SAVARD & SAVARD

[2020] FamCA 960

FAMILY COURT OF AUSTRALIA

SAVARD & SAVARD [2020] FamCA 960

FAMILY LAW – CHILDREN – Best interests – schooling – where the parties cannot agree on what secondary school the child will attend – where the Independent Children’s Lawyer supported the mother’s proposal –where the court makes orders in accordance with the father’s minute.

Family Law Act 1975 (Cth) s 60CC

Bilz & Breugelman [2013] FamCA 578
Banks & Banks (2015) FLC 93-637
Canvil & Merle and Ors [2019] FamCA 684
Eden & Eden-Proust [2011] FamCAFC 138
Re G (Children’s Schooling) (2000) FLC 93-025
Rice v Asplund (1979) FLC 90-725

APPLICANT: Mr Savard

RESPONDENT: Ms Savard

INDEPENDENT CHILDREN’S LAWYER: Ms Agresta

FILE NUMBER: MLC 13808 of 2018

DATE DELIVERED: 18 November 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 26 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Vohra SC

SOLICITOR FOR THE APPLICANT: Starkie Law Group

THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Agresta

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. That until further order, the child Y born … 2008 attend Suburb B High School starting in 2021, and that the parents forthwith sign all documents and do all things necessary for the child to be enrolled at Suburb B High School.

2. The Application in a Case file by the father on 15 October 2020 be otherwise dismissed and removed the list of cases awaiting hearing.

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

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

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13808 of 2018

Mr Savard

Applicant

And

Ms Savard

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This matter has had a lengthy history and in circumstances where the matter cannot be determined on a final basis prior to the commencement of the 2021 school year, the Court is now required to determine which schools the children should attend and in particular where the eldest child should commence his secondary education. The matter has been otherwise listed for final hearing on 15 March 2021 when the Court will be required to determine whether the children should live primarily with the father or the mother. 

Background

1. The father is 48 years of age and lives with his new partner in Suburb A. The mother is 47 years of age and lives in Suburb D. She does not have a new partner.

2. The parties were married in 2003 and separated in October 2013. The parties were divorced in 2015.

3. There are two children of their marriage Y born in 2008 and X born in 2010.

4. Following separation the parties were involved in proceedings in the Federal Circuit Court of Australia (“the Federal Circuit Court”) and on 21 August 2014 Judge Riethmuller made orders by consent (“2014 orders”) providing inter alia as follows:

   a)That the parties have equal shared parental responsibility;

   b)That the children to live with the mother;

   c)For the children to spend time with the father on a fortnightly cycle which became by the commencement of Term 1 2016 from Thursday to Monday in week one and Wednesday to Friday in week two;

   d)For half of all school term and Christmas holidays the parties spend time with the children on an equal basis; and

   e)On special occasions.

5. Significantly for the purposes of the matters I must determine Order 18 (a) of these consent orders provided for the children to attend “a Church Secondary School proximate to the home of the Wife or as agreed between the parties and failing agreement the parties shall attend mediation with respect to this issue.” Order 19 of those orders provided for the children to attend C Primary School in Suburb B.

6. In September 2015 the wife purchased a home for herself in Suburb D and unilaterally changed X from his kindergarten in Suburb E to a kindergarten in Suburb D. The father filed a Contravention Application and on 21 December 2015 Judge Harland having heard that application found that the mother had contravened the 2014 Orders and made the following orders:

   1.        All extant applications are dismissed.

   2.The parties to the extent that it is necessary do all acts and things to re-enrol the child X born on … 2010 at Suburb E Pre-School.

   3.The mother is restrained from sending X to Suburb D Pre-School and from further changing either X’s preschool or primary school.

   4.        The orders made on 21 August 2014 will remain in place.

   5.The mother pay the father’s costs fixed in the amount of $5,000 and this is to be paid within 6 months.

7. Thereafter X returned to kindergarten in Suburb E and commenced his primary education at C Primary School in Suburb B.

8. In May 2018 the mother obtained a Mental Health Plan for the children and they commenced seeing Ms F in June.

9. On 29 November 2018 the father commenced proceedings in the Federal Circuit Court seeking inter alia that the children spend eight nights in his care and six nights in the mother’s care, that he and the mother share the school holidays, that the children attend secondary school at G School, Suburb H and that the children be permitted to obtain passports and travel overseas.

