Rogers and Newham

[2009] FamCA 1330

FAMILY COURT OF AUSTRALIA

ROGERS & NEWHAM [2009] FamCA 1330

FAMILY LAW – CHILDREN – Where children attend school

APPLICANT: Ms Rogers

RESPONDENT: Mr Newham

FILE NUMBER: MLC 9288 of 2007

DATE DELIVERED: 18 December 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 18 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Middlemis

SOLICITOR FOR THE APPLICANT: JA Middlemis

COUNSEL FOR THE RESPONDENT: Mr Nicholson

SOLICITOR FOR THE RESPONDENT: Morrison Sawers

Orders

1. That from the commencement of the 2010 school year, the children H born … February 1995, J born … June 1997, and E born … October 1999 shall attend O Grammar School, all school fees to be met by the mother.

2. That any other existing applications shall be dismissed and the case removed from the list of cases awaiting finalisation.

IT IS NOTED that publication of this judgment under the pseudonym Rogers & Newham is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9288 of 2007

MS ROGERS

Applicant

And

MR NEWHAM

Respondent

REASONS FOR JUDGMENT

1. The parties have four children, A 16, H nearly 15, J 12, and E 10, who by all accounts are charming children, developing well, except for the terrible conflict between their parents. 

2. The case started before me in April this year.  The issues were primarily the configuration of the children’s time between households and where the children would go to school.  The parties then started to see Mr P.  I made consent orders on 18 December 2009 for a week-about shared care arrangement whereby the children were to spend one week with their father in R and one week with their mother in C, about 20 minutes’ drive from each other.

3. The parents still did not agree about schooling, and at paragraph 10 of my orders on that day, I made an order as follows:

   That the parties shall, as soon as practicable, meet with Mr [P] and make the children available to meet with Mr [P] in a reportable conference in which each party shall make all reasonable efforts to resolve the issue of the children’s schooling, and ascertaining the children’s view shall be a part of that process.

4. Sadly for the children, the mediation, with the assistance of Mr P’s skill and expertise, ultimately has not resolved the schooling issue. 

5. It has, however, changed in its complexion.  Initially, it largely revolved around whether or not H would board at his father’s old school, in Melbourne.  The father keenly pursued that.  He did so, despite H’s clearly expressed view that he did not want to go.  Mr P noted that in his letter of 28 October 2009 when he said:

   The boys in particular have told me very directly that they do not want to go to boarding school, and I think it would be a mistake at this stage for them to go.

6. The father is not pursuing the boarding school option for now, but his evidence today made it clear it is still his hope, perhaps in 2011. 

7. The parents’ dispute about schooling today is between R High, where the father wants H to continue and the younger boys to attend after primary school (in J’s case, next year), or O Grammar, where the mother wants the three boys to go. 

8. The logistics between the parents have been working well and the children have not had to endure long travel, the mother either driving them from her place to R for commitments, or the parents driving 10 minutes or so to meet halfway. 

9. Unfortunately this case is not simple.  H, who it appears has borne much of the brunt of his parents’ conflict, perhaps as a sensitively-natured child, or because of the focus on whether he will or will not be sent to board at his father’s old school, is clear in his wish to go to O Grammar.  The father does not concede that, but I note the only objective material, that of Mr O, refers to a move to O Grammar being something in which H is “so invested” that it would “obviously be a mistake” not to send him. 

10. It is common ground that H was bullied last year at R High.  He is a bright boy, and even his sister A has observed that it’s tough for a bright boy in that environment.  There is conjecture as to whether the bullying has continued into this year.  The father says it has not.  He called Mr N, the principal, who said he has not been aware of bullying this year, although he agreed that H was punched in the face earlier in 2009 following an exchange of words with a boy who has now left the school.  The mother says there have been other instances this year, of H having food thrown at him, or his pants pulled down.  The principal was aware of H’s pants being pulled down by a bully last year. 

11. I cannot reach a definitive conclusion as to whether or not the bullying continues, save that H evidently savours the strong desire to leave that school.  The principal said that last week H was given a “good citizen” award, voted by students and staff.  That’s good news and optimistic news, but not a deciding factor as such. 

12. Mr P has made it clear that this is not really a choice between schools.  For that reason it’s hard for me to be anxious as to whether one offers Indonesian or not, whether a course is by correspondence or not, or whether there is a timetable clash or not.  These are bright children from two parents who clearly value and promote the need for a good education.  It is clear they both support their children’s educational pursuits.  From that perspective, the children can flourish in either setting. 

13. The father emphasises the need for H, in particular, to be on hand in R for his sporting pursuits.  Again, I observe that both parents value the children’s participation and opportunity to excel.  The mother made it perfectly clear that she will mainly be available to drive them to training, that some is local to C in any event, and that H is more than willing to use public transport, which on the husband’s account may take an hour, for the sake of his sport, if need be.  That is, in his desire to change to O Grammar he is clearly cognisant of the logistical issues for sport. 

14. In the course of the argument I observed that many city children travel an hour by public transport for school and for sport.  The more so, one would expect, in rural areas.  These children are fortunate however, that their parents, although in different towns, are not far from each other.  Their mother is able to work convenient sessions in her profession, their father has a degree of flexibility in his family company, and both are highly motivated to ensure the children do not miss out on their chosen activities. 

15. Most important for me in this case is the compelling material from Mr P, an experienced expert, who has been integrally involved in this issue.  His reports deal in detail with the boarding school option.  I reject however, the husband’s submission that Mr P considered only the father’s old boarding college versus O Grammar and not R High versus O Grammar.  Knowing how strongly polarised the parties have been on both counts, it is simply not probable that the various options were not discussed, and that much is clear from Mr P’s account where he said on page 2 of his report of 28 October 2009:

    As we discussed at length [H’s] need to not be at [R] High School is the one issue that should guide your subsequent decisions.

16. Otherwise, in what struck me as a sophisticated and sensitive report, Mr P expressed the very strong view on 28 October 2009 as follows, first he said:

    The common denominator that has linked the children has been their adamant wish to spend time with you both, and to have you actively involved in their lives and to maintain this connection.

    Mr P then went on to deal with the boys’ wishes and said:

    The boys, in particular, have told me very directly that they do not want to go to boarding school and I think it would be a mistake at this stage for them to go.  I think the strong indications are that they should attend [O Grammar], not because this is the best school or provides the best opportunity, but rather because it is the best fit at the moment.

17. He went on to give what he said was his “very strong recommendation” as follows:

    That the three boys should attend [O Grammar] with the expectation that they will make a good transition, that they will settle, that they will be happy, and that they will maximise their opportunities.

    He emphasised that, in his view, it was “extremely difficult” to impose upon children of these children’s ages decisions to which they are “so vehemently opposed”.  He continued with the advice to the parents of how important it was to end their conflict and their litigation.  He referred, as I’ve already noted, to H’s need not to be at R High School as one that should guide the subsequent decision, and on 10 December 2009 he reiterated that he had told the parents “clearly and categorically” that in his view the three boys should attend the grammar school at O.

18. I propose adopting Mr P’s recommendation.  It seems practical to me that if that’s where H’s going and where J is starting next year, then young E should also go there, as the mother has sought.  In fact, it’s quite clear that Mr P had reached the view that the three boys should be kept together. 

19. I want to make one other observation.  Mr P spoke in one report of the “pyrrhic victory” in family courts.  I hope both parents heed that.  I fear they may not.  This far they have seemed inured to what Mr P has observed about their delightful, articulate children who have so forthrightly stated their loyalty to both parents and their strong wish for the conflict to stop, but it has not.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  18 December 2009