Short and Trevilian

[2009] FamCA 1139

FAMILY COURT OF AUSTRALIA

SHORT & TREVILIAN [2009] FamCA 1139

FAMILY LAW – CHILDREN - Schooling - Mother applied for orders to enable her to change the child’s school - Father resists the mother’s application - Child’s views - Change of school permitted  - Mother to have sole parental responsibility for decisions concerning the child's education

Family Law Act 1975 (Cth) ss 60A, 60B, 60CC(3), 60CC(4), 61B, 61C(1), 64B, 65AA, Pt VII
Family Law Reform Act 1995 (Cth) ss 61C, 61D, 64B(2)(a),

Vlug and Poulos (1997) FLC 92-778
Goode & Goode (2006) FLC 92-286

APPLICANT: Ms Short

RESPONDENT: Mr Trevilian

INDEPENDENT CHILDREN’S LAWYER: Ms J Cocks

FILE NUMBER: (P)ADF 1855 of 2003

DATE DELIVERED: 23 January 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Ryan J

HEARING DATE: 23 January 2009

REPRESENTATION

APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr D Berman

SOLICITOR FOR THE RESPONDENT: Angela Ferdinandy

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr J McGinn

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms J Cocks

Orders

1. That the mother Ms Short has sole parental responsibility for making decisions concerning the child V born … June 1995 (“V”) education.

2. If prior to the end of Term 2 in 2009, V wishes to return to R College, provided the father has paid to R College the necessary holding fee and the place remains available for her, the mother shall reenrol V at R College.

3. The mother shall give the father no less than 14 days notice of any major long term decisions concerning V’s education.

4. The mother shall give written authority to any school V attends that the school may provide to the father, at his request and expense, copies of V’s school reports, school photographs and other information appropriately provided to parents.

5. To the extent there may be an inconsistency between these orders and any prior parenting order or injunction the earlier orders are discharged.

6. That pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

7. The mother's case outline, draft trial plan and summary of argument are exhibit ‘AK’.

8. That the father's summary of evidence and trial plan will be exhibit ‘AL’.

9. The father has seven days within which to object in writing to the Court receiving exhibits ‘AK’ and ‘AL’.  Any objection is to be provided by letter addressed to my Associate and submitted via facsimile, copies of which are to be immediately served upon the Independent Children's Lawyer and the mother's lawyer.

10. The father has leave within seven days to:

    (a)Submit to my Associate for admission into evidence a list of transcript references of the evidence provided by Ms Q on 12 February 2008 before the Honourable Burr J in these proceedings which formed the basis of questions to Ms Q in her evidence taken before Ryan J.

    (b)Make written submissions concerning inconsistencies in Ms Q’s evidence (if any) which the father submits the Court should consider.  These submissions to be provided upon the same terms as the correspondence referred to in subparagraph (a) above.

11. In the event the father provides letters or documents reliant upon the above two orders the Independent Children's Lawyer and mother shall provide any written submissions in reply upon the same terms and conditions as referred to in the above orders within a further seven days.

12. If the Independent Children's Lawyer and or mother make written submissions the father has a further seven days in which to reply.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: ADF1855 of 2003

MS SHORT

Applicant

And

MR TREVILIAN

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. Ms Short (“the mother”) applies for orders enabling her to change the school which the parties' daughter V attends from R College to U High School.  Mr Trevilian (“the father”) resists the mother's application and proposes that V completes her education at R College where she has always attended.

3. This matter arises within the context of parenting proceedings concerning the parties' three daughters living arrangements.  Last week I reserved my decision concerning all issues.  Because the school issue needs to be determined before the commencement of term next week my judgment solely addresses this issue.

4. The parties have three children, S who is 16 years old, V who is 13 and a half years old and E who is 10 and a half years old.  Following the parties' separation in June 2003 all three children remained in the mother's care.  In various configurations they regularly spent time with the father.  In August 2005, contrary to orders and the mother's wishes, S commenced living with the father.  Thereafter and until August 2008 S and the mother rarely saw each other.

5. For reasons which do not require elaboration at this stage, contrary to S and the father's wishes, through a combination of orders and informal arrangements, in mid-January 2008 S left the father's care and until August 2008 she lived variously with family, friends and for a significant period in her school boarding house.  On 25 August 2008 S returned to the mother's home where she has resided ever since.

6. S has not seen the father since about February 2008.  V and E have not seen him since 2 December 2007.  This is not through any lack of interest by the father and occurred because, on an interim basis the mother persuaded this Court that contact involved an unacceptable risk to the children unless, for V and E, he saw them at a contact centre and irrespective of the conditions to S.  Whether or not the children were or are at risk if unsupervised with the father is one of the pivotal issues in the parenting proceedings.

