REEDS & ALBELO
[2011] FMCAfam 18
•28 January 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
REEDS & ALBELO [2011] FMCAfam 18
FAMILY LAW – Children – father wishes to take children to Disneyland – children’s anxiety – could have negative effect upon relationship with father – father opposed to children continuing in Catholic education system – children’s wishes – children performing in accordance with intellectual abilities – use of mobile telephone for children to communicate – communications book.
CHILD SUPPORT – Payment of Catholic school fees in lieu of periodic support.
Family Law Act 1975 (Cth), ss.60B, 60CC
Child Support (Assessment) Act 1989 (Cth), ss.117, 124, 125
Relationships Act 2003 (Tas), s.40
KB & TC (2005) FLC 93-224
Doyle and Doyle (1992) FLC 92-286
H v W (1995) FLC 92-598
Kannis & Kannis (2003) FLC 93-135
N & B [2003] FMCAfam 72
Applicant: MR REEDS
Respondent: MS ALBELO
File Number: HBC209 of 2010
Judgment of: Roberts FM
Hearing dates: 7, 8 & 9 December 2010
Date of Last Submission: 9 December 2010
Delivered at: Launceston
Delivered on: 28 January 2011 REPRESENTATION
Counsel for the Applicant: Mr J Munro and Mr W Ayliffe
Solicitors for the Applicant: John Munro
Counsel for the Respondent: Mrs R Courtney
Solicitors for the Respondent: PWB Lawyers ORDERS
(1)That the Application filed 12 March 2010 on behalf of MR REEDS (“the father”) is dismissed.
(2)That [X] and [Y] both born [in] 1998 (“the children”) attend [M] School at [omitted] in Tasmania (“the College”) in 2011 and each remain enrolled at the College until she leaves school or completes Year 10 whichever is the earlier, unless otherwise agreed between the parties in writing, or as Ordered by a Court of competent jurisdiction.
(3)That MS ALBELO (“the mother”) and father forthwith take all steps necessary to enrol the children at the College.
(4)That pursuant to section 124 of the Child Support (Assessment) Act 1989 the father is to provide child support to the mother for the children for the period from 1 January 2011 to 31 December 2014 (“the period”) by way of payment of half of all school fees, levies, and costs of text books, excursions, and uniforms as and when they become payable for the children while the children attend the College, and the annual rate of Child Support payable by the father for the period is to be reduced by 100%.
(5)That pursuant to section 124 of the Child Support (Assessment) Act 1989 the mother is to provide child support to the father for the children for the period from 1 January 2011 to 31 December 2014 (“the period”) by way of payment of half of all school fees, levies, and costs of text books, excursions, and uniforms as and when they become payable for the children while the children attend the College, and the annual rate of Child Support payable by the mother for the period is to be reduced by 100%.
(6)That Order 4 on the third page of the Orders made by the Family Court of Australia on 5 February 2009 be varied by deleting therefrom the sentence: “Each party shall have available an accessible land line telephone number service for use of the children for the purpose of telephone communication”.
(7)That the father and the mother are to utilise a communication book to record only relevant details relating to the children and that communication book is to travel with the children at changeover between the parties.
IT IS NOTED that publication of this judgment under the pseudonym Reeds & Albelo is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT HOBARTHBC209 of 2010
MR REEDS Applicant
And
MS ALBELO Respondent
REASONS FOR JUDGMENT
Applications
1.MR REEDS (“the father”) filed an application in March 2010 seeking orders:
a)that he be able to travel to Disneyland in the United States of America with [X] and [Y] both born [in] 1998 (“the children” or “the twins”) for a period of seven days in May 2010;
b)that MS ALBELO (“the mother”) provide his solicitor with properly completed passport applications for the twins to enable such documents to be issued;
c)that if the mother failed to provide signed passport applications documents then the Registrar of the Family Court be able to sign passport applications on her behalf; and
d)that he be able to retain the twins’ passports.
2.The father also sought a costs order against the mother.
3.In her Response, the mother sought orders as follows:
1. THAT the father’s Application filed the 12th of March 2010 be dismissed.
2. THAT the children … attend [M] School in 2011 and remain at [M] School for the entirety of their high school education, unless otherwise agreed between the parties in writing, or as Ordered by the Court.
3. THAT the mother and father forthwith take all steps necessary to enrol the children in [M] School.
4. THAT under Section 124 of the Child Support (Assessment) Act 1989 the father … provide child support to the mother … for the children … by way of payment of half of all school fees, levies, text books, excursions, and uniforms as and when they become payable for the children while the children attend [M] School, or such other school as the children may attend from time to time.
5. That the payment as set out in paragraph 4 herein is to commence for the 2011 school year.
6. THAT the annual rate of child support is not to be reduced by the child support provided for in paragraph 4 herein.
7. THAT Order 4 of the Orders made by the Family Court of Australia on the 5th February 2009 be discharged.
8. THAT the children have telephone communication with the parent with whom they are not living each Wednesday, such communication to occur between 6.00 p.m and 7.00 p.m, with the absent parent to initiate the telephone call to the children and the other to facilitate that call to the children. Each party shall have available a mobile telephone number for use of the children for the purpose of telephone communication. The children shall be permitted to make telephone calls to the absent parent at any reasonable time chosen by the child.
9. THAT the parents utilise a communication book to record relevant details relating to the children and the communication book travel with the children at changeover.
4.She also sought a costs order against the father.
5.Initially, the parties’ dispute appeared to be only about whether or not the children could go to Disneyland with their father. However, it was clearly wider and more complicated than just that.
Background
6.Where I refer to any fact in these Reasons, it should be regarded as a finding of fact unless a contrary intention is clear from the context.
7.The father and the mother commenced living together in 1996 and separated in early 2006. They are the parents of the twin girls named above.
8.Since they separated, the parties have been involved in various forms of litigation in:
·the Tasmanian Magistrates Court;
·the Family Court of Australia;
·the Supreme Court of Tasmania; and
·the Federal Magistrates Court of Australia.