10. On 21 February 2019 the mother filed a Response seeking that all previous orders for the father’s time with the children and with respect to their education be discharged, that she have sole parental responsibility with respect to the children’s schooling and that the children be enrolled at J Primary School Suburb K and L School Suburb D for their secondary education. The wife sought orders for the preparation of a family report and a psycho sexual assessment of the father, at his expense. The mother also filed a Notice of Risk in which she described the children as being fearful of the father and the father as being physically violent to them and that his violence was escalating.  

11. On 19 March 2019 Judge Hartnett (as she then was) made orders for a s 69ZW Report to be prepared by the Department of Health & Human Services (“DHHS”), that the parties attend upon a Family Consultant for an s 11F report and that an Independent Children’s Lawyer (“ICL”) be appointed in the matter.

12. On 4 July 2019, after the release of the reports, the s 69ZW not substantiating the mother’s allegations of the father’s physical abuse and the s 11F report recommending that there be no change in the parenting arrangements and the children not continue to attend upon Ms F unless it occur on a regularly scheduled basis as opposed to in reaction to alleged disclosures Judge O’Sullivan  made interim orders by consent providing in summary as follows:

    a)The parenting orders of 21 August 2015 and 21 December 2015 remain in force;

    b)The parties attend upon Dr M for the preparation of a Family Report;

    c)That the parents be restrained by way of injunction from taking the children to any mental health practitioner without the written consent of the mother, father and ICL and such practitioner is to consult with both parents and provided with the current s11F memorandum and the previously completed Family Report of Dr N in 2014; and

    d)The parents attend upon Ms O or such other counsellor she nominates for family counselling.

13. On 9 February 2020 the father filed an Amended Initiating Application seeking inter alia equal shared parental responsibility, that the children live with him and spend alternate weekends and half the school holidays with the mother and that the children attend C Primary School and Suburb B High School for their secondary education.

14. On 17 February 2020 the mother filed an Affidavit in which she sets out her proposal that the children should live with her and spend alternate weekends with the father and that they should attend school proximate to her home specifying that they attend either L School Suburb D or R School Suburb T for their secondary education. 

15. On 22 April 2020 Judge O’Sullivan transferred the matter to this Court noting inter alia that the report prepared by Mr M had been released on 8 March 2020.

16. On 14 July 2020 the father filed a Further Amended Initiating Application seeking inter alia equal shared parental responsibility, that the children spend 8 nights per fortnight with the wife and 6 nights per fortnight with him and attend C Primary School Primary School and Suburb B High School for their secondary education.

17. Although it was hoped that the matter could be listed for final hearing as that did not occur on 15 October 2020 the father filed the Application in a Case (“Application in a Case”). The father seeks the following orders:

    a)That an urgent interim hearing be held before the end of 2020 on the discrete issue of which High School Y will attend in 2021; and

    b)That until further order the child Y attend Suburb B High School starting in 2021 and the parents sign all documents and do such things to facilitate the enrolment.

18. The mother did not file a Response to the Application in a Case however on 21 October 2020 she filed an Affidavit in which she outlined her case that Y should attend R School and X attend J Primary School both schools being close to her home.

19. The father has now indicated that he proposes to file a further Amended Initiating Application and that he will be seeking orders that the children live primarily with him.

The Evidence

1. The father relied upon the following material:

   a)Application in a Case filed 6 July 2020;

   b)Affidavit of Mr Savard filed 15 October 2020;

   c)Affidavit of Mr Savard filed 6 July 2020;

   d)Affidavit of Ms P Savard filed 13 October 2020;

   e)Affidavit of Ms Q filed 10 March 2019;

   f)Affidavit of Dr M filed 20 July 2020; and

   g)s 69ZW Response of DHHS dated 2 July 2019,

2. The mother relied upon the following material:

   a)Affidavit of Ms Savard filed 21 October 2020.

