QUAILL & SIMPSON

[2018] FamCA 534

FAMILY COURT OF AUSTRALIA

QUAILL & SIMPSON [2018] FamCA 534

FAMILY LAW – CHILDREN- Application by father to change child’s school – Application dismissed – Consent order varied to give mother sole parental responsibility for the child – Leave granted for mother to provide copies of the child’s school reports and medical reports to any health care professionals during the course of the proceedings

FAMILY LAW – CHILD SUPPORT – Whether on an application by the father to review a determination of child support by the Administrative Appeals Tribunal, in the absence of notice to the Child Support Agency, the Court has power or jurisdiction to change the father’s current child support assessment – Court does not have power or jurisdiction to make such determination

Family Law Act 1975 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)

APPLICANT: Ms Quaill

RESPONDENT: Mr Simpson

INDEPENDENT CHILDREN’S LAWYER: Mr Turnbull

FILE NUMBER: HBC 171 of 2015

DATE DELIVERED: 26 February 2018

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 26 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Higgs

SOLICITOR FOR THE APPLICANT: Dobson Mitchell & Allport

COUNSEL FOR THE RESPONDENT: Mr T C Simpson in person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE RESPONDENT:

COUNSEL FOR THE RESPONDENT:

Mr Turnbull

Ogilvie Jennings

Orders

1. Order made by this Court on 6 February 2018 be varied to provide that the mother have sole parental responsibility for the child X born … 2006 (‘the child’).

2. Leave be given to the mother to provide to any health care professionals any reports provided by teachers, psychologists or psychiatrists in relation to the child during the course of these proceedings.

3. Any application that may exist by the father that may require the child not to attend at her current school in the year 2019 and beyond is dismissed.

4. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED

1. (a)     the question of whether the child attends or does not attend her current school is a matter for the mother having regard to the advice she takes from the child’s health care professional and from the educators at the child’s current school; and

   (b)nothing in this order prevents the court from sending school reports, monthly or quarterly magazines or the like to the father or for the father attending the school, outside of school hours, for interviews with teachers from time to time.

2. The Court did not have power to deal with any application regarding child support from 2019 onward and declined to hear any such application on its merits.

3. All extant applications are dismissed other than applications for costs.

IT IS FURTHER DIRECTED

1. A copy of the reasons for these orders be taken out and placed on the Court file.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Quaill & Simpson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 171 of 2005

Ms Quaill

Applicant

And

Mr Simpson

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. These are proceedings relating to X, (‘the child’) who was born in 2006 and is about to celebrate her 12^th birthday.

2. The proceedings are between Ms Quaill (‘the mother’) and Mr Simpson (‘the father’), and given the history of this matter, an independent children’s lawyer had been appointed.  This matter had been listed for a five‑day hearing before me this week.  However, all of the matters, apart from some limited issues, were resolved by consent orders that were made by me on 6 February 2018.  In those consent orders, the Court made orders that the mother have sole parental responsibility save for the question of the child’s education, which was going to be determined today, that the child live with the mother, spend time with the father as agreed, and certain other consequential orders.  Up to that time, the Tasmanian Child Protection authorities had engaged in these proceedings, but sought leave and were permitted to withdraw from the proceedings earlier today.

3. What is it, then, that I have to turn my mind to?  It relates to three issues: firstly, whether the child should continue at the school which she has attended since the beginning of her schooling, that is, at B School;  secondly, whether the mother should have sole parental responsibility in relation to the question of the child’s education; and, thirdly, the father’s concern that he continue to pay child support from 1 January 2019, which, he contends, relates to the child’s education, and that as he has two other children to support, a son aged eight, almost nine, and another child, aged 17 months, with his current partner. 

4. The evidence before me in this limited case fell into the following categories:-

   (a) an affidavit by the mother filed 22 February 2018;  the mother was cross‑examined in relation to that affidavit by both the father and the Independent Children’s Lawyer; 

   (b) the father’s affidavit, which was filed on 14 February 2018 and was read into evidence and which, quite sensibly, neither the independent children’s lawyer nor counsel for the mother sought to cross‑examine on; 

   (c) an affidavit annexing a report from Dr C, a child adolescent psychiatrist filed 20 February 2018; 

   (d) an affidavit from Dr D filed 20 February 2018;

   (e) an affidavit by Ms E filed 22 February 2018;  Ms E was the child’s grade 5 classroom teacher; 

   (f) an affidavit by Ms F, who is the principal of B School, filed 22 February 2018; 

   (g) an affidavit by Ms G, filed 22 February 2018, who is a Pastoral Care Coordinator.  I note, on the evidence of the mother, that Ms G works with another Pastoral Care Officer, a Ms H.