9.On 5 February 2009 the parties entered into consent orders in the Family Court of Australia (“the earlier orders”) which provided that children should live with them equally on a weekly cycle, apart from the long summer school holidays when a fortnightly cycle operate.
10.Order No.4 of those earlier orders provides that the children are to have telephone communication with the parent with whom they are not living each Wednesday between 6.00pm and 7.00pm and that each party “shall have available an accessible land line telephone number service for the use of the children for the purpose of telephone communication”.
11.The children have spent the entirety of the primary school years in the Catholic school system. However, they completed their time at primary school at the end of 2010. As a result, a decision must be made about which school they will attend in 2011.
The issues
12.On 21 and 22 July 2010 the parties and the children attended reportable Child-inconclusive Counselling. The family consultant involved provided a report dated 26 July 2010 (“the family consultant’s memorandum”) which was admitted into evidence.
13.In her report, the family consultant refers to the major issues as follows:
The issues before the court do not concern the current parenting arrangements but are limited to 'special issues'. The current issue concerns overseas travel, but the issue of schooling for the girls next year will also require determination before the start of the 2011 school year and was raised during each of the interviews.
(The father) seeks orders allowing him to travel with the girls to Disneyland USA in May 2011. (The mother) does not object to (the father) travelling overseas with the girls; however she opposes his application and indicates that she is acting in accordance with the girls' wishes. She says that the girls do not want to travel to Disneyland.
Both parents also have competing proposals for schooling for High School starting in 2011 – (the father) wants the girls enrolled in the public school system while (the mother) wants the girls to remain enrolled in the Catholic school system. (The father) argues that the girls need to change school systems to improve their educational outcome while (the mother) does not accept this and again seeks orders based on the preferences expressed by the children.[1]
[1] The family consultant’s memorandum at page 1.
14.If the court decides that the children should attend a Catholic school, then the issue of who shall pay the school fees will also need to be decided.
15.Further, the mother wants:
·Order No. 4 of the earlier orders to be amended to enable the children to use a mobile telephone in order to communicate with their father when they are in her household; and
·an order that a communication book travel back and forth with the children when they move between households.
The evidence
16.The father relied upon his Application filed 12 March 2010 as well as two affidavits filed 29 April 2010 (“first affidavit”) and 7 December 2010 (“second affidavit”).
17.
The mother relied upon her Response and an affidavit filed
30 November 2010, in addition to a financial statement filed in court on 8 December 2010.
18.Both parties also gave oral evidence.
19.As mentioned above, the family consultant’s report of the child-inclusive counselling was also admitted into evidence and she gave oral evidence.
Relevant law – parenting orders
20.Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act 1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration[2].
[2] Section 60CA
21.Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects.
22.In determining what is in a child’s best interests I must consider the matters set out in section 60CC. It refers to “primary considerations” and “additional considerations”.
23.There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence[3].
[3] Subsection 60CC(2)
24.The court must also take into account those of the “additional considerations” that are relevant[4].
[4] Subsection 60CC(3)
25.It is clear that the court is not restricted to the proposals put forward by the parties. See KB & TC[5].
[5] (2005) FLC 93-224
26.In this matter, I do not need to determine major parenting issues, because those were decided on 5 February 2009. As was observed by the family consultant, the “issues before the court do not concern the current parenting arrangements but are limited to ‘special issues’”. It therefore seems to me that most parenting issues in this case can be determined by a more limited consideration of the section 60CC factors that is usually required.
Overseas travel and passports
27.In his first affidavit, the father said the following (inter alia):
3. I want to take the children overseas to Disneyland in the United States of America during the May 2010 school holidays.[6] The Respondent mother will not agree to that travel. I have put that proposal in the communication booklet that travels with the children. The mother has responded by writing in the communication booklet that the children will not be going overseas on any such trip. The mother was notified on 3rd November 2009 of my intensions and despite my efforts she has not agreed to any such travel.
4. My lawyer has written to the Respondents Lawyer seeking the consent of the respondent mother to such travel. There has been no response.
5. The respondent mother has also told me orally that she will not agree to me taking the children overseas.
6. ……
7. I will need passports for the children and I anticipate that the respondent mother will not sign these either given she does not want them to travel overseas with me.
8. ……
9. The Respondent mother did request to take the children to Bali last year and I was unable to agree with that given the dangerous situation in that country. However that is an indication that the children wanted to travel overseas and that travel would be by aeroplane.
10. I would provide the mother with a copy of return airline tickets 7 days prior to travelling with them. I would supply a hotel booking and a contact telephone number on which the mother could speak to the children.
[6] The father now wishes to take the children to Disneyland in 2011.
11. ……
12. As I understand it the mother is now refusing to agree to the children travelling with me overseas because they do not wish to go due to the air travel. It is true the children do not like to travel on an aircraft.
13. The children are 11 years old [7] and I will have care of them during the period of time I intend to travel overseas. The children previously travelled to Surfers Paradise with me which involved airline travel. The children were reluctant about that air travel but once on the plane they were quite happy. They have since enquired as to when they will be returning to Surfers Paradise.
14. Further the mother has organised for the children to travel to Canberra in November 2010 on a school trip. That will involve air travel. Therefore the mother will enable the children to travel in an aircraft when it suits her despite that the children do not like air travel.
15. As the children are only 11 years old I say it is my choice as to what activities they should do while they are in my care. It is my view that the children will enjoy the trip to Disneyland once they are on the aircraft to the United States of America. In any event as they are in my care at that time it is my responsibility to ensure they are safe. I am certain that such travel will not place the children in danger that otherwise ought to be avoided.
[7] They are now 12 years old.
28.The mother’s affidavit evidence in relation to the children’s possible travel to Disneyland was as follows:
5. I have had very little communication with (the father) in relation to his plans to take the children to Disneyland. In 2009 I requested permission from (the father) to take the children to Bali for a holiday with their aunty, grandmother, their older sister and my sister and her partner. They had purchased a unit in Bali and we were all meant to travel to Bali for a family get together. (The father) said that under no circumstances would he give his permission for the children to travel to Bali as “little blond haired girls get stolen in Bali.”