3. The matter proceeded on the papers both the father and the mother and the ICL making submissions.

4. Although the evidence has not been tested what is not in dispute is that the mother has made 14 notifications to DHHS and three to Victoria Police all in relation to her allegations with respect to the risk to the children of physical abuse in the father’s care and the children’s fear of the father. As submitted by the father Mr M commented adversely (at [2]) on the “gratuitous use of protective services and police in matters that are an appalling and unnecessary drain on these services.”  None of the mother’s concerns have been substantiated. This will no doubt be a significant issue when the matter is dealt with in March 2021 and highlights the need for the matter to be heard and determined on a final basis. It also highlights the fact that it is not clear until the matter is heard and determined which parent the children will be living with.

Legal Principles

1. Although final orders were made by consent in 2014 and based upon those orders the mother says that the children should attend schools proximate to her home, she is also seeking orders in substantially different terms to the 2014 orders as is the father. Neither party submitted that the rule in Rice v Asplund (1979) FLC 90-725 should apply in this case.

2. Although the issue the Court is required to determine is limited the orders sought by the parties are parenting orders. In those circumstances the paramount consideration is the best interests of the children. In determining what orders will be in the children’s best interest the court must consider the matters in s 60CC(2) and (3) of the Family Law Act 1975 (“the Act”). However as the Full Court of the Family Court of Australia said (at [50]) of Banks & Banks (2015) FLC 93-637:

   …When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors.  Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations.  Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

3. And as Hogan J said in Canvil & Merle and Ors [2019] FamCA 684 (at [28]) the “requirement to consider” each of these matters involves taking note of them or giving heed to them or thinking over or reflecting on them; it does not mean that each must by the subject of any particular discussion, particularly where the evidence leads inexorably to a particular conclusion.

4. In the recent decision of Bilz & Breugelman [2013] FamCA 578 (“Bilz”)( at [81] – [83] ) Austin J summarised the principles governing the resolution of schooling disputes as follows:

   [81]Schooling disputes are not resolved by application of a “blanket presumption” or preference for the views held by the residential parent (Re G at [29], [45], [65]). The Court is required to apply the objects and principles of Part VII of the Act and to consider the statutory criteria in forming conclusions about the child’s best interests (Re G at [66]-[68]).

   [82]That is probably self-evident, but other more generalised observations were made by the Full Court. In particular, the process of evaluation should not entail an assessment of the relative merits of the schools preferred by the parties, at least in circumstances where the competing schools are prima facie satisfactory (Re G at [91]-[92]). Ordinarily, it will be in the child’s best interests to attend a school close to his or her residence, and further, it is proper to consider evidence as to any greater effect of the decision upon the resident rather than non-resident parent (Re G at [92]-[93]), but that does not mean the convenience of the non-resident parent is ignored (Eden-Proust at [56]-[63]). While the views of the child are relevant to the inquiry, as s 60CC(3)(a) of the Act now stipulates, those views are usually not determinative. That is because, unless a child is actively unhappy in a particular school environment, it is not at all unusual for the child to express a desire to remain at his or her existing school (see Re G at [96]).

   [83]There is conflict in the authorities about whether any prior agreement between the parties concerning the child’s schooling is influential (see Re G at [92]; Eden-Proust at [48]). There also seems a difference of opinion about the need to refer specifically to each of the factors enumerated in s 60CC or whether it is permissible to simply analyse the evidence discursively with those factors in mind (see Re G at [67]-[90]; Eden-Proust at [69]).

Discussion

1. Although this matter has been listed for final hearing in early March 2021 Y will be attending a new school for the commencement of his secondary education whatever the outcome of that final hearing. On the basis of the wife’s proposal X will also be attending a new school, whereas if the Court accedes to the father’s application he will continue his primary education at his current school.

2. The ICL supported the mother’s proposal highlighting fact that the 2014 orders provided that the children should commence their secondary schooling at a school proximate to the mother’s home. However, as submitted by the father, this ignores what I consider to be the reasonable inference that having consented to an order that the children attend C Primary School for their primary schooling that even if the wife were to move, which was clearly anticipated, her new home would be close to the school.

3. Counsel for the ICL, as did the mother, also referred to the children’s dislike of the travel involved in them attending school in Suburb B where neither of their parents now live and the need for them to attend After School Care. Both the ICL and the mother referred to paragraph 47 of Mr M’s report where he said as follows:

   47.It is against this complex background that a relatively simple decision needs to be made. It is clearly not tenable for the children to continue to attend school in Suburb B if their mother resides in Suburb D, and especially into secondary school years. The decision needs to be made whether the children will live with their mother or their father, and the issues of school then becomes self- executing.

