as such is likely to be unsatisfactory to all, particularly Mr Pollard.
As I hope is apparent from these somewhat lengthy reasons for judgment, I do not relish having to make this decision regarding C. I make it only because the parties themselves are incapable of making it or reaching compromise in regards to it. An ordered society requires a system to resolve disputes between its citizens, including parents.
However, the Court should not intrude unnecessarily or opportunistically into the parental responsibilities of the parties who come before it. Having made the decision regarding C, I see no need to make a similar decision regarding O at this stage. I accept what
Ms Cavanagh says that what happens to C at Pxxx School will effect what happens to O. It is inevitable the two children will go to the same school. This is common ground between the parties.
Given my decision, it will be impossible for the December 2003 orders to continue so far as C is concerned. I am not going to modify specifically those orders. I am satisfied that, in the changed circumstances of C attending Pxxx School, the parties will be able to negotiate arrangements which will enable him to see both his parents regularly during the school term and for half of each school holiday. At this stage, the December 2003 orders should continue so far as O is concerned.
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 one hundred and ninety-two (192) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 31 October 2007
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