6. At the time (the father) communicated his refusal to allow the children to attend Bali he said to me “he is putting me on notice” that he was taking the children to Disneyland, in the United States of Disneyland (sic). No further discussions or communication took place between us.
7. Earlier this year I was contacted by Ms E (the father's) travel agent regarding his plans to take the children to Disneyland. She asked me whether I was letting the children travel. I advised Ms E that the girls had raised this holiday and had expressed a strong desire not to go to Disneyland. Ms E said to me that (the father) had told her that the children had expressed an unwillingness to travel to Disneyland also.
8. Both children have said to me that they have told their father on numerous occasions that they do not wish to go to Disneyland with him. The children have said that their father has replied “you will go where you are told”.
9. The children have implored me to either speak to (the father) or inform the Court of their strongly held desires not to travel to Disneyland. They have asked me to tell the “Judge” that they do not want to go.
10. At no stage have I expressed a view that I do not want the children to travel to Disneyland with (the father). Their reluctance and/or refusal to want to go to Disneyland with (the father) is their view. The children are 12 years old and able to express a view as to whether or not they want to travel overseas. I believe they are old enough to make their own decision regarding international travel and I oppose (the father)'s Application so as to ensure the children's wishes are heard.
11. The children do not understand why (the father) is so determined to take them to Disneyland and expressed to me their wish to return to Queensland with their father instead.
12. I do not fully understand the reasons as to why they do not wish to travel to Disneyland however I feel from my discussions with them that the long flight might be an issue, especially for [Y]. She has a heart condition and is acutely aware of her fragility. When the children have seen America on the map the distance from home may also be of some concern to them.
13. Following the time with (the father) in May this year the children returned to my care very upset that (the father) had organised passport photos and other material for the trip. [Y] told me that she said to her father not to “get your hopes up Dad because the Judge hasn’t made a decision, it is up to him”.
14. I was told by the children that (the father) took the children to the offices of Mr John Munro[8] whereupon they were asked by
Mr Munro as to why they do not wish to travel to Disneyland with their father. The children told me that they said to Mr Munro “we just don't want to go, it is too far away”. The children said that Mr Munro said “I think your mother has put you up to this girls”. The girls said they replied “no”.
[8] The father’s solicitor.
15. The children have remained adamant that they do not wish to go to Disneyland.
29.The father’s response in his second affidavit to the mother’s evidence about the children being taken to his solicitor’s office was as follows
3. The children in this matter have never been in Mr Munro’s office.
4. The children have not and were not “interrogated’ by Mr Munro.
5. I attended Mr Munro (sic) office on 28th April 2010. The children waited in the car outside. Eventually I went and got them to come into the building and they waited in the waiting room some 30-40 metres from Mr Munro’s office.
6. When Mr Munro and I came out of his office the children and us both went down one floor in the lift together.
7. Mr Munro has met the children before. He greeted them. He said your Dad tells me he wants to take you to Disneyland but you do not want to go. The children nodded their heads.
8. We said good bye and parted ways just outside the building.
30.I do not need to determine which version is correct in relation to the children attending at the office of the father’s solicitor, but simply comment that it is generally inappropriate for either party’s solicitor to discuss disputed matters with the parties’ children.
31.In relation to of the father’s plan to take the children to Disneyland of the family consultant reported as follows:
In regards to travel, both girls recalled having had “fun” holidays in the past with both parents; interstate in Victoria, as well as camping trips, and ‘pony-club’ camps. In recent years they have enjoyed a local holiday with their mother and older sister, as well as a trip to the Gold Coast theme parks with their father. [Y] recalled that the girls were “really excited” the day before flying to Queensland. Both girls said that they missed their mother during their Queensland holiday. They both spoke about feeling “sad” because of the physical distance in being away from their other parent. [Y] said that she does not feel “comfortable going on planes that far”. She stated that “if mum and dad were together, we may have changed our minds” (about wanting to go to Disneyland).
[X] and [Y] are going on a school trip to Canberra later this year. Apparently, “first of all we didn't want to go” because it was “too far away”, but then a trusted teacher persuaded them by saying “it'd be fun ... all our friends were going”. [X] said that both parents initially accepted the girls’ views about not going, and then accepted that they were going.
The girls were aware that their mother has previously considered taking them on holidays to Bali and to New Zealand. [X] seemed quite positive about these proposals but again expressed concern about the physical distance from home. She said that she was not fearful of going on planes but “just sad”. She said that she worries about each parent while she is away from them, “if something happened ... accident”. [X] said that their father had not allowed them to travel to Bali because “little blond girls get stolen in Bali”. She said that, despite being concerned, “we still probably want to go”, although she later spoke with some ambivalence about the distance and the plane trip, “we weren't too keen on that either”. [Y] said that she had considered going to Bali with (the mother), “yes, sort of, not sure” but that she would say no to going to America with her mother, “I’d say, not comfortable”.
[X] acknowledges that her friends at school cannot understand why she and [Y] do not want to go to Disneyland. The primary reason for her reluctance is that America is “too far away” and that you “have to sleep on a plane”. [Y] said that America is “a really long way away from our parents ... we haven’t been that far away” and “me and [X] don’t feel comfortable about flying at night”. Both girls also acknowledged that watching television shows such as ‘air-crash investigations’ made them feel worried about airplane travel, “we’re fascinated but. ...”. [Y] spoke about having a number of more generalized fears; about the Derwent Bridge collapse (because they have a photograph of this in the bathroom at the father’s home); about car accidents; fires; ships sinking, like the Titanic; running out of petrol when she is on the jet-ski with her dad; sharks; spiders; “scary movies at night”; and heights.