5. The mother is aged 30 and has, until recently, been employed but is now not in paid employment given the history to which I will refer later.  She is seeking employment, but in the meantime, she is earning about $900 a fortnight by way of government support.

6. The father is 44 and is a pensioner.  He is also a stay‑at‑home dad for his 17 month old daughter and is, at some level, supported by his current partner, who provides income into the household. 

7. The mother and father had a short, on‑again, off‑again relationship.  The father has another child, who lives in Far North Queensland and is aged about eight.  He tells me that he pays child support for that child. 

8. The child in these proceedings has had some significant health issues which the parties, the school and Child Protection Services have endeavoured to address.  There is no doubt that the child was particularly unwell last year, and it is clear that she tried on a number of occasions to self‑harm and engage in some other self‑harm activities.  This is of grave concern to the parties, the school and the broader community. 

9. Dr C is a psychiatrist in family therapy who worked with the child and on one occasion undertook a comprehensive assessment.  He did so in his letter to the Independent Children’s lawyer of 27 November 2017.  I have carefully read that report and also his subsequent letter of 16 February 2018 saying, and I quote, that he ... “would see no benefit in [the child] changing schools” and that if that occurred, “it would undoubtedly be destabilising and detrimental to the child’s overall mental health should that occur”.  I have given that report significant weight. 

10. The child also sees a clinical psychologist, Dr D, who provided evidence to the Independent Children’s Lawyer.  Her first report, dated 27 November 2017, was in identical terms to that of Dr C and, in fact, was a jointly signed report.  She goes on to say, as does Dr C, that the change of schools would not be good for this particular child.  I have had significant regard to that evidence.

11. Ms E, the child’s teacher, provided evidence as to the child in 2017, including the child’s personal hardships over that year.  It is clear that this teacher and the school surrounded the child and endeavoured to provide what help they could through those tough times.  She said she would be concerned if the child was removed from B School and said it would be, and I quote:-[1]

    ... traumatic to her and, therefore, detrimental to her general well-being.

    [1] At page 6 – affidavit of Ms E filed 22 February 2018.

12. The principal of B School, Ms F, provided evidence in terms of a letter where she observed the support provided by the teachers and the Pastoral Care Coordinator.  The principal also said that she was interested and involved in the care of this particular child, noting that these proceedings caused deep suffering to the child.  She added that B School is a fully integrated kindergarten to year 10 school, and said the child will, for the next five years, have access to continuity of educational programs, specialist teachers who are well known to her and observed:-[2]

    To add to the potential notion of [the child] leaving her much loved school community at a crucial time of therapy and mental health rehabilitation would be morally wrong, and I believe it would put her at grave risk.

    [2] At page 7 – affidavit of Ms F filed 22 February 2018.

13. I have given significant weight to that evidence.

14. Ms G, the Pastoral Care Coordinator, has been particularly involved with the child in the last two years.  Her report is impressive.  She observed, and I will just quote some parts from it, firstly, that:-[3]

    …removing [the child] from the school would be to the detriment of her education and general wellbeing.

    [3] At page 6 – affidavit of Ms G filed 22 February 2018.

15. Ms G says, and I accept, that the child loves the school and is strongly connected with the school, particularly through her peers, friends, teachers, instructors, routines and expectations.  She says that the child feels safe and supported.  She has attended the school since Kinder/Prep, and staff have a strong connection with her mother and the child allowing for easy communication.  She says the child is a bright student who has the capacity to achieve, and “she needs the continuity of pastoral support in order to achieve her academic potential”. [4]

    [4] Ibid.

16. The pastoral care provided to the child is imperative to her well-being and smooth transition between year levels, specialist classes and sense of belonging.  She has a strong connection with the students who are in the younger grade levels.  This Pastoral Care Coordinator says, and I accept, that she has experience of dealing with the child when she believed she was leaving the school.  She says the child’s reaction was extreme, “emotional, sad, angry, upset and then withdrawn”.[5]  She said the child loves B School and feels she belongs there.  The pastoral care teacher says the school provides a large array of extracurricular activities, of which the child is excited about participating in this year and beyond.  These activities allow her to represent the school but also at no additional cost to the family.

