Reynolds and Reynolds

[2007] FamCA 42

FAMILY COURT OF AUSTRALIA

REYNOLDS & REYNOLDS [2007] FamCA 42

PRACTICE AND PROCEDURE – Registrar – Review of decision

Family Law Act 1975 (Cth)

APPLICANT: Mrs Reynolds

RESPONDENT: Mr Reynolds

INDEPENDENT CHILDREN’S LAWYER: Mr A Hale

FILE NUMBER: MLF 5566 of 2003

DATE DELIVERED: 19 January 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 19 January 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cantwell

SOLICITOR FOR THE APPLICANT: Kelly & Associates

COUNSEL FOR THE RESPONDENT: Mrs Mandelert

SOLICITOR FOR THE RESPONDENT: Forte Family Lawyers

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Hale & Wakeling

Orders

1. That until further order the wife be permitted to change the schools of the children J born in February 1998 and D born in June 1994 from B College to M School for D; and S School for J, commencing with term one of the year 2007.

2. I otherwise dismiss the application of the parties, and that includes the response documents and those applications that form the basis of the review process.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 5566  of 2003

Mrs Reynolds

Applicant

And

Mr Reynolds

Respondent

REASONS FOR JUDGMENT

1. These are proceedings before me today sitting in a list as the judge reviewing a decision of Senior Registrar Fitzgibbon.  I have indicated to the parties that I have not read the judgment of the Senior Registrar on the basis that I am to deal with the matter effectively as a de novo hearing and accordingly, I have read all of the material other than the judgment, though I am obviously aware of the orders that Senior Registrar Fitzgibbon made.

2. Mr Cantwell on behalf of the wife, who was the respondent to the review application, set the historical matters for me and for the sake of future proceedings I set them out.  They are obviously truncated but for the purposes of my judgment they set the base.

3. The parties commenced their cohabitation in May of 1992 and married in September 1993.  The wife is aged 39 years and the husband 51.  There are two children of the marriage and who are the subject of these proceedings.  D was born in June 1994 and is currently 12 years of age.  Until now he has been a student at B College and in 2006 he was in Grade 6, commenced there, I understand in 2005.  J was born in February 1998 and is almost nine years of age.  He was in Grade 3 at B College in 2006, having commenced in the kindergarten stream at the private school in about 2002.  It seems common ground that J will repeat Grade 3 in 2007. 

4. The parties separated initially under the one roof in August of 2003 and physical separation finally occurred in September 2003 when the wife and the children vacated the A home.  The wife and the children are currently living in M.  The wife is engaged primarily in home duties but she works part‑time as a waitress.  I have heard some evidence about the waitress position.

5. Wilczek J made an order on 24 September 2003 by consent of the parties which might be described as probably standard orders at that time.  Part of those orders included that the husband have the sole occupancy of the former matrimonial home.  As the proceedings went on in the system orders were made by consent on 4 February 2004 that the parties share the joint long-term responsibility for the children but in respect of their daily care they have a week about arrangement.  The property proceedings between the parties were still unresolved and unfortunately are still unresolved.

6. On 6 December 2004 the husband suffered a stroke and that effectively initiated what has now led to a dispute between the parties over the children.  At that time, of course, the arrangement was a week about one, but the wife clearly took over the full‑time care of the children shortly thereafter.

7. On 31 March 2006 Senior Registrar Fitzgibbon made an order on an interim basis suspending the existing parenting orders and ordered that the children live with the wife.  On 7 July 2006 Senior Registrar Fitzgibbon made an order that appointed Mr B as the psychologist to assist the court in relation to parenting orders.  On 5 September 2006 the Senior Registrar made an alteration to an earlier order which effectively allowed D to be at liberty to join J in respect of the time that he spent with his father.

8. There have been other orders made between the parties in respect of the children including that there be counselling at the O Centre.  I do not propose to go into any great detail about those orders because they do not necessarily assist in the determination of the issue that I have today. 

9. What started the problem before me was that the wife made a decision to remove the children from B College.  It is put by the husband that that was a unilateral move.  Both parties, for the purposes of this proceeding today, have filed a number of affidavits and I have read them all.

10. The wife's case was that she works part‑time, she has no child support from the husband and she received no contribution from him in relation to school fees.  In addition she has a number of debts which are quite significant.  She currently owes $34,500 or thereabouts to Centrelink as a result of an overpayment and that, no doubt, will have to be paid in due course.  In addition to that debt there are legal fees and credit cards and then we come to the major problem, which is the B College fees.  In her affidavit the wife referred to the debt as $30,000 but it now transpires that with various credits, the debt is about $16,000.