7. Concerning the children's future living arrangements, the parties agree V and E will remain living with the mother.  Both parties want S to live with them.  The mother says the children should not spend time or communicate with the father.  In relation to the younger children the father wants to spend time with them in accordance with orders made on 21 March 2006.  This essentially means the father and younger children would spend time together each alternate weekend and for half of each school holidays.

8. Because of the complex issues involved an Independent Children's Lawyer was appointed for all three children.  By arrangement between the parties, the Independent Children's Lawyer, the Court and the Department for Families and Communities, Ms J, who is a psychologist, was retained to complete a psychological report on the family. Ms J completed two reports, the first addressing matters arising from her February and March 2008 interview and the second her December 2008 and January 2009 interviews.

9. Because V’s desire to change school arose after Ms J completed her first report this issue is addressed in her second report.  By way of opinion and recommendation Ms J says:

   [V] has appeared on two occasions to the author to be a mature, intelligent, focused young person with the capacity to consider the many different issues which need to be considered when making decisions.  She has been able to apply this awareness in observation of her own family as well as in considering the risks and potential benefits that may apply in her own wish to change schools.  It is acknowledged that early adolescence is a difficult time for young people to establish new social circles and that this might be more difficult for [V] than she has as yet anticipated.  She has also however managed through difficult times in her own established school setting and has reached a greater understanding of her own interests in life.  [V’s] wish to attend [U] High School appears to be well considered.

10. Although the gravamen of Ms J’s second report suggests she supported V’s desire to change schools, she did not explicitly say so.  In her oral testimony which, on the schooling issue at least, is consistent with her report, Ms J recommends V attends U High School.

11. The father submitted the Court should attach little weight to Ms J’s opinion and evidence.  For reasons which do not need to be exhaustively restated here, he submitted Ms J’s evidence is flawed and in particular that on this issue she considered the father was motivated by snobbery and lacked focus on V’s best interests.  He pointed out that Ms J was not provided with a raft of documents and information which he considered significant to the schooling issue.

12. Whilst there is no doubt that the documents which the father said Ms J was lacking had not been provided to her, her task was to establish and assess V’s views and matters arising from them, including the weight which Ms J considered the Court should attach to them.  Matters involving V’s emotional and psychological wellbeing also required Ms J’s expertise.  In relation to these matters Ms J’s opinion was not undermined because the documents to which the father made reference were unavailable to her.

The applicable law

1. Orders concerning a child's education are parenting orders (s 64B) and are conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a Court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns 18 each of the child's parents has parental responsibility for the child. The meaning of parental responsibility is defined in s 61B as: “... all of the duties, powers, responsibilities and authority which by law parents have in relation to children.” This includes issues concerning the child's education: s 61C(4).

2. Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60A and s 65AA ensures that the child's best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant section 60CC factors are to be examined and ultimately weighed. Paragraph 60CC(3)(m) permits the Court to take into account: “any other fact or circumstance that the Court thinks is relevant.” This ensures that the infinite variety of individual children's circumstances can be addressed. The importance of s 60B factors varies from case to case but as a general approach examined from the child's perspective, points the way to an optimal outcome. Where there are no countervailing factors the s 60B principles may be decisive.

3. On 21 March 2006 the parties entered into consent orders concerning the children.  I incorporate these orders into these reasons.

   UPON NOTING THAT:

   A.     The parties’ undertakings to this Honourable Court on the 8^th day of August 2003 are ongoing.

   B.     That the parties undertake that each of them will not:

   a.Telephone and/or communicate with the other save as is necessary in relation to matters directly and specifically affecting the infant children.

   b.Approach any home or other premises occupied by the other save and except to attend at the front gate for the purpose of collecting and delivering the children from and to the parties and each of them to comply with any orders of this Court.

   c.Reside in any premises within one kilometre radius of the principal place of residence of either of them.

   BY CONSENT IT IS ORDERED:

   1.      That the wife do have the sole responsibility for the day to day care, welfare and development and residence of the children [V] born […].6.1995 and [E] born […].6.1998.

   2.      That the husband do have the sole responsibility for the day to day care, welfare and development and residence of the child [S] born […]7.1992.

   3.      That the husband shall do all things necessary to cause the child [S] born […].7.1992 to attend upon Dr [GN] in the absence of the husband at such times as may be agreed between the husband and Dr [GN] or in default of such agreement as recommended by Dr [GN] for the purposes of the said child receiving counselling in relation to her relationship with her mother and preparing the child to have contact with her mother as referred to in paragraph 5.1 of these Orders, such counselling to include at least two periods of counselling and interaction between the mother and the said child.