    [5] Ibid.

17. It is clear that this school plays a significant role in the wellbeing of this child, who is, sadly, caught in litigation between her parents.  The reason the child is being considered for removal falls, essentially, into one basic component, that is, the cost of attending the School.  The mother has limited resources, but is addressing those as best she can.  From her evidence, it seems that the School is endeavouring to meet the mother’s financial circumstances and that they have no intention of removing the child from the school.  They simply want to ensure that the mother pays as much as is possible.  The father says that his income is limited and he has three children to support and that he ought not to contribute to school fees at all from 2019 onward.  He concedes that he ought to be paying school fees this year given that this is the end of the child’s primary school term at the school.

18. The first thing I need to turn my mind to is the question of parental responsibility.  The parties conceded and agreed in March this year that the mother should have parental responsibility.  The father objected to that extending to education purposes because of his concerns about the amount of school fees and his responsibility to pay a proportion of those.  The mother gave evidence that the school provides to the father the normal documents to which a parent would be entitled, such as newsletters, school reports and the like.  She does not want that to stop, but she wants any decisions to be made as to the child’s schooling to be left with her.

19. Given the nature of the orders that were made earlier this month, and the mother’s involvement of the child at the school and the parents’ earlier determination that the child should go to this school, it is clear to me that the mother should take, and continue to have, parental responsibility for the child with regard to her education, and I will so order.  I will note in any such order that the mother does not object to the father collecting or receiving school reports and normal school documents and attending at parent and teacher occasions.  Given the nature of the orders that were made in February of this year, I intend to take that no further, but I will also note that, of course, this child is aged 12 in March, and within a few years, the question of who should get her school reports other than the responsible parent is likely to vest in her, and it may be that once she goes to year 9, 10, 11 or 12, she may express, and be entitled to express, some views in that regard.

20. I do not intend to make any order removing the child from the school.  The evidence is that at the present time, this school is a valuable support for this child, and in terms of the needs that she has, with the health issues that she struggles with, it would be not in her best interests to move the child from the school.  Having considered all of the evidence in the light of the relevant, but narrow considerations I have made, these orders.

21. Child support is an entirely different issue.  The father is subject to a child support assessment pursuant to a decision made in the Administrative Appeals Tribunal in December 2017.  That decision provided that for the period 1 January 2017 to 31 December 2017, the father should be paying an annual child support of about $680.  This amounts to about $26 per week.  From 1 January 2018 to 31 December 2018, that child support has been varied to a figure of $1,955 per year, which is a figure of about $40 per week.  These are, to the say the least, very modest levels of child support.

22. The father does not seek to disturb the current child support assessments, but says that from 1January 2019, he ought not to be required to pay this amount.  The first thing I need to consider is whether I have the power or jurisdiction to change the current assessments.  The father is seeking an extension of the current assessment until such time as the child attains the age of 18 years, with a determination that he pay nothing per week for the child.

23. The father says that he does not wish to contribute to school fees as and from 1 January 2019.  It is not clear what, if anything, he is offering in terms of support for the child from then on.  In any event, the only basis upon which I could deal with the current assessment would be by way of review of the decision of the Administrative Appeals Tribunal made 5 December 2017. 

24. An appeal from the Administrative Appeals Tribunal, such as the one to which I had earlier alluded, must be made to the Federal Court or the Federal Circuit Court of Australia.[6]  When these reasons are published, I will set out the section which makes that provision.

    [6] See s 44AAA of the Administrative Appeals Tribunal Act 1975 (Cth)

25. As far as I am aware, there has been no appeal lodged in relation to that determination, and the father made it clear today he does not intend to lodge an appeal.  Therefore, there is no power or jurisdiction for me to change that assessment in that way. 

26. It is, of course, possible for the father to make an application for departure, having regard to s116 of the Child Support (Assessment) Act 1989 (Cth) (‘the Assessment Act’). However, to do so, the father would have needed to have, firstly, served an application on the Child Support Registrar, set out the basis upon which he sought to make a change to the assessment and then persuade the Court of the grounds set out in 116 of the Assessment Act. There has been, as far as I am aware, no application made in that regard, no service upon the Child Support Registrar, and, as such, this Court has no power to make the order which the father now seeks.

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 26 February 2018.

Associate:     

Date:              27 June 2018