[Y] spoke about her heart condition a number of times. She indicated that (the father) had considered going to Bali as being inappropriate due to the lack of good hospital facilities, as well as having concerns about “little blond haired girls getting stolen”. [Y] said that she had been worried about her heart during their holiday in Queensland, about going on the theme-world rides, “just in case”. [Y] said that she worries when she does cross-country running at school as well. [Y] considers that she might generally do more worrying than [X], “or both the same”. [X] agreed with this assessment, judging them to be fairly equal but with [Y] being somewhat more worried about things in general.
[X] was unsure about how she would feel if the court allows her parents to determine their holiday plans for the girls. She said she would be “a little bit upset” if (the father) still pursued their trip to Disneyland but that she “wouldn't really do anything” to avoid getting on the plane. She acknowledged that the girls sometimes ‘grumble’ about other things, and likened this to their dad ‘grumbling’ about taking her to hockey. [X] said that (the father) has not taken her to hockey training and other extra-curricular activities when she is living at her father's home, because the girls had refused to go to Disneyland last May. The girls also don’t attend ‘pony club’ and related events during their father’s time, as he has stopped attending these since the parents’ separation. [X] said that she feels "upset about missing out. She thought that her dad would be "upset if the court allows them to go to [M] School next year, or will not let them go to Disneyland. She was somewhat scared about his likely reaction. She thought that the worst (the father) might do would be to “not take us to any places”. [X] expressed full confidence that her dad would always love the girls.
[Y] said that (the father) tells the girls “you'll be going where you’re told” when they say that they do not want to go to Disneyland. She said that, if the court allows (the father) to decide about the girls’ holiday arrangements, and he then says they are going to Disneyland, “I’d probably cry and say I'm not going”. She believes this will lead to an “argument”. She described arguments with her dad as being “nasty” and involving the “pink book” that her parents use to communicate. She said that their dad would “talk to us, start shouting, [X] and I would cry, he'd say ‘you're going as told’….dad (would be) saying he’s not being mean”. [Y] acknowledged that “if I got there (to Disneyland) and it was ok, I’d be ok” - indicating that she would not act-out just to be difficult if she did get to Disneyland. [Y] said that “everything is going to change” if (the father) does not like the outcome of the court proceedings. She said that following the interim proceedings, “he sent us without school shoes ... he won't take [X] to choir and hockey and play practice”. Asked what the worst her father might do, [Y] said “shouts ... swear words ... goes really strict”. She admitted this would make her feel scared (7 on a 0 to 10 scale). [Y] also expressed confidence that her dad would always love the girls…
32.Earlier in her report, the family consultant had described how the twins appear to share the same views. She said:
[X] and [Y] present as warm, friendly, happy girls. They impress as being mature and engaging. In interview they were thoughtful and open in expressing their views. Although they were interviewed separately, they present themselves as being of one-view and mainly use the pronouns “we” and “us”. This was particularly evident with [Y], who speaks of “me and [X]” as being one entity. It was not evident whether one twin decides about any specific issue and then the other follows suit, or how they consult together in reaching a consensus.
33.In her oral evidence, the family consultant stated that the children have a generalised anxiety about travelling to the United States. I accept the evidence of the family consultant, and it is clear that, while both twins have wide ranging of anxieties, they are more pronounced in [Y]. The family consultant expressed an opinion that the “free floating anxiety” could become problematic, especially if a parent is very disregarding of the children’s views.
34.I am satisfied that the twins’ anxieties cannot have been helped, and have probably been exacerbated by the father’s thoughtless comments like “little blond haired girls get stolen in Bali”.
35.I am also satisfied from the evidence of the family consultant that if the children were to travel to the United States and the experience was not a positive one, it could have a very serious negative effect upon the children’s relationship with their father. That is relevant to my consideration of sub-section 60CC(2)(a).
36.Unfortunately, the father appears not to appreciate this, and his attitude is clearly reflected in his own evidence, where he said:
As the children are only 11 years old I say it is my choice as to what activities they should do while they are in my care.[9]
[9] Paragraph 15 of his first affidavit.
37.I note from a Family Report in relation to earlier proceedings (that was also admitted into evidence) that the author of that report formed a view in 2007 that it was “of concern that (the father) appears unable to accept information which is contrary to his own views”.[10] Unfortunately, little appears to have changed in the intervening three years.
[10] Paragraph 15 of the Family Report dated 15 August 2007.
38.Sub-section 60CC(3)(a) requires me to have regard to “any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views”. Clearly, a child’s “wishes” must form an important part of the child’s “views”.
39.The Court considered the question of children’s wishes in H v W.[11] Fogarty and Kay JJ, in a joint judgment said;
The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children. There can be little doubt that there has been a perceptible change in the approach to the wishes and feelings of children not merely in custody cases in this Court but across the wider spectrum of society generally.[12]
[11] (1995) FLC 92-598
[12] At page 81,944
40.Their Honours approved of the comments of Hannon J in Doyle and Doyle where he had said:[13]
If the Court is satisfied that the wishes expressed by the child are soundly based and founded upon proper considerations as well thought through as the ability and state of maturity of the child will allow, it is appropriate to have regard to those wishes and to give such weight to them as may be proper in the circumstances.
[13] (1992) FLC 92-286 at 79,128
41.In a separate judgment in H v W, Baker J said:
The wishes of children should not be discounted simply because they are expressed by children. The weight to be given to the wishes of a child depends upon the individual child and an assessment of the validity of the wishes must be made by the trial judge in each individual case. Such an exercise will require a consideration of both the child’s level of maturity and understanding.[14]
[14] At page 81,967
42.In this matter, the children are described by the family consultant as follows:
(The children) present as warm, friendly, happy girls. They impress as being mature and engaging. In interview they were thoughtful and open in expressing their views.
43.The children were 12 years old at the time of their interviews and were expressing clear wishes not to go to the United States of America. I am of the opinion that I must give significant weight to those wishes.