   ..

   52.In one sense the decision is relatively straightforward; the children should go to a school, and especially secondary school, close to the parent with whom they reside for the majority, on condition that that parent is able to advance their welfare.

   53.It is in my view not tenable to continue to impose upon the children the burden of travel because their parents cannot agree. In this regard, neither parent is prepared to elevate the children’s needs ahead of their own, or to make those necessary compromises in order to make their children’s experience less onerous.

   ..

   61.Ms Savard has a good relationship with the children, is committed to supporting their social and community involvement, but has the comparative disadvantage of requiring after school care; this was the one issue that the both boys identified as a source of discontent, but only second to the burden of travel.

4. Although not referred to by the mother Mr M also said at (at 48) as follows:

   …It may be that as suggested by Ms Savard, the simple solution is one that applies the approximation rule, that is, the children spend more time in a 14 night cycle with her, and therefore should go to school close to her. However, her description of the minimal impact that this will have on the boys lives, and the relative importance of their father in their lives, as described in her own affidavit material, conveys a real lack of appreciation and acknowledgement of the extent to which such a decision will impact so profoundly and change the boys relationship with their father significantly to that which would otherwise be the case. I note the description by Dr N that Ms Savard is a person who lacks insight, and this may be an example thereof.

5. In my view whilst the decision may be relatively simple based upon the approximation rule following the final hearing I am not satisfied that it is in the children’s best interests pending that hearing in circumstances where it is not clear whether the children will be living primarily with the father or the mother. There is in this case a question, yet to be determined, as to whether the mother is able to advance the children’s welfare in particular with respect to their relationship with the father. And as Mr M opines at paragraph [59] of his report although the easiest solution is the approximation rule a “much more complex analysis however would require careful consideration of historical factors and which parent is best able to genuinely empathise with their children, promote their welfare, and elevate their needs about and beyond all other considerations.”

6. As submitted by counsel for the father the mother does not complain about the practicability of the present arrangements which have effectively been in place since the mother moved to Suburb D. In my view the father’s proposal whilst not necessarily being optimum in the long term is practical in the short term. Although if I accept the mother’s proposal the children will not have to travel as far as they currently do when they are in the mother’s care the travel arrangements will be even more onerous when they are in the father’s care, albeit they are not in his primary care, and there is some force in the father’s case that it would unsustainable for both he and the children. The concern being in those circumstances that the children may spend less time with the father. In these circumstances it is not just a question of the convenience of the school the children attend.

1. Whilst whatever arrangements are put in place may need to be changed depending on the outcome of the final hearing I am satisfied that the fathers proposal is less disruptive and in particular less likely to impact upon the children’s relationship with each of the parents. Although if the children end up living with the mother and the Court is satisfied that they should attend a school proximate to her home both children will change schools, the father’s proposal would mean no change for X in the short term. Y will be changing schools in any event but if the Court ultimately determines that the children should live primarily with the father based upon his current proposals he may not have to change schools a second time. If Y attends Suburb B High School there is also a very real prospect that there will be children he knows from C Primary School where he has spent all of his primary education, whereas if her were to attend R School as the mother proposes this would be less likely.

2. Mr M says (at [64]) as follows:

   …The practical considerations are important and the pragmatics of the children’s time with their parents cannot be ignored, but at a deeper and more emotional level, it is the ability of the parents to support and encourage relationship with the other parent and extended family that is likely to be protective, and the opposite is true.

3. Which parent is best able to provide for the children’s’ emotional welfare is yet to be determined, however in my view Mr M correctly highlights the importance of the children maintaining a relationship with both parents and in these circumstances I accept as submitted by counsel for the father that the father’s proposal allows the children in the interim to attend schools which, as demonstrated by the history of the matter, can be reached from the home of both their parents and will allow them to continue spending meaningful time with both parents. In all the circumstances I propose to make orders in the terms sought by the father.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 18 November 2020.

Associate: 

Date:  18 November 2020