   4.      That the father do give and the mother do take contact to the said child [S] born […].7.1992 as follows:

   4.1On two occasions on alternate Saturdays for such period and upon such conditions and at such times as Dr [GN] recommends;

   4.2Thereafter on each alternate Saturday from 2.00 pm to 5.00 pm commencing on a Saturday not being the husband’s contact weekend pursuant to paragraph 6.1;

   4.3at such further or other times as the parties may agree and taking into account any recommendations made by Dr [GN].

   5.      That the contact referred to in paragraph 4 hereof stand suspended on those occasions when the husband has contact with the children [V] and [E] as provided for in these orders.

   6.      That the wife do give and the husband do take contact to the said children [V] and [E] as follows:

   6.1during school terms on each alternate weekend from 6.00 pm Friday to commencement of school Monday or Tuesday in the event that Monday is a public holiday or a pupil free day commencing 24^th of March 2006;

   6.2throughout the year by telephone at 7.00 pm on each Tuesday commencing on 21^st March 2006 for a period not exceeding 15 minutes for each child AND THAT the wife and husband facilitate [S] speaking to her sisters for an additional total of 15 minutes on those occasions during which time the wife be at liberty to speak to [S];

   6.3for one week in each two week school holiday period such contact to include:

   6.3.1the second week of the July school holidays in 2007 and each alternate year thereafter;

   6.3.2the first week of the July school holidays in 2006 and each alternate year thereafter;

   6.3.3for the second week in the April and September school holidays.

   PROVIDED THAT the contact in 6.3.1 and 6.3.3 shall commence at 10.00 am on the middle Sunday of the school holidays and conclude at 5.00 pm on the following Sunday

   AND in relation to 6.3.2 the contact shall commence at 10.00 am on the first Saturday of the holidays and conclude at 5.00 pm on the following Saturday.

   6.4During Christmas school holidays each year:

   6.4.1from 6.00 pm Christmas Day 25th December to 6.00 pm 29 December;  and

   6.4.2for 17 days and nights concluding at 6.00 pm on the Sunday preceding the resumption of school.

   6.5from 10.00 am to 5.00 pm on Father’s Day each year;

   6.6from 10.00 am to 5.00 pm on the husband’s birthday in each year if it falls upon a weekend or holiday and from after school until 7.30 pm if it falls upon a school day;

   6.7for three hours on each of the three children’s birthdays should the said birthday fall on a weekend or holiday from 2.00 pm to 5.00 pm for three hours from 3.30 pm to 6.30 pm should the said birthday fall on a school day;

   6.8at such other times as the parties may agree.

   7.      That the contact referred to in paragraph 6 be suspended as follows:

   7.1on Mother’s Day in each year from 10.00 am to 5.00 pm;

   7.2on the wife’s birthday from 10.00 am to 5.00 pm;

   7.3on each of the three children’s birthdays for a period of three hours should the said birthday fall on a weekend or holiday from 2.00 pm to 5.00 pm and for three hours from 3.30 pm to 6.30 pm should the said birthday fall on a school day;

   7.4during all school holiday periods.

   8.      That the handover for contact when not occurring at the conclusion or commencement of school (in which case handover shall occur at the school) shall take place at the front gate of the husband’s residence at the commencement of contact and at the front gate of the wife’s residence at the conclusion of contact.

   9.      That each party be restrained and an injunction be granted restraining each of them from changing any of the said children’s schooling enrolment without the consent of the other party first being obtained.

   10.    That the husband and the wife do ensure that the children attend their extra curricular activities during contact including prearranged music, sporting, social and educational activities and attend to their homework commitments and music practice (as recommended by their music teachers) PROVIDED THAT neither party shall arrange any optional or non-core extra curricular activities during the other party’s period of contact without the consent of the other party.

   11.    That each party do all such things as shall be necessary to ensure that the children’s own musical instruments are made available to them during contact for daily practice and all rehearsals, concerts and lessons.

   12.    That each party do forthwith advise the other of any medical or dental emergency, significant treatment, minor surgery, hospitalisation or other medical/dental treatment required to be administered to any of the children whilst in the care of each of them.

   13.    That each party do all things necessary to cause and authorise any school at which the three infant children shall attend from time to time to provide all such reports, notices, memos or newsletters and assessments to the non residential parent.

   14. That these orders incorporate the particulars pursuant to Section 65DA of the Family Law Act, a copy of which is annexed hereto.

