Richmond & Tirado
[2020] FamCA 1044
•8 December 2020
FAMILY COURT OF AUSTRALIA
Richmond & Tirado [2020] FamCA 1044
File number(s): CAC 695 of 2018 Judgment of: GILL J Date of judgment: 8 December 2020 Catchwords: FAMILY LAW – CHILDREN – choice of schooling for the child pending final hearing – where there is a high degree of conflict between the parties – where the child has participated in transition sessions connected to a particular school – where the child has formed an expectation that he will be attending that school – where the child has formed friendships with children who will be attending the school – where additional changes to the child’s schooling arrangements are to be avoided in the context where the mother proposes to relocate interstate on a final basis – costs Legislation: Family Law Act 1975 (Cth) ss 60CC, 117 and 117(2A) Cases cited: Bilz & Breugelman [2013] FamCA 578 Number of paragraphs: 21 Date of hearing: 8 December 2020 Place: Canberra Counsel for the Applicant: Mr Haddock Solicitor for the Applicant: KJB Law Solicitor for the Respondent: Evans Family Lawyers Solicitor for the Independent Children's Lawyer: Legal Aid, ACT ORDERS
CAC 695 of 2018 BETWEEN: MS TIRADO
Applicant
AND: MR RICHMOND
Respondent
AND: LEGAL AID
Independent Children’s Lawyer
ORDER MADE BY:
GILL J
DATE OF ORDER:
8 DECEMBER 2020
THE COURT ORDERS THAT:
1.I dismiss the mother's Application in a Case in so far as it relates to X’s schooling arrangements for 2021 as filed on 16 November 2020.
2.The father is entitled to enrol X at the C School and to maintain his enrolment there.
IT IS NOTED THAT
3.The father asserts that he will meet all the school expenses for X in X’s attendance at the C School.
IT IS FURTHER ORDERED THAT
4.The parties are directed to do all things necessary to ensure that the mother has full authority to contact the school in relation to X and arrangements for X and has any authority usually given to parents to enable the inspection of any records pertaining to X, including but not limited to enrolment records, educational records and records as they pertain to the payment of fees in respect of X.
5.The father’s Application for Costs is dismissed.
6.Each party will bear his or her own costs.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Richmond & Tirado has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
GILL J:
These proceedings take place in the context of a highly conflictual relationship between the mother and the father, being a relationship in which there are outstanding allegations of family violence that may fall to be determined at the ultimate final hearing of the matter.
There are issues that fall to be determined in relation to the schooling of the child of the relationship, X. They are issues that fall to be determined in the context that it is anticipated that this matter will come on for final hearing some time during 2021, on the basis that the proceedings were instituted in 2018 and the mother seeks to relocate to Queensland with X as part of any final orders that are to be obtained. Accordingly, the schooling issues for X as X enters kindergarten are for the resolution of X’s circumstances for a short period of time.
Pursuant to orders made by Judge Tonkin in 2018 X was enrolled in the preschool facility that forms part of the C School. He has attended there from at least late 2019.
The issue now to be determined is as to whether or not he will be enrolled in and participate at kindergarten and any following years as might be necessary pending the final hearing of the matter at the C School or whether he should be enrolled at B School, as is sought by the mother. The father seeks the C School, while the mother seeks the B School.
These are interim proceedings and the Full Court cautions that in interim proceedings a Court is to be cautious about engaging in the wider dispute to be resolved at a final hearing. The Court is also to bear in mind the less contentious facts where it is able to do so, and the more corroborated facts where it is able to do so, bearing in mind that it may be necessary for the Court to resolve risks even where there is contentious evidence.
Here it is uncontested that X has been attending the school or the preschool facility for a significant period of time. It is also uncontested that he has missed a large number of attendances at the school, which has been a source of conflict between the parties. That is a matter that raises issues concerning the capacity of the mother to cause X to attend schooling as the absences have been mostly attributable to her. This, however, is a matter which attracts low weight in these interim proceedings because of uncertainty as to the mother’s circumstances and how that came about.
She points in particular to the fact that this is a dispute at least retrospectively about X’s attendances at a preschool facility, rather than at school improper. She also points to her inability to facilitate X attending school because of financial pressure upon her, which meant that she was unable to secure transportation because her car was broken. What seems uncontroversial is that at a corresponding time the father was in arrears on his child support payments, such being evidence of his failure to make his child support payments in a timely fashion.
