Self and Bachman

[2013] FCCA 683

FEDERAL CIRCUIT COURT OF AUSTRALIA

SELF & BACHMAN [2013] FCCA 683

Catchwords:
FAMILY LAW – Parenting – parental responsibility – which school child should attend – interim hearing.

Legislation:  

Family Law Act 1975, s.60CC

Goode & Goode [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-286

Applicant: MS SELF

Respondent: MR BACHMAN

File Number: SYC 6480 of 2007

Judgment of: Judge Halligan

Hearing date: 13 June 2013

Date of Last Submission: 13 June 2013

Delivered at: Parramatta

Delivered on: 13 June 2013

REPRESENTATION

Counsel for the Applicant: Mr Nagel

Counsel for the Respondent: Mr Campton

Solicitors for the Respondent: Uther Webster Evans

ORDERS

1. The balance of the father’s amended application in a case filed on

   
   

   30 March 2013 is dismissed other than as to costs.

2. The mother’s oral application in terms of paragraph 1 of exhibit A is dismissed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT PARRAMATTA

SYC 6480 of 2007

MS SELF

Applicant

And

MR BACHMAN

Respondent

REASONS FOR JUDGMENT

1. This is the hearing of competing interim applications by the parents of, X, to whom the parties both refer as X, born on

   
   

   (omitted) 2004.  The parents have two other children, Y and Z.  The present issue relates to the school that X should attend.

2. The order that the father seeks – and it is expressed to be by way of enforcement of orders made on 16 February 2009 – is that the mother be ordered to do all that is necessary to ensure that X attends (omitted) School as and from tomorrow, Friday.  The mother seeks an order, pending further order, that each of the parents do all things necessary to cause X to continue his primary school education at (omitted) School.

3. X is currently in year 4 at (omitted) School.  He has been at that school since kindergarten.  It was the parties’ joint position, apparently, that that is the school the child should attend, at least initially, for his primary education.

4. There have been final parenting orders made between these parties.  They were made by consent on 13 March 2008 by the Family Court of Australia at its Sydney registry.  Relevantly, those orders include an equal shared parental responsibility order in relation to all three of the parties’ children, including X.  The parties also entered into consent property orders.  They, too, were made in the Family Court of Australia, on 16 February 2009.  Curiously, in one sense, those financial orders include a notation and I will quote it in full:

   Noted that for the purposes of order 27 [sic] above, it is intended that the children, Y and Z…

   I interpose that they are the elder siblings of X –

   will commence at (omitted) School in 2011 and X will commence at (omitted) School for Year 3.  Neither party shall vary the children’s enrolment at (omitted) School without the consent of the other party nor shall they vary the year of enrolment at (omitted) School without the consent of the other party.

5. Despite the provision of that notation, in fact Y continued on at the same school that X has been attending until Year 6 and thereafter, apparently by agreement between the parents, has attended high school commencing this year not at (omitted) School but at a selective high school.  Z has moved to (omitted) School and is still there.

6. Much was attempted to be made as to the meaning or legal effect of paragraph 29 of the property settlement orders.  The father sought to suggest that it is an order.  It is not and that is plain on the face of it.  Although the mother has sought to argue that this paragraph not only is not an order but is otherwise of absolutely no force or effect whatsoever, it is clear that she considered that this in fact imposed some obligation on her, because the application that she filed initiating these proceedings on 18 October 2012 has as the first order sought, and I quote:

   That order 29 of the orders dated 16 February 2009 be discharged.

7. If the mother did not consider that this particular paragraph had any effect, there would hardly be any need to seek a formal order discharging it.

8. I am satisfied at this stage that it is more likely than not that both these parties misunderstood the force or effect of paragraph 29.  It is not an order.  Nor am I satisfied that the second sentence of paragraph 29 is an order.  The paragraph needs to be read as a whole.