   15.    That the appointment of the child representative be and the same is hereby discharged save and except as to any application as to the costs of the child representative.

4. When these orders were made the Family Law Act as it then operated, did not grant a parent who had a residence order by virtue of that order alone the same bundle of rights as a parent who under the preceding Act had an order for custody.  See Vlug and Poulos (1997) FLC 92-778. The Pt VII amendments introduced by the Family Law Reform Act 1995 (“FLRA”) defined “residence” orders as being solely concerned with whom a child lives: s 64B(2)(a). Section 61C of the FLRA which is identical to s 61C of the current Act provided that subject to any orders each parent has parental responsibility. Unless there was a specific issues order concerning the child's education, parental responsibility included responsibility for the child's education. Section 61D of the FLRA provided that a parenting order conferred parental responsibility on a person only to the extent identified in the order. Where no contrary order had been made parents could exercise their s 61C parental responsibility independently or jointly. This would be so whether the parents were married, living together, never lived together or separated, as long as there were no contrary orders in force. The amendments commencing 1 July 2006 introduced into Pt VII do not alter this situation. See Goode & Goode (2006) FLC 92 -286.

5. Relevantly, order 1 made 21 March 2006 gave the mother: “Sole responsibility for the day to day care, welfare and development and residence of [V] and [E].”  Order 2 gave the father similar rights and responsibilities in relation to S.  There are no other orders which impinge upon the parties' parental responsibility.  Order 1 did not extinguish the father's parental responsibility concerning decisions relating to which school V attends nor did it limit the mother's parental responsibility concerning V’s schooling.  The order did no more than address V’s living arrangements and give the mother sole parental responsibility for day to day decisions.  While this enabled her to solely decide whether or not on a given day V would attend school it did not address where she would be educated.  The effect of these orders is that the mother and father individually had authority to make decisions concerning V’s education including which school she attends.  Applied to the circumstances of this case this meant that the mother did not need the father's agreement to withdraw V from R College and enrol her at U High School.  Had she decided to proceed in this fashion the father did not need the mother's consent to withdraw V from U High School and return her to R College.  The parties clearly being at odds on this point, rather than have V enrolled and withdrawn from various schools depending on which parent was exercising their individual authority the mother sensibly sought the Court's determination on the issue.

Background Facts

1. During the hearing it became clear the parties agreed on a number of important matters.  Relevantly these include:

   a)The parties jointly decided their three children would attend R College.

   b)Since each child was about three years old they have attended R College.

   c)All three children excel academically and musically.

   d)S and E are happy at R College which is where they will almost certainly complete their secondary education.

   e)R College is an elite school.

   f)Since the parties separated they have been unable to communicate about the children or at all.

   g)There is no reasonable likelihood that the parties' poor communication will in the future improve.

   h)The mother has the capacity and desire to care for V and E and in her care, both children’s educational, intellectual, emotional and psychological needs will be adequately addressed.

   i)Although the father is concerned about aspects of the mother's parenting capacity for V and E he is not so concerned that he considers those children's welfare is better served by living with him.

   j)In May 2008 V applied for admission to U High School.

   k)U High School has accepted V’s application and she is eligible to commence there at the beginning of the 2009 school year.

   l)R College, upon conditions the parents are willing to meet, will keep a place open for V until at least the commencement of term 3 in 2009.

Applying the Law to the Facts

1. Section 60CC(2) comprises a list of primary considerations, which subject to subsection (5) the Court must consider when determining the child's best interests.  Section 60CC(2)(a) concerns the benefit to the child having a meaningful relationship with both of the child's parents while s 60CC(2)(b) concerns the need to protect the child from physical or psychological harm, from being exposed to abuse, neglect or family violence.  While these are important factors to be considered in the outstanding parenting issues they are irrelevant to the schooling issue.

2. By s 60CC(3)(a) where a child expresses views about his or her welfare, the child's views must be considered together with any factors the Court feels are relevant to the weight to be given to the child's views. This involves analysis of the child's views including any factors such as the child's maturity or level of understanding.

3. V first raised the possibility of leaving R College for U High School in March 2008.  For some time V had spoken to the mother about her sense of discomfort in her R College school environment.  She began of her own volition to make inquiries about transferring to another school.  As a result of her inquiries V settled upon U High School.  In April 2008 V and the mother attended an open day at U High School.  Pleased with the school's facilities and environment, on 26 May 2008 V wrote to the Principal at U High School seeking approval to enrol in the school commencing 2009.  V’s letter (annexure ‘A’ to the mother's affidavit filed 9 October 2008) is instructive in the sense that it reveals her particular interest in U High School's environment and culture, her enthusiasm for subjects available at U High School but not at R College and her pursuit of academic excellence which she considers compatible with participation in her many co-curricular activities.  In this letter V wrote:  “I have a very positive attitude towards learning as you will see from my school reports (enclosed).  I think that the education of young people is really important for their future and the future of the world.  People's schooling really sets them up for life and when their education is enjoyable they are all the more willing”.  I highlight the last sentence of the passage quoted from V’s letter. 