11. The wife's current position is that she is living probably outside of her means and in her affidavit she referred to the fact that she was receiving assistance from a charity group for matters such as meals.  She is employed as a waitress in a restaurant in the city about three days a week from which she earns $230 for which she works from 10 am to 2.30 pm and with her assisted funds from Centrelink she can get up to about $475 per week.  It is quite clear that having to pay for her own living expenses as well as the children that she is right on the poverty line.  She receives no child support, as I said, and has deposed to the fact that her sister has been helping her with school fees.

12. She does own a flat with her sister which has been valued, apparently, at about $315,000 but there is a liability to the sister of $150,000 being the sister's entitlement arising out of an inheritance issue.  So her equity in that flat is about $165,000.  Leaving that issue aside the parties have a home with a very small mortgage and an equity of something like about $450,000.  Apart from the home there is a small amount of superannuation of about $79,000.  Notwithstanding the very modest assets the parties have, they have been unable to resolve the property issues to date.

13. I have read the affidavit of the wife in relation to schools and what she did.  She deposes to the fact that she made a number of inquiries, albeit unknown to the husband, and I have noted that ultimately she has settled for D on the M School for Year 7.  She has given some considerable detail about what the school offers.

14. In respect of J she has set out in her affidavit that she made a number of inquiries about various schools including, like in respect of D, schools that had the Catholic faith as their background.  In respect of J the wife settled on S School.  She set out in her affidavit the various things that that school has to offer for J.

15. That caused some considerable consternation for the husband and I shall turn to his position in a moment.  But he points to the, and I put this generally, inadequacies of those schools by comparison to what the private school, B College, had to offer.  As I pointed out during the proceedings I do not think I am in a position to make any determination, on any of this material, which school is better than the other and I propose not to do so.

16. In terms of the wife's bottom line, she says that she cannot continue to do what she has been doing.  In her affidavit filed on 7 December at paragraph 20 she reported that the husband's response to the recommendation of B College that J repeat Grade 3 was unhelpful.  She deposed to the fact that on 7 November 2006 he stated to her:

    Because I am so bright and intelligent having married you, an uneducated person, you have dumbed down my genes.

17. I do not place any great emphasis on that particular comment save that it becomes abundantly clear that the relationship between the husband and the wife is deteriorating.  That is very sad having regard to the fact that as little as just over two years ago the parties were sharing responsibilities for these children on a week-about basis. 

18. The wife goes on in a very recent affidavit which I gave leave to be filed this day, to say that the children are obviously aware of the fact that their mother wishes them to change schools and they are keen to start there.  Sadly, however, with her current financial position, she has had to seek assistance from the state school relief fund in respect of what would otherwise be accepted things at a private school such as clothing and school bags.

19. To add to her calculations, she determines that by not having to drive the children to B College but driving locally, she will save herself somewhere between $80 and $100 per fortnight.  Having regard to the matters that I accept in relation to her financial position to which I have earlier referred, that is a significant amount of money which, if it remains in the household, can only benefit the children.

20. I am extremely troubled about the fact that on what I was told the costs of attending B College for 2007 would total $26,500 or thereabouts before any extras such as uniforms and books are taken into account.  If, and I shall come to this in some detail in a moment, B College demanded that the arrears of $16,742 be paid prior to the children getting back into the school again, then the current year would see someone paying something in the vicinity of $43,000. 

21. As is also troubling, Mr Cantwell pointed out that the husband did have a Mercedes-Benz which he received and sold but none of that money went towards the school fees.  I cannot make any findings about those sorts of things but it would seem that the wife has struggled to meet the school obligations.  How she has done that is somewhat perplexing. 

22. Mr Cantwell commented that the husband's very recent proposal that he, the husband, bear the responsibility for the payment of the school fees and that they come out of his property settlement was not appropriate.  He pointed out that it was unknown as to when the property case would be heard and we still have to deal with the issue of the prosecution arising out of the dispute with the child.  It also seems to me to be a relatively short-term fix, and that becomes relevant when I look at the husband's financial position.