44.Clearly, the father believes that the children’s wishes about travelling to Disneyland have been significantly influenced by the mother in direct response to his refusal to allow the children to travel with her to Bali.
45.On 3 November 2009 the father wrote the following (inter alia) in the parties’ communication book:
Please be aware that I give you notice that I intend to take the girls to Disneyland (America) before they are twelve. The trip will be for 5 nights + travelling. I will expect you will reply next access due to the need for passports.[15]
[15] His writings on that day will have done little to foster a spirit of cooperation, because the statement quoted above followed other unpleasant comments, including one where he says to the mother that she “must be thick” (his emphasis).
46.On 9 November 2009 the mother replied:
Thanks for asking re Disneyland!!!
Unfortunately your reasons for not allowing me to take girls to Bali all the same reasons I am saying No to your request.
Don’t bother coming back with any further remarks or comments on this issue.
47.Certainly, the mother’s statement in her affidavit, that at no stage had she expressed a view that she did not want the children to travel to Disneyland, was not entirely correct, given what she said to the father in the communication book on 9 November 2009. However, when her statement in her affidavit is taken in the context of the paragraph in which it appears,[16] I conclude that she meant that she had not ever expressed a view to the children that she did not want them to travel to Disneyland.
[16] Paragraph 10 of her affidavit.
48.Even if I am wrong about that, the children’s concerns about travel to Disneyland are clearly real and should be given appropriate weight.
49.Consequently, when I balance what are only possible benefits of a trip to Disneyland against the probable negative consequences, it is very clear to me that those probable negative consequences far outweigh any possible benefits. Consequently, such a trip should not take place and I will therefore dismiss the father’s application.
Schooling
50.Although it is clear from the family consultant’s memorandum that children’s schooling in 2011 has been an issue for some time, the father did not file an amended application. I accept that the mother waited for him to file such an amended application but, when he did not do so, she sought orders in relation to the children’s schooling in her Response filed at the eleventh hour.
51.In her affidavit the mother said the following:
16. (The father) and I have been unable to agree which school the children should attend for their high school. They are due to commence high school next February, 2011.
17. The children have been enrolled since the commencement of their schooling in a Catholic school, [S]’s. [S]’s is a feeder school for [M] School which is a Catholic high school located in [omitted].
18. The school is close to both (the father) and my residences, as we both reside just outside [omitted], albeit on opposite sides of [omitted].
19. Almost all of the children’s friends and classmates from [S]’s are attending [M] School. The children are very keen to attend [M] School.
20. The girls best friend … whom they have attended school with since Kindergarten, is attending [M] School. Only 6 students from the children’s grade 6 class are not attending [M] School next year. These students are attending either [schools omitted].
21. There is a school bus which the children will be catching from [omitted] with their school friends if they attend [M] School.
22. …
23. Both girls are very distressed that there is no surety they will be going to [M] School. They have told me that it has been a subject of much discussion at school as to where each person is going. They have been very distressed that they have not been able to confirm they are going to [M] School.
24. The children want to continue their education with their friends. They are very nervous and extremely anxious about having to attend a new high school in a completely new environment where they do not know anybody.
25. Both girls greatly enjoy attending [S]’s. They enjoy going to chapel. Both girls believe in God. They participate enthusiastically in all the chapel activities.
26. [X] is in the [S]’s choir. She greatly enjoys the choir.
27. Earlier in 2010 the children were assessed by educational psychologist, Ms C, at (the father’s) request. The report prepared by Ms C was given to both (the father) and I. The report advised that the children were advanced socially, but had some difficulties with literacy.
28. The children have had additional assistance with literacy with Ms L throughout their time at [S]’s. The children have had spelling reading assistance. The girls each receive assistance on three occasions each week to help with their literacy.
29. The children have also had additional assistance with mathematics.
30. There is significant assistance given to the children in the transition between [S]’s to [M] School. The Year 7 Coordinator and year 7 teacher from [M] School attend [S]'s to talk to the children’s class teacher.
31. The children’s academic progress, additional support they receive at [S]’s, their social needs and any special class placement needs are discussed. Any medical issues are also addressed and covered, which is relevant to [Y].
32. There is also conversation as to how the children are progressing generally and consideration as to appropriate class placements that would be best for the girls based on their progress at [S]’s.
33. [M] School runs a literacy enhancement program at the school. The girls will be tested as to their reading and comprehension. This test reports as to their needs and based on this they are placed into a particular program which is best suited to their literacy requirements.
34. [M] School has very good sporting, community service, music, dancing and choir opportunities. Chapel is run within the education program within the classroom.
35. The girls are very keen on horse riding. [M] School sponsors equestrian events for its students. Students can ride for [M] School and [M] pays for the entrance and costs of the events. [M] sponsors an equestrian team for the school.
36. I am very concerned about the effect on our children if they have to attend [R] School.
37. The children will be very anxious and distressed. Attending [R] is directly against their wishes. Rather than finding attending high school an exciting event, which they can look forward to and anticipate, they will be apprehensive and anxious. This is a very important time in their life and I am very concerned as to the long term effect on their confidence and development both academically and socially if they have to attend a school they do not wish to go to and do not settle in well.
36. If the girls wanted to attend [R] High School I would support them. The children are absolutely adamant however that they want to attend [M] School.
52.In his second affidavit, the father had this to say under the heading “Schooling”:[17]
[17] Grammar, spelling and punctuation have not been corrected.
9. The children have attended a Catholic School for their Primary School Education. That is [S] School in [omitted]. The children are currently in Grade 6.
10. There have been ongoing difficulties with the children Education. Firstly the children have not excelled academically. There grades are low. I have voiced my concerns to the school. I have organised extra tuition at home for the children for maths. That was done by Ms L. I paid for that tuition.
11. Attached to this my affidavit and marked Exhibit A are the childrens school assessments for 2009 as graded against the national standard. It shows that the children are rated at well below average.