9. The reference in paragraph 29 to another paragraph of the orders, order 27, appears to be a typographical error.  It seems more likely than not that this relates back to, in fact, paragraph 27, which is expressed to be a departure from an administrative assessment of child support but then goes on to make provision that the father will pay both child support as assessed by the Child Support Agency together with the payment of additional amounts, including, in respect of the children’s attendance at (omitted) School, all expenses including tuition and building levies, school uniforms, text books, sports uniforms and shoes, excursions and camps.  It also provides that one half of the children’s dental and orthopaedic expenses not covered by private health insurance to be met equally by the parents.  The costs of the extracurricular activities was to be similarly met.

10. I am satisfied that paragraph 29, being an explicit written agreement of the parties, signed by them with legal representation and advice at the time, is a clear manifestation of what the parties had decided at that point in relation to the exercise of the equal shared parental responsibility that they had under the parenting orders of 2008.  That being so, I am satisfied that it was not open to either party to unilaterally change that arrangement under the equal shared parental responsibility order.

11. The mother has wished that X continue at his current primary school rather than transfer to (omitted). School  That was the purpose of the application she filed in October last year.  Bearing in mind that her evidence is that X first, according to her, articulated opposition to transferring to (omitted) School and a wish to remain at (omitted) School in July 2012, it is unfortunate that the mother waited until 18 October 2012 to bring an application.

12. As it transpired, there was simply no opportunity for the court to hear the matter before the commencement of the current school year.  The child continued to attend (omitted) School.  That is contrary to the decision that the parties made in the exercise of parental responsibility as indicated by paragraph 29 of the 2009 orders.

13. To the extent to which it was sought to be put on behalf of the mother that there was a problem in the way in which the orders sought by the father were framed, I am satisfied that there is no actual practical problem or difficulty.  The controversy between these parties has been clearly understood and the battle lines have been long since drawn.  It cannot be in any doubt at all that the mother wants the child to stay at (omitted) School and that the father wants the original agreement for the child to transfer to (omitted) School to go ahead.  Whether that be to use the words in the order as currently literally pressed and I quote-

    That by way of enforcement of orders made 16 February 2009…

    or otherwise, in my view, is immaterial.  The substance of the order that the father seeks is clear and the circumstances of it are clear.

14. I am asked to make an order that the parties do all things, so far as the father is concerned, to have the child attend (omitted) School and by the mother, that the parties do all things to retain the child’s attendance at (omitted) School.  It has not been suggested other than that these are parenting orders relating to an aspect of parental responsibility.

15. For that reason, it is the child’s best interests that are the paramount consideration and they fall to be determined by reference to section 60CC, the provisions of which have not been touched upon explicitly in any submissions I have heard on behalf of either party today.

16. The other matter that needs to be borne in mind is that this is an interim hearing.  There has been no testing of any of the evidence.  As the Full Court of the Family Court has emphasised repeatedly (see, for example, Goode & Goode, [2006] FamCA 1346 at [68], (2006) 36 Fam LR 422, (2006) FLC 93-286, that limitation must be kept firmly in mind in deciding interim matters. The court must, to the extent that it can, base its decision upon non-controversial facts. The resolution of controversial facts remains for the final hearing when there can be a testing of the evidence. That does not necessarily mean that the court must simply ignore controversy between the parties if, in fact, the court can draw any inferences relevant to its decision-making at this stage from that evidence.

17. The mother says, and I do not understand this to be in dispute, that X is well settled in (omitted) School and is doing well there.  There is nothing to suggest other than, as the mother suggests, the child enjoys it there.  What does seem to be in dispute is whether the child is expressing an unqualified view and a strong one at that, according to the mother, that he wishes to remain at (omitted) School or whether he on occasion says that and on other occasions says he is content to go to (omitted) School, as the father asserts.  The father says that the boy has made both assertions to him but the mother’s evidence is that the boy has only ever expressed to her a wish to remain at (omitted) School and that certainly since July last year, the boy has not made any comment to her indicating a wish to go to (omitted) School.