23. Mrs Mandelert on behalf of the husband has come into the case very late and has been dealing with the material that the husband has prepared himself.  I make no criticism of the husband for the preparation of his material because it has, in most part, turned my mind to the issues that I have to deal with.  The husband makes it clear that he wants a shared arrangement again.  He points to and complains about the wife's unilateral arrangement in relation to the school change.

24. Mrs Mandelert pointed out that it was rather odd, that having made the unilateral arrangement during the middle of 2006, the wife now seeks permission of the court in relation to matters that were well and truly advanced if not completed.  Again, I do not make any great criticism of the parties in respect of that but it points to and concerns me that their relationship is deteriorating to such a state that there can be no consultation between them. That is very important in respect of decision-making and to matters of law that I shall come to in a moment.

25. Mrs Mandelert was also critical about the fact that the wife had spoken to the teachers at B College but they had not bothered to contact the husband.  That might very well be a criticism of the school as much as of the wife but it depends also on what relationship the school had with the husband.

26. Mrs Mandelert also complained that there have been unilateral decisions made by the wife about the time that the husband was to spend with the children. I have not taken that into account having regard to the fact that there is a significant dispute between the parties over the children and that is made no doubt worse by the forthcoming proceedings in the State Magistrates Court.

27. The husband, for his part, points to the fact that the children only know B College.  He said that the wife did not have a problem with B College but as Mr Cantwell points out, things can change.  The husband and wife, according to the husband, are both of the Catholic faith and he sees it as very important that they continue in that strain of education.  He wants to be involved in their education.  My concern about that is that there are limitations having regard to the amount of time that he can spend with the children and the fact that this court has already said that one of the children who is still very young, has the whip hand.

28. The other point that Mrs Mandelert makes which has a concerning aspect is that to put J in primary school at this stage will mean that he will have to move again when he moves to secondary education.  But I suspect that the answer to that complaint is that children of that age are resilient and make friends easily.

29. To support his argument that he should take over the responsibility for the financial matters in relation to the schooling, Mrs Mandelert handed me a letter which was undated but I accept was from the Department of Justice.  What it says is a little hard to follow but it would seem that the department is proposing to run a project in which the husband's expertise, presumably in relation to gambling networks, may be able to be used.  As Mrs Mandelert, I think, correctly pointed out, he is hopeful he will be successful but there are no guarantees.

30. The husband has had discussions with B College over school fees and I accept that.  I have looked carefully at the exhibits to his affidavit but unfortunately I am unable to make any determination of exactly what B College's position really is.  I am comforted by the fact that I am not alone in that concern because Mr Hale, who is the independent children's lawyer, had the same concern as to exactly what the school meant.  Suffice to say that the husband's income is unknown, the wife's income is about the same as what the school fees would be and the property settlement seems to be a long way away.

31. Mr Hale is the independent children's lawyer.  He made it very clear that there was no criticism of the husband by virtue of his diminished role in the lives of the children but I received a very insightful report handed to me from Mr B who is the psychologist appointed by the court order to assist the court in parenting matters.  It is interesting to note that the wife's position is that notwithstanding there was a shared arrangement between she and the husband in respect of the children, her complaint was that it did not necessarily work.

32. It is quite clear from reading the report that the wife's position is that she cannot reason with the father.  One might get a little bit of an insight into that from the comment and opinion of Mr B.  He said that the boys are both happy living with the mother.  They like attending B College but one presumes their continuing there may be financially impossible.  I appreciate that that is my task and not Mr B's but it is an apt comment in these circumstances. 

33. According to Mr B, one result of the conflict between these parties, and which he describes as very pervasive, is that it seems that whilst the father may be over-strict and rather too high in his expectations, the mother is going the opposite way.  Each is acting, according to Mr B, in good faith on their interpretation of the best interests of the boys but the result may be creating a contrast that exacerbates their conflict of loyalty.  I read that to mean that Mr B is concerned that the different paths that the parents are following creates a conflict of loyalty for the children.  But for my purposes today what it seems to suggest again, and I appreciate this is the third time I have said this, the relationship between the parties is becoming much worse than it ever was.

34. What was not drawn to my attention but which I found in the report was a statement by Mr B I found a little disturbing.  This is at paragraph 5.2 on page 9 of his report and I quote:

    I believe the father is rather obsessionally meticulous about controlling the boys' lives in their best interests.

    That certainly comes through from reading the affidavit of the husband.