12. Attached to this my affidavit and marked B is the school reports for the children. The results do not accord with the national Standard assessment where the girls were rated well below the required standard. Both the children are failing with their maths skills; are poor at spelling. The excuse being offered is that the girls are working at their ability level. I do not accept that proposition. In my dealings, with the children they need to be motivated to learn their numbers and practice there maths. I view the schools approach and assessments partially as covering for their lack of capacity to get the children to work at the best level they can achieve.
13. I have had numerous meetings with the childrens techers and their school principal about the childrens progress at school. It has been a very frustrating to listen to the school justified the childrens lack of achievement. I am of the view that the children can achieve at a higher level.
14. The Catholic School had the children assessed. Attached to this my affidavit and marked Exhibit C is a copy of those assessments. One is a Report on action Assessment Interview which shows the children only have a basic understanding of mathematical concepts. The other is a professional assessment but really only stating at what level the children are achieving at.
15. I have no faith in the Catholic Education System to give my children the best education. I feel they will continue to justify the lack of teaching my children the basic skills in mathematics.
16. I have attended [M] School and had a meeting with the Education co coordinator and the Principal. I wanted to assess the extra help that may be able to be given to the children to help them improve their basic skill levels. That occurred on 5th October 2010 at 9.30pm. The school does not offer additional assistance.
17. I also attended [R] School to gauge the level of support for the children. I explained the situation to the school and took along the childrens assessments They will assess the child when they start school and if the children need extra help they will provide a program. There are 850 students at [R] High. There will be 185 students in year seven which means they have the capacity to offer the children specialised teaching.
18. There is a school bus to [R] School. The children have attended a orientation at [R] school last week. The children have meet their class mates and school teachers. They have been placed in Grade 7 [omitted]. The children appeared to enjoy their experience at [R]. They were there for three hours. They did not complain. The children are not opposed to attending [R]. Some of their current classmates are attending schools other than [M] School.
19. For the extra $4000 each for school fees the children could have a private tutor as well as have extra help in the Public system. I feel [R] High is a better school than [M] School. It will give the children a better chance at having a more successful education. Attached to this my affidavit and marked Exhibit D is the documentation I have received from [R] High School. It indicates a high level of organisation something I found lacking in the Catholic Education System.
20. I have always been the driver of ensuring that the children do well at school. I want to be able to attend the school and engage in the children education. I have not been able to do that in the Catholic education system.
21. The children have not pressed the issue of which school they want to attend. In any event such a big discision ought not to be based on where the childrens friends go to school. The children will make new friends. There will be many different children attending [R] High. There will be an oppourtunity to make new friendships. The childrens cousin in also in attending [R] High School next year in grade 7.
53.The father says that the children are not performing in accordance with their abilities. Indeed, he says that the school that they currently attend use the “excuse” that the girls “are working at their ability level”. He adds: “I do not accept that proposition.” He says that at paragraph 12 of his affidavit quoted above.
54.In paragraph 13 he goes on to say that he has had numerous meetings with the children’s teachers and school principal about their progress at school, and that it has been very frustrating to listen to the school justify the children’s lack of achievement. He says that he is “of the view that the children can achieve at a higher level”.
55.Unfortunately, I see this as yet another example of the father being “unable to accept information which is contrary to his own views”.[18] The father does not claim to have any qualifications in the fields of education or psychology. However, he is clearly unable to accept the opinions of people who do hold those qualifications.
[18] See paragraph 36 above.
56.In 2009 both girls had been assessed as having below average intellectual ability (IQ 79). Because the father appeared unable to accept that assessment, they were assessed further by an independent educational and developmental psychologist (“the independent psychologist”) late in 2009. The father annexed the full reports of the independent psychologist’s assessments to his second affidavit. They show very clearly that each girl has an IQ that is below the average. [X]’s Wechsler Intelligence Scale for Children 4th Edition (WISC-IV) Full Scale IQ (FSIQ) was assessed at 82 and [Y]’s WISC-IV FSIQ was assessed at 79.
57.Importantly, the independent educational and developmental psychologist reported that each girl is achieving at the level expected for young people with their WISC-IV FSIQs. Notwithstanding the clear and emphasised statements in each of those reports that the children are performing educationally in accordance with their intellectual abilities, the father appears unable to accept those statements.
58.I consulted the internet in an effort to help me and the parties to understand the significance of the children’s IQ test results. The Wechsler IQ classifications are as follows:[19]
[19] Source: cellpadding="0" cellspacing="1">
Classification IQ Limits Percent Included Very Superior 128 and over 2.2 Superior 120-127 6.7 Bright Normal 111-119 16.1 Average 91-110 50 Dull Normal 80-90 16.1 Borderline 66-79 6.7 Defective 65 and below 2.2 59.The table shows that approximately 91% of the population have IQs greater than 79. This means that, [Y]’s IQ test results put her below that 91% and [X]’s results are only marginally better.
60.The mother appears to have a better understanding that the children’s IQs limit their academic abilities. The family consultant reported that “She thinks that both parents need to accept that the girls are ‘not rocket scientists’.” That suggests to me that she has a more realistic view of the children’s academic abilities than the father.
61.It is a truism that we cannot all be rocket scientists but, in my opinion, the father and the mother can be very proud of these girls who are reported to be “warm, friendly, happy, mature and engaging” by the family consultant and “friendly, polite and cooperative” by the independent psychologist. It is also clear from their school reports that each child is very hard working and highly motivated to do as well as she can.
62.The father’s objections to [M] School clearly arise to a large extent from the “difficulties” that he had had in the past with the Catholic education authorities. I find that those difficulties have arisen in very large part from the father’s inability to recognise that his two daughters have below average intellectual capacities, and his blaming their school for the children not performing better.
63.The father is clearly convinced that [R] School is a better School than [M] School, notwithstanding that the information he downloaded from the MySchool website shows that [M] School is performing better in all five areas tested in both years 7 and 9. [20]
[20] Annexure F to his second affidavit.