4. V’s school reports are excellent and it is not surprising that on 26 September 2008 U High School offered V one of only four places available to new students enrolling in Year 9 in 2009. 

5. The following day V wrote to the father seeking his support for her desire to attend U High School.  Again, this letter is instructive and highlights V’s particular interests in attending U High School.  She speaks of being unhappy at R College and said:  “... that [R College] is no longer providing me with what I need from a school”. 

6. Because the father is restrained from communicating directly or indirectly with V, he responded to her and the mother's solicitor's letters dated 30 September 2008 and 2 October 2008 by letter of 7 October 2008 addressed to the mother's solicitor.  In his correspondence the father acknowledged V’s letter as sounding like “the [V] I know.”  The father's point being that V had always been interested in politics and making a real difference on issues such as climate change, whaling and deforestation.  In his oral evidence the father, even though deprived of the opportunity to discuss this issue with V, accepted that V had given real thought to the ramifications of leaving R College in favour of U High School and it appeared she genuinely wanted to make this change.  So that it is clear, the father, although accepting V is a highly intelligent and personally mature child, did not consider she had the life experience or complete information required to fully appreciate either the short or long term ramifications of leaving R College for U High School.

7. At some length, Ms J explored with V her views concerning schooling and her rationale for wanting to attend U High School.  Having decided upon attending U High School, V told Ms J she “had felt really excited about the change but that this had been trampled on.”  V pointed out that at U High School, she could focus on subject choices of particular interest to her rather than “wasting time” on languages and geography.  V explained she believed she would enjoy the hands on approach to her subject interests at U High School compared to the more theoretical approach adopted at R College.  Relevantly V explained that she appreciated the challenges involved in making new friends at a new school and that her passion for music would require primary support out of school rather than, as is the situation presently, substantially through school.

8. The mother had discussed with V the advantages and disadvantages of leaving R College for U High School.  These discussions appear to have occurred in early 2008.  Once the mother appreciated the strength of V’s desire to change school she supported the idea with little reality checking concerning the positive and negative ramifications of changing schools.  V asked S for her opinion about this issue and told Ms J she listened to and considered S’s views on the subject.  S disagreed with V’s choice of U High School as she believed R College offered a more focused academic environment.  S told Ms J that V is unhappy with the elitist culture she perceived at R College and understood V wished to distance herself from the “trivial things” which influenced her peer group at R College.

9. When one stands back and considers all of the evidence concerning V’s views about her schooling, although she has not had the opportunity to hear and consider directly from the father his genuine concerns about her proposal, V has an appropriate level of understanding about the ramifications, at least during her childhood, of leaving R College for U High School.  V’s views are strongly held and have been adhered to for nearly 12 months.  V is angry and upset with the father for failing to accept and facilitate her changing school.  She does not appreciate that his views are a genuine reflection of his concern for her.  Rather she sees this as another example of these children being held hostage to their parents antipathy towards each other.  This is an immature but, in the circumstances, understandable reaction.  It does not detract from my comfortable satisfaction that V brings to her reflections on the advantages and disadvantages of changing of school, a degree of maturity beyond her chronological age.  V’s view warrant significant weight.

10. Section 60CC(3)(b) concerns the nature of the child's relationship with the child's parents and other persons including grandparents.  There is no nexus between V’s desire to change school and the nature of her relationship with her parents or others referred to in the subsection.  Although the mother's willingness to implement V’s desire to change schools compared to the father's opposition to it, may influence V’s relationship with her parents in the short term, there are no significant long term ramifications.  These are not factors that warrant weight in this part of the proceedings.

11. Section 60CC(3)(c) is irrelevant.

12. Section 60CC(3)(d) is an important factor.  This subsection concerns the likely effect on changing V’s circumstances.  In this case the relevant issue is the likely effect of enabling V to attend U High School and consequently leave R College. 

13. The parties’ separation has been very difficult for the children.  From the children's perspective their lives since June 2003 had been lived in the shadow of unrelenting parental disputation and but for a few months constant litigation.  From V’s perspective, although her mother has been a constant presence, the only other constants have been her attendance at R College and living with E.  In a practical sense, S and the father have come in and out of her life.  In March 2008 she moved home for the first time and during 2008 her closest friend left R College.  The entire family was in a state of crisis at the commencement of 2008.  It is unsurprising that in March 2008, in a state of confusion and turmoil, V scratched her wrist and reported to a school counsellor that she had been accessing suicide websites. 