35. What I propose to do is to look at the legal issues before making a determination.  I do so in this case because of the recent amendments to the Family Law Act 1975 (Cth) (“the Act”). I started the day suggesting that this was not simply a financial issue and I have confirmed my views that that is right. Orders concerning parental responsibility are all parenting orders. Section 64B(2) of the Act includes the provision of the court determining the allocation of parental responsibility for a child, and that includes the allocation of parental responsibility for making decisions about major long-term issues in relation to the child, such as schooling.

36. In this case the issues of where and for what time the children live with their parents will be determined at some stage, hopefully in the foreseeable future. I do not propose to discuss the objects and principles that are set out in Part VII of the Act because they seem to me to mainly apply to cases involving wider issues than the one that I have to deal with. However, s 60CA deals with the best interests of a child and provides that in deciding whether to make a particular order I must regard the best interests of the child as the paramount consideration.

37. In my view, a change of school issue is not just a case of determining capacity of a parent to pay school fees. In determining what is in the best interests of children, I am obliged to consider the specific provisions of s 60CC, and I will return to that in a moment. Before I do so, s 61DA of the Act requires that when making a parenting order in relation to a child, the court must apply the presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for them. That is, in this case the starting point is that each parent should have the responsibility for making the decision about schooling for the future.

38. The presumption may be rebutted if there is family violence.  In this case I am told that there has been a family violence order but it expired in 2004 and there is currently pending a prosecution against the husband arising out of an apparent disciplinary act with him on one of the children.  I do not know and do not think that it matters much in this case what the exact details of that are.

39. Neither of the two events I have just referred to needs any elaboration because I propose to determine the departure from the presumption on the basis of s 61DA(3). That provision says that I do not have to apply the presumption if I am making an interim order and it would not be appropriate to apply the presumption. It is important to recognise that s 65DAC set out the effect of a parenting order but provides for shared parental responsibility. It requires decisions about major long-term issues about children to be made jointly and that the parents are required to consult each other and make a genuine effort to come to a joint decision about an issue. It is quite clear in this case that is not happening.

1. All of this applies in cases even where there is no application in relation to the sharing of time with children.  It also does not matter whether the issue of equal shared parental responsibility was put in issue by the parents.  In this case I am only dealing with the responsibility for making decisions about which school the children attend. 

2. In this case for the purposes of s 61DA(3), there are three reasons why it is not appropriate on an interim basis to have the parents equally responsible. Firstly, the parents cannot communicate with one another and it seems clear that their relationship is deteriorating. Secondly, there are unresolved issues about family violence which make it inappropriate for them to be deciding issues such as schooling. The third is the issue of the resumption of school which is urgent.

3. I turn then to the s 60CC provisions.  I have considered all of the factors in this case but in reality very few of them apply to a decision about whether I should make one parent responsible for a particular parenting responsibility.  I have chosen to mention three.  The first is the willingness of the parents to effectively consult one another and deal with the issues associated with parenting.  For reasons I have already outlined I think that there is little prospect of the relationship improving to the extent that the husband and wife could consult with one another about important issues such as schooling. 

4. Second is subparagraph (f), the capacity of the parents to provide for the children's needs.  Like Mr Hale, I make no criticism of the husband for his reduced time and responsibility for the children.  It seems quite clear on the evidence that the wife has been bearing the greater burden of that.  Evidence of that is clear in relation to the fact that she has been attending the school and driving the children.

5. The third matter that is of relevance in s 60CC is subparagraph (m) which allows the court to take into account any other matters that it considers appropriate.  In my view it is vital in this case that these children know quickly which school they are going to go to and this is a case where the wife should have the responsibility for making that particular decision.

6. I want to make it clear that I am not taking away the responsibility of the parents to make joint decisions in respect of other matters.  I am simply limiting the parental responsibility issue in relation to schooling for the interim only.  I do not propose to make final orders to give the wife carte blanche to make decisions in relation to school for the future.  It may very well be that my order has that effect.  I do not intend that it be seen to apply to any other issues in relation to the long-term major decisions for the children other than for schooling.

7. Accordingly, I propose to make this order:  that until further order the wife be permitted to change the schools of the children J born in February 1998 and D born in June 1991 from B College to M School for D; and S School, for J commencing with term one of the year 2007.

8. I otherwise dismiss the application of the parties, and that includes the response documents and those applications that form the basis of the review process.

I certify that the preceding forty seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  7 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as REYNOLDS & REYNOLDS