SCEPETTI & SCEPETTI

[2012] FamCA 372

FAMILY COURT OF AUSTRALIA

SCEPETTI & SCEPETTI [2012] FamCA 372

FAMILY LAW - CHILDREN – Application for injunctive relief to restrain a parent from changing the school one of the parties’ children attends in the interim – Issue of whether an undertaking was or was not in force at the time a parent unilaterally changed the child’s school – Application dismissed in circumstances of the case.

APPLICANT: Ms Scepetti

RESPONDENT: Mr Scepetti

INDEPENDENT CHILDREN’S LAWYER: Paul Walkden

FILE NUMBER: PAC 1979 of 2010

DATE DELIVERED: 27 June 2012

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 22, 25 and 27 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Snelling

SOLICITOR FOR THE APPLICANT:

Ms Mijatovich

Milena Mijatovich Solicitor

SOLICITOR FOR THE RESPONDENT:

Mr Wilson

Wilson Solicitors

SOLICITOR FOR INDEPENDENT CHILDREN’S LAWYER:

Mr Walkden

Legal Aid NSW

Orders

1. That I refuse any injunction preventing L born … September 1995 from attending the B Special School.

2. That the mother’s application in a case filed on 13 June 2012 is hereby dismissed.

3. That the father shall be permitted to have the subject child attend B Special School.

4. That the father is not to present the subject child to B Special School until the first day of face to face teaching in Term 3, 2012.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1979 of 2010

Ms Scepetti

Applicant Wife

And

Mr Scepetti

Respondent Husband

REASONS FOR JUDGMENT

Introduction

1. The application before me today is the Application in a Case filed by the wife on 13 June 2012 in which she seeks three orders: (1) short notice, (2) that the father be restrained from enrolling the child L born in September 1995 in any school other than the C Special School at Suburb 1, or doing anything that may cause the child to be removed from that school, and (3) that the father pay the mother’s costs on an indemnity basis.

The mother’s material

1. The mother relied upon a significant number of documents in this matter:-

   ·Her affidavit sworn 3 May 2012 and filed 4 May 2012, which in turn appears to incorporate an earlier affidavit;

   ·Her affidavit sworn 21 June 2012 and e-filed 22 June 2012; and

   ·An affidavit of her lawyer sworn 8 June 2012 and filed 13 June 2012.

The father’s material

1. The father filed a Response to the Application in a Case on 22 June 2012.

2. The orders that he sought were that he be permitted to allow the child to attend the B Special School, and to my mind, that is the only order that is effectively before me on his part.  He has filed and relied upon:-

   ·His own affidavit sworn 21 June 2012 and filed 22 June 2012; and

   ·An affidavit of his lawyer sworn and filed 25 June 2012, which encloses material concerning the B Special School.

The Hearing Before Me

1. At the commencement of the hearing today the Applicant sought to put before me an affidavit as to the services offered by the C Special School.  I have no difficulty in accepting that the C Special School was a proper and the proper school for the child to attend in the past.  Both parties had no complaint about that school, and I do not need to be assured that it was an entirely appropriate choice.

2. I have before me material that satisfies me that the B Special School is a school that can offer equally appropriate but by no means identical services for this child.  To my mind, therefore, the issue here is not that I must choose one school, or prefer one school, and that which it offers over the other.

3. The situation here is one that the parties have themselves created.  The mother, however it came about, contacted the Department of Health, Disability and Ageing because of difficulties she was experiencing with the child.

4. The child then came, in some fashion which has not been explained to me, to be somehow under the umbrella of the Department of Family and Community Services who in turn placed the child with the father.  I should record here that the mother in no way sought to involve the father in any decisions concerning the child being placed in whatever fashion and however it came about, with any government department/s or agency/agencies.

5. The father has moved from an address at Suburb 2, from which he transported the child to and from the C Special School, to an address on the Central Coast.  He unilaterally decided to change the child’s school.  Instead of doing that which he was in my view required to do as a parent exercising equal shared parental responsibility – to involve and discuss any such changes with the mother - he notified the mother of his intention.

6. The mother’s lawyers then quite appropriately sought undertakings from the father’s lawyer as to what would happen and whether or not the father would refrain from enrolling and thereafter commencing the child at the B Special School.  Somehow the parties understanding as to what the undertaking given meant was quite different, particularly as to when that undertaking would expire.

7. Mr Wilson on behalf of the father says that the undertaking was to expire on a certain day, and it was the Monday after that that the father, without any further notice to the mother, commenced the child at the B Special School.  The enrolment may have occurred before that date, I am not certain of that fact.

8. The mother’s understanding was that the undertaking continued until Friday last when the matter was before me.  No one is able to point me to any document, be it written or email, nor refer specifically even to any telephone conversation between the lawyers that defines the undertaking and the dates particularly upon which it might expire.

9. The fact of this matter is that the child is living with the father.  I have expressed some concern as to the mother’s standing in this matter, but that matter is for another day.

10. On Friday last, it was put to me that a way in which the schooling dilemma could be resolved would be for the child to return to live with the mother from Monday to Friday, and that she would continue to have the child attend the C Special School.

11. However, that was not her application, and to my mind it is not, in any event, a proper way of resolving the present issue.  The father is living on the Central Coast, and the child is with him as a direct result of the mother’s actions.  The father has for the moment the unchallenged care of the child.  The parties cannot work collaboratively.  Therefore, in my mind, it is appropriate that the person with whom the child is living should make this decision, subject always to the educational institution being appropriate.

12. As I have said, I am satisfied that the B Special School is an appropriate school.

13. It was put to me with real force by Ms Snelling that I should make no decision at this time but should allow the present situation of the child not attending school to continue for the rest of this term, being some (counting today) three days, and until Mr P has had the opportunity of seeing the parties and presumably the child in July for the preparation of a Family Report.

14. At face value there is some merit in that submission.  The difficulty, however, I perceive is that the child, because of the very disability that requires the type of schooling that we are speaking of, is not able to assist with any form of communicated desire, wish or indeed complaint concerning that which might happen to him.

15. In the circumstances of this case, I am satisfied that it is appropriate that the child attend the B Special School, and accordingly, I refuse any injunction preventing that occurring.  I propose to dismiss the mother’s Application in a Case filed 13 June 2012.  I will order that the father be permitted to have the child attend the B Special School.  In my view, however, it may be wise that that not occur until the first day of the next term.  Accordingly, the father is not to present the child at that school until the first day of face to face teaching in Term 3.

16. I find it to be of very great regret that the Court is being asked to make this decision.  It is something that the parties ought and should have been able to do for themselves.  However, they wish to continue with the struggle that appears to me to be consuming them to the extent that the children are being ignored.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 27 June 2012.

Legal Associate:       

Date:    18 July 2012