14. Although phrased differently, the father contends that throughout 2008 V has endured enormous change and thus the Court could not be confident she will easily adapt to further change, particularly when this involves losing one of the key constants in her life.  As to the latter, it is beyond doubt that appropriate R College staff are fully aware of the children's difficult circumstances arising out of their parent's separation.  The staff have maintained a clear focus on the children's welfare and have, particularly in V and S’s case, helped them survive pressures to which many other children would have emotionally succumbed.  This has been achieved without V’s academic achievements faltering and speaks volumes for the positive influence R College has been in V’s life.  This is a finding to which I attach considerable weight.

15. If V leaves R College, whether for U High School or another school, it is highly unlikely a new school would acquire the in depth understanding of her circumstances which exists at R College.  Thus, although V may be able to access counsellors and similar support staff at a new school, compared to the supports available to her presently, these are likely to be comparatively superficial.  In making this finding I do not intend to convey any implied criticism of the services available at her new school.  To an extent, the significance of this matter is moderated by V’s maturity and the supports available beyond school.  For example, V has seen a psychiatrist from time to time.  I infer that psychiatrist remains available to V should she need him. 

16. Ms J described V as a remarkable child which description is consistent with all of the evidence.  Although V has been forced to deal with significant and upsetting changes since June 2003, she has persistently demonstrated her adaptability for change, including those changes she has found traumatic.  From Ms J’s evidence it appears V is reasonably emotionally settled and it is likely that she will adapt reasonably well to the loss of R College’s support.  To a considerable extent this is because this is change which she desires and which she is likely to perceive is brought about because her views have been accepted and treated respectfully.  These are findings to which I attach considerable weight.

17. Section 60CC(3)(e) is to this aspect of the proceedings, irrelevant.

18. Section 60CC(3)(f) concerns relevantly the parents capacity to provide for a child's needs, including their emotional and intellectual needs.  Subsection (g) concerns the child's maturity, sex, lifestyle and background.  I will deal with these two matters together.  They are factors to which I attach particular significance.

19. I have V’s recent school reports.  As earlier referred to, V is a highly intelligent child who is excelling academically.  So that there is no doubt about this matter, it is useful to here summarise the school's reports concerning V over the last 12 months.  At the end of 2007 in V’s report the head of her middle school and school principal summarised V’s performance as follows:

    [V] is a thoughtful, highly intelligent girl who works at well above Year 7 level in most areas.  She has consistently produced work of a very high intellectual standard and has demonstrated in various competitions and challenges that she is among the elite at her age level.  [V’s] challenge for the future will be to develop her organisational skills so she can maintain this high standard as the pressures of schooling increase.  She has also developed personally and socially which has been most pleasing to see.  [V’s] thoughtful, insightful contributions to class discussions have been valued by all.  I have thoroughly enjoyed [V’s] challenging of my knowledge and thinking and I hope that this desire to learn and to question will continue throughout her schooling.  Best luck for next year [V].  [V] has had an impressive year in which she has applied herself to her studies and contributed through involvement in the co curricular program.  Well done [V], best wishes for 2008.

    At the end of 2008 V’s school performance is summarised as follows:

    [V] has made the most of her opportunities this semester in all areas of study, achieving outstanding results across all of her subjects.  She has been a well organised and motivated student who has worked diligently and competently in all areas.  She has continued to participate in a diverse range of school activities including sport, music and debating and managed again to keep up with all of her commitments.  In addition to these commitments she has continued to fulfil her role of environment representative for the form.  [V] has proven to be a reliable, responsible and cooperative member of the form who has exhibited a cheerful and friendly demeanour to her peers.  I wish her happiness and success in her future endeavours.  [V] deserves to be proud of this report.  I congratulate her on her outstanding achievement.  [V] has contributed positively to many aspects of the College and I wish her every success in 2009.

20. In both reports one sees consistent achievement at the highest level in subjects such as English, Mathematics, Science, Languages, Art, Music and Religious Studies.  Indeed, having regard to the results achieved subject by subject, one could not suggest that the school's fulsome praise at the end of 2007 and again at the end of 2008 was anything other than completely appropriate.  What is apparent from these reports is that in every respect V achieves at her chosen task to the highest level.  If V remained at R College notwithstanding Ms J’s concern that V says she will refuse to return to R College or attend any other school if her desire to attend U High School is thwarted, the reality is V is highly likely to attend and continue to achieve at the highest level.  These are findings to which I attach considerable weight.