18. The difficulty that I have in this particular case is that clearly the agreement the parties reached in 2009 entailed the boy going to (omitted) School and I am satisfied that the mother has failed to cooperate in implementing that decision when the time came to implement it.  She cooperated up to a point, but then took steps to thwart the child’s attendance at (omitted) School this year.  That is a matter that I cannot ignore because it goes to, amongst other things, the attitude to the child, the responsibilities of parenthood and the way in which the mother has facilitated or failed to facilitate the father’s participation in decision-making concerning the child.

19. I am not satisfied that the matter that I am called upon to determine today will ultimately have any significant bearing upon the benefit to the child of a meaningful relationship with both parents and there are no protective concerns raised on the evidence.  I have already alluded to the evidence concerning the wishes of the child, and that there is controversy about them.  But, as I say, that controversy only relates to the father suggesting the boy has, on occasions, prevaricated with him.  The evidence of a psychologist that the mother unilaterally took the child to see is that the boy made a statement to her consistent with what the mother said the boy told her. 

20. The father puts that the child’s views expressed to the psychologist were in the context of an arrangement that the mother made.  The boy was taken by the mother to see the psychologist, and he suggests that the boy is making comments at different times to please each parent.  That is certainly not what the mother asserts the boy is reporting.  The boy is allegedly reporting to her that he has expressed to the father, a number of times, his wish not to go to (omitted) School and his desire to remain at (omitted) School and that when he does, the father simply tells him that it is not up to him, that he will effectively go where his parents send him.

21. It is unclear on the evidence before me whether the father admits such conversations or conversations to that general effect with the boy or not.  He certainly does admit that the boy has told him, on occasions, that he does not wish to go to (omitted) School.

22. Otherwise, the matter that would seem to be raised as being of most significance is the likely effect of change on this child.  The child is clearly, as I have said, well settled.  There appears to be no issue about that.

23. The decision that the parents made about (omitted) School was made in 2009, as I understand it before the boy had even commenced school at all.  The boy has now commenced school and has attended the school originally intended that he would attend for Kindergarten and Years 1 and 2 and now, simply by the mother not facilitating the agreement originally reached, he has entered Year 3 at the same school.

24. As I understand it, the father suggests that the parties discussed the issue of what school the child should attend at different stages.  There appears to be no issue that the parties agreed that ultimately the boy should attend (omitted) School for high school and the father suggests that the parties agreed, he says on certain advice that he obtained, that it would be best for the child to transition from the local primary school to the private school at the beginning of year 3.  But that discussion and agreement was in 2009 and this is 2013.

25. My real concern is the effect upon this child if I make the order that the father seeks.  Bearing in mind that it is an interim order only, it will not pre-empt or preclude the decision to be taken at the final hearing.  And if in fact the Court on a final hearing decides that the child should be at (omitted) School, then it will necessitate two changes of school for this child.

26. The other problem, however, is that not acceding to the father’s request would seem likely to render nugatory the relief that he seeks.  And that is, as I understand it, that the child attend at (omitted) School from year 3 or as much of it as might remain, and for the remainder of his primary schooling.  The reason for that is that it seems to be common ground that there are two points of entry into (omitted) School relevant for this child, Year 3 or Year 7.  As I understand it, it is common ground that if the child does not transfer now or in the very near future - and the evidence is that the school has kept a place open for him pending the outcome of this hearing – then it is more likely than not that an opportunity to transfer the child to (omitted) School would be lost until Year 7.

27. But as I say the decision I must make is by reference to the child’s best interests, not the interests of either of the parents.  And the problem here, of course, is that this is an interim hearing, there is controversial evidence on various matters, and the Court is unable at this preliminary stage to make any clear finding that one school rather than the other would, for example, provide a better education or educational foundation for the child, or otherwise to compare between these two schools the environment, educational and otherwise, and the sorts of support that each of them might respectively provide to children.