Under those circumstances, and conscious that the mother's incapacity to cause, or lack of causing, X to attend school may be derived from an incapacity in part caused by a failure of the father to pay his child support but being unable to resolve that, that fact at present is a matter to which I will attach low weight.
The matter which attracts greater weight is the litigation context within which the application occurs. The Independent Children's Lawyer (‘the ICL’) helpfully identified the major s 60 CC considerations that govern my decision in this matter, being firstly the one previously addressed as to capacity on the part of the mother, but secondly, the effect of a change in circumstances upon X. I was helpfully referred to Bilz & Breugelman [2013] FamCA 578 which, at the relevant paragraphs 81 to 83 that I was referred to, points to the need of a Court to consider the s 60CC considerations as they arise and bear upon the issue of schooling.
Here the determinative issue is one that relates to change of schooling upon X. As noted, he has attended preschool at the C School. He has attended with a number of other students with whom he has formed friendship. He has formed an expectation, it seems, that he will be attending the C School for kindergarten next year. This is in a context where he has attended some transition events with the permission of the mother on the basis that he would not be told that he would be attending. The mother reports that X has told her that it is his expectation that he will be attending and has done so under circumstances that indicate to the mother that that expectation has been raised by virtue of things said to him by the father. Again, I cannot determine the aetiology of X’s views on that matter, but merely accept that he has formed the view that he is likely to be attending there. Having attended the transition sessions, or some of the transition sessions, being familiar with the campus upon which the facilities are situated and having developed friendships within the group of children, some of whom (eight in number) may be moving on to the school, there is a disruption for X if he is now to attend a totally different school. This would be a matter of little moment if there could be seen to be some permanence in those arrangements. However, the mother's application, as I have already identified, is for relocation to Queensland. Should she be successful in her application there will be multiple changes in X’s schooling arrangements. This is to be avoided under circumstances where X has formed the view that he will be moving to the C School and where he has other students with him that are likely to do so.
On that basis the mother's Application in a Case is refused.
COSTS
An application has been made by the father for costs against the mother. It is understandable that an application might be made in the current circumstances given that the mother was wholly unsuccessful in relation to this aspect of the interlocutory relief that she seeks.
A starting point and the provisions in relation to costs are set out at s 117 of the Family Law Act 1975 (Cth). The starting point is that each party bear his or her own costs unless there are circumstances which bring the Court to the opinion that is justified in departing from that. Those circumstances are considered in light of the matters set out at subsection 2A of s 117 of the Act. They include the financial circumstances of the parties. It may be noted here that the evidence points to the mother being in poor financial circumstances at present.
The second consideration is as to whether any party to the proceedings is in receipt of Legal Aid. Neither of the parties is in receipt of Legal Aid.
The third matter relates to the conduct of the proceedings. Here it is put that the delay in the application has added to the complexity of the proceedings. It may be observed that the proceedings, even on an interlocutory basis, are of a significant complexity which did not render them apt for a single consideration in any event. The matters raised by the mother are such as to require a splitting of the proceedings in any event.
The fourth matter is whether the proceedings were necessitated by the failure of a party to comply with the previous order of the Court. That does not seem to be a consideration which is raised here.
The fifth consideration is whether any party to the proceedings has been wholly unsuccessful, a matter which I will address momentarily.
The sixth consideration is whether a party to proceedings has made an offer in writing to settle. That is not an applicable matter here.
The seventh consideration is any such other matters as the Court considers relevant.
The current proceedings involved schooling for the child of the relationship, X. This is a matter which the parties have been unable to resolve between themselves. It is a matter that the mother has pursued and has been wholly unsuccessful in. However, it was a matter that related to an important parenting issue and despite the description given to it by the lawyer for the father, this is not a matter that could be considered to have been doomed to fail. It has turned on a relatively narrow point in relation to the conduct of the proceedings, but was supported by evidence that relevantly went to the general considerations as to what schooling should be. It cannot be characterised as doomed to fail. It also, despite the imminent nature of a final resolution of the matter, cannot be seen to be an application that ought never to have been brought, given its link to important parenting issues in the case which are connected not only to education but also to the pursuit of religion and to what the appropriate pursuit should be for X.
Considering the various matters set out at subsection 2A, I am not of the view that the circumstances are such to justify departure from the starting point that each party will bear his or her own costs and the Application for Costs is dismissed.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 9 December 2020
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