64.However, I do not propose to make any determination about which is the better school per se, because when one poses the question: “Which is the better school?”, it must immediately raise the additional related question “better for whom?”. In this matter, I must only be concerned about which school will be better for these particular children.
65.The family consultant reported on the children’s wishes about schooling as follows:
In regards to the schooling, [X] and [Y] both said that they wanted to go to [M] School as this is the feeder school for their primary school and their current close friends will be going there. This appears to be particularly significant tor [Y], who expressed concern about having to be with “strangers” at a new school.
66.Later in her report she said that it is not in dispute that the girls would prefer to attend [M] School. In his second affidavit the father appeared to downplay that by saying: “The children have not pressed the issue of which school they want to attend.”
67.I repeat what I said about children’s wishes at paragraphs 37 to 41 above and add that I must give significant weight to these children’s wishes in relation to schooling also.
68.I am satisfied from reading the family consultant’s memorandum, the affidavits and hearing the evidence (particularly the evidence of the family consultant), that the children have a very marked preference for [M] School and they will be very disappointed, even distressed if they cannot attend that school. Indeed, if they are not able to go to that school, it is reasonable to surmise that they will believe it to be the result of the father’s opposition to them going to [M] School, and that could have a lasting adverse effect upon their relationship with him.
69.Overall, I conclude that (subject to what I say below about payment of school fees) the children should continue their education within the Catholic education system at [M] School.
Mobile or landline telephone?
70.In relation to this issue, the mother said:
I also seek that the Order made by the Court on the 5th of February 2009 in relation to each parent having a land line telephone number for the children to communicate with them while with the other parent be discharged. I seek that the Order be identical save that we be able to have a mobile telephone number for use of the children. I do not have a landline and am simply unable to afford to have a land tine connected as well as maintaining a mobile telephone. I require the mobile telephone for the children to contact me as required. As I work as a [omitted] I am often not in the office.[21]
[21] Paragraph 58 of her affidavit.
71.The father gave no evidence about this but his counsel argued against the need for the father to have a mobile telephone on what appeared to me to be an argument of the unreliability of mobile telephones in general. I make the following comments about that:
·Firstly, while the order sought by the mother appears to require the father to have a mobile telephone, her affidavit evidence appears to relate only to her own ability to have a mobile telephone service. This appears to be implicit in her statement: “I seek that the Order be identical save that we be able to have a mobile telephone number for use of the children.” Her use of the word “we” in that sentence appears to suggest that she only requires a mobile telephone to be used in her own household. Further, she sets out in her affidavit her reasons for preferring to have a mobile telephone.
·Secondly, I do not believe that I can take judicial notice of the unreliability of mobile telephone systems and I would require some evidence before making any findings in that regard.
·Thirdly, I do not consider it appropriate to determine what sort of telephone service either party should have. All that is required is that it should be in working order, and that is implicit in the balance of Order No. 4 of the Orders of 5 February 2009 if the reference to a landline telephone is removed.
72.It therefore appears that all that is necessary is to vary Order No. 4 of the Orders of 5 February 2009 by deleting the sentence referring to a landline telephone, so I will do so.
Communication book
73.The mother’s evidence about this was:
57. I also seek Orders that [Mr Reeds] and I utilise a Communications Book and that this travel with the children at changeover. We already utilise a book however [Mr Reeds] has not been sending the book with the children at changeover.
[Mr Reeds] recently appeared at my workplace to hand over the communications book. This is not appropriate. There is no reason why the book cannot travel with the children at changeover in one of their bags.74.The father gave no evidence about this at all and I can see no good reason why an order should not be made in terms sought by the mother. However, I have noted that the father has used the communication book to be abusive to the mother so I will add to the order sought by the mother that the book is only to be used in relation to communication about the children.
School fees and Child Support
75.The mother seeks an order under Section 124 of the Child Support (Assessment) Act 1989 (“the CSA Act”) that the father provide child support for the children by way of payment of half of all school fees, levies, text books, excursions, and uniforms as and when they become payable for the children while the children attend [M] School. That order is strenuously opposed by the father.
Relevant law
76.Division 5 of the CSA Act enables Courts to make Orders for the provision of child support otherwise than in the form of periodic amounts paid to the carer.
77.Sub-section 124(1) provides:
Where:
(a) a carer entitled to child support or a liable parent makes an application under paragraph 123(1)(a); and
(b) the court is satisfied that it would be:
(i) just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(ii) otherwise proper;
to make an order that the liable parent provide child support for the child otherwise than in the form of periodic amounts paid to the carer entitled to child support;
the court may make the order.
78.Section 125 provides that if the court makes an order under section 124, the court must state in the order whether the annual rate of child support payable under any relevant administrative assessment is to be reduced. If the court states that the annual rate of child support is to be reduced, then the court must also state in the order either that the annual rate of child support is to be reduced by a specified amount or by a percentage.[22]
[22] Sub-section (3)
79.Section 125 also provides that the court may state that the annual rate of child support payable is not to be so reduced only if it is satisfied that, in the special circumstances of the case, it would be just and equitable as regards the child and the parents, and otherwise proper.[23]
[23] Sub-section (2)
80.In deciding whether an annual rate should be reduced or not, the court must have regard to any relevant matters mentioned in subsections 117(4), (6), (7), (7A) and (8) of the CSA Act.[24]
[24] Sub-section (5)
Discussion re Child Support
81.Counsel for the father argued firstly that I had no jurisdiction to make the order sought because section 124 of the CSA Act specifically provides that the court can “make an order that the liable parent provide child support for the child otherwise than in the form of periodic amounts” (my emphasis). As I understood the father’s counsel’s argument, I cannot make such an order simply because his client is not currently “the liable parent”.
82.It was common ground that the mother had only recently become liable to pay Child Support to the father. Her affidavit stated:
52. A Child Support Assessment was made on the 219l of September 2010 for me to pay to (the father) the sum of $7.90 per fortnight.