28. I draw an inference from the paragraph 29 of the 2009 orders that certainly at the time those orders were made, the parents were satisfied that at Year 3 it would be appropriate for the child to transition to (omitted) School.  The difference of course is that now the child has been at (omitted) School for over 3 years, and this is the point that the mother raises.  She suggests that in light of actual experience and in light of how the boy is going, that it would not be in his best interests for him to move to (omitted) School.  The father says it is.  And the problem is that at this stage I am not satisfied that the evidence is such that I can make a decision one way or the other.

29. I need to be positively satisfied that one or other of these options would be better for this child.  There are arguments, as I say, in support of each position.  The mother has obtained – and I do not use the term pejoratively – adversarial expert evidence going to the child’s views, and also purporting to express an opinion about the relative benefits to the child of staying where he is or moving to (omitted) School in circumstances where I cannot see on the face of the expert evidence that there is any factual basis upon which the opinion is expressed.  Nor can I see how the opinion was formed, and to be clear I am referring to the opinion expressed at the end of the psychologist’s report where she says:

    So in summary it is my opinion that X should remain at (omitted) School with the friends he knows and follow the same path as his brother Y finishing his schooling there a happy, well-adjusted, non-conflicted young boy.  Only time will tell how X will proceed with his further schooling at (omitted) School where he is currently very happy and settled and feels that he fits into his school very well.

30. It is unclear why, in expressing that opinion, the psychologist referred to the path Y followed but not the path Z followed, namely the path that the father would seek X follow.  It is also unclear why the psychologist expressed the opinion quoted despite recording that X reported that Z was enjoying his time at (omitted) School.  These are matters upon which one might expect the psychologist would be subject to cross-examination in a final hearing if the report remained admitted in evidence.

31. But the problem at the moment is she is not able to be cross-examined.  I have a fairly firm expression of an opinion, “finishing his schooling there a happy, well-adjusted, non-conflicted young boy” followed immediately by the next sentence, “only time will tell how he will proceed at that school”.  Why she formed such a firm view I cannot tell having read her report very carefully.  There appear to be matters relevant to coming to that view that she does not appear to acknowledge or refer to.

32. The only matter that I can see that she has adverted to is the fact that the boy is happy where he is and he has friends where he is.  It would be hardly surprising if it were otherwise when he has been at the school for three years.

33. There is also some controversy I think on the evidence as to whether any of X’s peers from Year 2 transferred to (omitted) School at the end of last year, or the beginning of this year more correctly.  The mother certainly asserts no.  The father seems to suggest that there are certain children that X would be familiar with who are at that school, but I cannot tell from his evidence that he is asserting that they in fact were in the same class or even the same year as X last year.

34. There is no suggestion in the mother’s case that X does not know any of the children at (omitted) School – apart from his own brother, of course – but it is unclear whether there is a dispute about whether any, and if so how many, of his peers from Year 2 last year transferred to (omitted) School at the beginning of this year.

35. The difficulty I have, as I say, is that the evidence is entirely equivocal at this stage and I cannot be satisfied that either of the options presented by the parents is preferable to the other.  Each has advantages and disadvantages.  The principal advantage of the mother’s proposal is that it would, in effect, not rock the boat.  It will leave the child where he is in an arrangement where there seems to be no issue at all, he is well settled.  The father’s proposal would put X into a new situation halfway through a school year where peer groups would have already begun to form and it may be more difficult for the boy to, as it were, break into friendship circles - not impossible, but more difficult.

36. In favour of the father’s proposition there is the clear agreement by the parties in 2009 that this is precisely what X should have done at the beginning of this year, that he has a brother at (omitted) School, and that the parties then certainly saw this as being an appropriate educational course for the child.  The further consideration of course is that if I do not make the order the father seeks then all opportunity may be lost for this child to attend any of his primary schooling at (omitted) School.

1. As I say, those matters are too finely balanced for me to make a choice between them.  In those circumstances I propose to dismiss both the parties’ interim applications.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Halligan

Date:  28 June 2013