21. V challenged S’s belief that U High School lacked the opportunity for academic excellence provided by R College, yet the very point V makes in relation to the benefits of U High School compared to R College is that U High School does not have the same academic focus she finds tiresome at R College.  The point which I have found most troubling is whether U High School is likely to offer an educational environment in which V will continue to excel academically and in the co-curricular setting.  The mother has satisfied herself that U High School offers an appropriately high level of academic education that V with her intelligence, work ethic and ambition will enable her to excel.  It is important for V given her ambitions that she excels not only in the context of U High School, but in the context of the wider community.  The parents and indeed V, expect V to complete tertiary education.  It is important that at U High School, if this is where she attends, she receives sufficient marks for university admission, in whichever faculty she ultimately decides upon.  There is no doubt that if she remains at R College this will be achieved.

22. Having regard to the totality of the evidence concerning V’s high level of motivation, high intellectual capacity, personal diligence, maturity and views, it seems to me V would need to attend a school whose school performance would almost defy description, before one could be concerned that she is unlikely to continue to excel and excel to the point where tertiary education in the faculty of her choice remains all but a certainty.  The evidence concerning U High School although not as complete as the evidence concerning R College, is sufficient for me to be comfortably satisfied that U High School offers V an opportunity to ultimately attend the university of her choice in the faculty of her choice.  This is a finding to which I attach considerable weight.

23. The father highlighted from his knowledge of U High School, particular concerns about that school's environment.  He is comforted by R College’s “no drugs” policy.  Simply put the effect of R College's policy is that any student found with drugs in her possession is expelled.  U High School's policy is different.  The father says he has learned that drugs can be found on that school’s premises and he is concerned that at U High School V will come into contact with others who have or presently use illegal drugs.

24. V herself has never used drugs and is strongly opposed to them.  The anti drugs message of R College, which is strongly reinforced by her parents’ attitudes, is firmly embraced by this child.  It would be an extraordinary departure from the manner in which V has lived her life to date for her to experiment with drugs.  It would also be surprising if V came into contact with drugs only if she went to U High School.  The unfortunate reality is that illegal drugs are wide spread and if V decided to abandon her anti-drug stance, whether she is at U High School or R College, she could do so.  In this case I am strongly satisfied V is unlikely to be influenced to take drugs.

25. The father is unhappy with the standard of dress at U High School and says the quality of the school grounds and school community is less than that available at R College.  At R College he says, and the evidence supports this, there is a strong expectation that the students attend in school uniforms and dress generally at a sophisticated level.  The school grounds are attractive with the whole of the physical environment being one which the parents and children have enjoyed.  V has been inculcated through R College and her parents' influence with the idea of the importance of personal presentation and appropriate behaviour.  She is a well behaved and well presented child.  However, V lives in the real world and she herself will decide, whether she attends U High School or R College, the extent to wish she wishes to adhere to the strict uniform standards and some of the more formal aspects of the school environment which the father in particular finds so attractive at R College.

26. The strength of the influences which V’s parents and R College have had on her makes it unlikely that by attending U High School or indeed another school V will abandon those standards which she and her parents have to date adopted.  Thus while I accept the father's concerns are genuinely held I do not accept his essential premise that by attending U High School there is an unacceptable risk to V that she will embrace a drug culture or personal standards which will undermine her happiness or position in the community.  These are findings to which I attach reasonable weight.

1. The father is concerned that by attending U High School V must travel a short distance by bus.  It is difficult to understand why this so troubled him and in my view this is a circumstance which is barely relevant.  True it is that V can walk to R College from her mother's home but the time and effort involved in attending U High School is effectively irrelevant. 

2. Section 60CC(3)(h) is irrelevant. 

3. Section 60CC(3)(i) concerns the attitude to the child and the responsibility of parenthood demonstrated by each of the parents.  The mother has maintained all three children's enrolment at R College since the parties separated.  I note of course that for the period S lived with the father he met this responsibility.  The point here is the mother's regard for R College is manifest and this is not an issue from her perspective about some deficiency at R College.  If it was one would have expected that at least the application to change schools would have included E.

4. In the years post separation V has lived with her mother.  The home environment has supported V educationally and is highly likely to have substantially contributed to her academic success.  The mother involves V in a wide range of extracurricular activities.  So far as V’s education is concerned the mother's attitudes to her parental responsibilities have been exemplary.  It is noteworthy that the father has failed to contribute to V’s financial support since December 2007.  It appears his actions are particularly motivated by the mother's current application to stop him spending time or communicating with V.  This is a matter purely between the parents.  V in this instance is right if she considers the father's motivation in failing to support her as arising from his dispute with the mother.  The father's failure to contribute to V’s school expenses or her support in any fashion since December 2007 reflects poorly on his parental responsibility to this child, in the particular, her education.  This is a factor which warrants modest weight.