83.In her oral evidence, the mother stated that this was the first time that she had been assessed to pay Child Support to the father, and she expected this to be adjusted within a short time. She was not challenged about that. However, the fact remains that at the time of the hearing she was assessed to pay the relatively miniscule amount of $7.90 per fortnight by way of Child Support to the father.[25]
[25] Less than $2.00 per week per child.
84.Section 5(1) of the CSA Act provides that a “liable parent” in the case of an administrative assessment is “a parent by whom child support is payable for the child under the administrative assessment”. Hence, counsel for the father’s argument was that because the mother had been assessed as the “parent by whom child support is payable”, an Order could not be made against the father under section 124 as sought by the mother.
85.In her arguments, counsel for the mother referred me to the 2003 decision of Brown FM in N & B,[26] and in particular to paragraph 21, where he said:
If the parents have a “shared cared child”, the basic formula is applied as if both parents have the child for 50% of the time and, by necessary implication share equally in the costs of caring for that child. In a technical sense, they are both considered liable parents, as both are assessed, on their income, for child support.
[26] [2003] FMCAfam 72
86.In my view, Brown FM is correct that in a shared care arrangement both parents are “liable parents” and that in each case a set off makes one of the parent’s liability nil and the other parent’s liability may be a positive amount.
87.I am further of the view that, if the submissions by the father’s counsel were correct, they would make a mockery of the provision in section 4 that the principal object of the CSA Act is “to ensure that children receive a proper level of financial support from their parents” and the additional particular objects in section 121 to ensure that “children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both their parents” and that both parents “share equitably in the support of their children”.
88.I conclude that the father is a liable parent but with a liability of nil, and I further conclude that I do have jurisdiction to consider the mother’s application.
The parties’ financial circumstances
89.The mother filed a Financial Statement. The father did not file one, nor did he address financial issues to any great extent in his affidavits. However, I do not consider that the mother should be disadvantaged by his failure to make full disclosure, especially as no application was made for an adjournment on his behalf. In financial matters, the obligation to make full disclosure is absolute. Kannis & Kannis is reported in an edited version in relation the issue of the removal of a next friend.[27] However, in the unedited version of the decision of Nicholson CJ, Buckley and Kay JJ delivered on 24 December 2002, their Honours said:
Whether the non-disclosure is wilful or accidental, is a result of misfeasance, or malfeasance or nonfeasance, is beside the point. The duty to disclose is absolute.
[27] (2003) FLC 93-135
90.The mother is like so many in our society, in that she appears to have expenses that exceed her income. She describes her financial situation as “extremely strained”.[28] However, I accept her evidence that she is assisted financially by a supportive family – for example, her sister is helping her with her rent.
[28] Paragraph 45 of her affidavit.
91.Further, the mother is pursuing a claim for financial adjustment in the Supreme Court of Tasmania under the Relationships Act 2003 (Tas). I cannot say how much she will receive, but I note that the Supreme Court of Tasmania may make any order it considers just and equitable having regard to:
·the financial and non-financial contributions made directly or indirectly by or on behalf of either or both of the partners to the acquisition, conservation or improvement of any of the property; and
·the financial resources of either or both of the partners; and
·the contributions, including any contributions made in the capacity of homemaker or parent, made by a partner to the welfare of the other partner or to the welfare of the family.[29]
[29] See section 40 of the Relationships Act 2003 (Tas)
92.The father did concede, albeit somewhat reluctantly, that the mother might get something. However, I gained the clear impression that the father is not keen to advance those proceedings and is dragging his heels in relation to them. Consequently, I can only assume that he does not consider it to be in his financial interests to advance those proceedings, probably because he is aware that he will have to make a payment of some significance to the mother.
93.The father did not dispute the mother’s evidence that he is effectively the owner of five pieces of real estate, and he resides in the parties’ former home on one of those properties.[30] The mother does not own any real estate in her own right.
[30] Owned by company set up during the parties’ relationship.
94.The father is a [occupation omitted] and the mother is a [occupation omitted]. Because the parties share the care of the twins care equally, the current Child Support assessment suggests that the mother’s income is higher than that of the father to a slight degree. However, I accept the mother’s evidence that the Child Support assessment is likely to be “corrected” before very long. I also I accept that, until the parties received the latest Child Support assessment, the father had at all other times since separation been liable to pay Child Support to the mother. It is therefore reasonable to conclude that the father’s income has generally been higher than that of the mother.
95.It is clear that the parties jointly made the decision to educate their children in the Catholic system and since their separation in early 2006 they have shared the costs of their education equally (save that the father would not contribute to a recent school trip).
96.Overall, it is reasonable to conclude that the father is in a better position to contribute to the children’s education costs. However, it is to the mother’s credit that she is prepared to meet a half share of those costs, even in spite of her currently strained financial situation. I am satisfied that, if it is needed, the mother will put her Supreme Court settlement (whatever that might be) towards the children’s education or that her family will help her if the need arises.
97.In the circumstances, I conclude that it is just and equitable for the father and the mother to each contribute half the costs of their children’s education at [M] School and that such should reduce each party’s annual rate of Child Support payable to the other to nil. Because I have determined that both parties are “liable parents”, I will need to make orders that require each of them to pay half of the costs at [M] School.
98.I also conclude that such is otherwise proper. It should not affect either party’s or the children’s entitlements to an income tested pension, allowance or benefit or the rate of any such pension, allowance or benefit.
99.I will therefore make orders that provide for the parties to share the children’s costs at [M] School and that such will substitute for either party’s full annual rate of Child Support.
100.Because I would expect the children to be at [M] School until the end of Year 10, it seems appropriate to continue this form of Child Support until the end of 2014.
General comment
101.I realise that the father will be very disappointed with this decision but I hope that he will play his part properly in relation to the children’s continuing education. While I make no decision about it at this time, if the father continues his aggressive approach to the Catholic education authorities, it may become necessary in the future to further vary the Orders of 5 February 2009 to allocate sole parental responsibility in relation to educational matters to the mother.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
Date: 28/1/11
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