5. Sections 60CC(3)(j) and (k) are irrelevant in this application.

6. Section 60CC(3)(l) emphasises the desirability of making orders the least likely to result in future proceedings.  This is an important factor as far as V’s education is concerned.  Whatever order I ultimately decide is in V’s best interest concerning her education, it will be designed to ensure that necessary decisions are able to be taken promptly from V’s perspective without stress and to minimise the prospect that there will be further litigation.  Litigation has taken an extraordinary toll on this family and orders which enable the further opportunity for parental disagreement are strongly contra-indicated.

7. Section 60CC(3)(m) concerns any other fact or circumstance which the Court considers relevant.  As I have found S and E will remain at R College.  The father submits it is advantageous to the three siblings to be at the same school.  He particularly supports the advantage to E that as she joins the middle school next year V is there to greet her.

8. From Ms J’s report it is clear the girls have little contact if any, with each other at school.  Again this is unsurprising as each of them has their own social milieu.  E has been at R College since she was three years old.  As she goes into middle school she is accompanied by children to whom she is strongly attached.  Even if E was interested in V’s presence at the middle school in first few days of transition this is likely to be of fleeting.  It is  my strong view that almost as soon as E arrives at middle school, any particular interest she had in V’s support would disappear.  If I am wrong on this the reality is V is unlikely to want to be required to spend significant amounts of time out of class with her younger sister.  In making this finding I do not intend to convey any concern about the quality of V and E’s relationship but the simple reality that V has her own interests at school into which she is unlikely to allow E to intrude.  The girls, at least the younger two, have a very strong relationship and whether they attend the same school or V leaves R College for U High School the quality of the girls' relationships is unlikely to be affected.  I make the same finding in terms of the lack of impact upon V and S’s relationship if V leaves R College for U High School.

9. There is considerable overlap between subsection 60CC(4) and 4(a).  There are no further matters which subsection (4) and (4)(a) require that I consider.

Conclusion

1. As must be apparent I am persuaded V should be able to leave R College for U High School.  The parties have made arrangements with R College which are reflected in exhibit ‘H’ for V’s possible return to R College if U High School does not live up to her expectations.  R College requires that the parties pay a holding fee, some 20 percent of the annual school fees to keep a place open for V.  The father says he is happy to pay the holding fee and will do so.  He also says he is happy to pay V’s school fees.  One wonders if he is happy to pay them now why he was so disinclined to pay them post December 2007.

2. Although the mother expressed some financial discomfort at solely meeting V’s R College expenses, the evidence reveals she is able and willing to continue to do so.  Financial matters have little role to play in this case.  The point is however that it is important for V that the parties ensure the holding fee is paid and if she wishes to return to R College within the next two terms she may do so.  With this option available to her, if for example U High School's level of education is deficient, the long term consequences for V are relatively inconsequential.

3. Turning then to the form of order.  As I said earlier, decisions concerning a child's education are major long term decisions and an aspect of parental responsibility.  It is possible in the years ahead further issues beyond withdrawing V from R College and enrolling her at U High School may arise.  These parties have demonstrated a chronic inability to make a necessary decision for V.  I doubt that she would readily tolerate a similar situation should it arise in the future.  Because there is a possibility, albeit a theoretical one, of further decisions concerning V’s education, I will make an order that the mother has sole parental responsibility for decisions concerning V’s education.  Granting the mother specific responsibility for V’s education enables her to withdraw V from R College and enrol her at U High School forthwith.  To put this issue beyond doubt I will discharge any orders previously made which may restrict her capacity to exercise the sole parental responsibility which by these orders the mother is given. 

4. The mother will need to keep the father informed about major long term decisions concerning V’s education and authorise any school she attends to provide him with the type of information parents routinely receive.  His interest in V’s education is manifest and there is no good reason to permanently exclude the father from receiving information concerning V’s education.  If for some reason he believes he has a proper basis to bring an application to challenge the mother's educational decisions concerning this he will be able to do so.  It is my sincere hope that such a situation does not arise. It is disappointing to record that notwithstanding the strength of the father’s opposition to the mother’s proposal that V changes school he has not attended to take judgment on this issue.

5. For these reasons I am satisfied that the orders identified at the start of this judgment are in V’s best interests

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate: 

Date:  23 January 2009