Short and Trevilian (No. 8)

[2008] FamCA 921

FAMILY COURT OF AUSTRALIA

SHORT & TREVILIAN (NO. 8) [2008] FamCA 921

FAMILY LAW – CHILDREN – interim proceedings – child’s schooling – application by wife seeking variation of orders to enable acceptance of offer of enrolment for child at new school – views of child – permission given to enrol child – injunction granted restraining parties from altering child’s enrolment at current school.

Family Law Act 1975 (Cth) ss 60B, 60CC

Goode and Goode (2006) FLC 93-286

APPLICANT: Ms Short

RESPONDENT: Mr Trevilian

INDEPENDENT CHILDREN’S LAWYER: Ms J. V. Cocks

FILE NUMBER: ADF 1855 of 2003

DATE DELIVERED: 20 October 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 20 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D.M. Berman

SOLICITOR FOR THE APPLICANT: Angela Ferdinandy

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: N/A

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms J.V. Cocks

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Judith Cocks

Orders

UPON NOTING that the husband has given his undertaking to the Court that should V wish to attend R College in 2009 that he will pay the fees for V for the first two [2] semesters in 2009.

IT IS ORDERED THAT PENDING FURTHER ORDER BY THE TRIAL JUDGE

1. Permission is given to the mother to enrol V at U High School in 2009 notwithstanding the injunction orders of the 21 March 2006.

1. Both parties are restrained and an injunction is granted restraining them from taking any steps to alter V’s enrolment at R College for 2009.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1855 of 2003

MS SHORT

Applicant

And

MR TREVILIAN

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application which comes before me today, brought by the wife in the proceedings, by way of an Application in a Case filed on 9 October 2008 in which the wife seeks that paragraph 9 of the order of 21 March 2006 be varied to enable her to accept a position for V at U High School, to enable her to commence at U School in 2009.

2. The matter came on before me urgently, as the documents indicated that the matter had to be heard before 13 October.  I then adjourned the matter to enable the husband to consider the documents with which he had only been served that morning and with a view to hearing his submissions.

3. This morning I have received the husband's response to the application and his affidavit in relation to those issues. 

4. The matter concerns the welfare of the child V.  V was born in June 1995.  She is therefore aged 13.  She is one of three children of the parties. 

5. Regrettably that there has been litigation between the parties, concerning the children, for a period of years.  The relationship between the parties is such that there have been obvious difficulties in the parties agreeing upon many matters, let alone undertaking their responsibilities as parents to reach agreement about matters which are in the best interests of the three children.

6. The final hearing of the proceedings in relation to the children's issues has been delayed for various reasons in relation to matters which have been outstanding in other areas and jurisdictions.  The matter is now listed for trial before Ryan J in the week commencing 17 November 2008 but is expected to continue as a part-heard matter to resume on 12 January 2009.

7. I am informed, this morning that the updated Family Assessment will only be completed during that gap in the trial and will not be available at the commencement of the trial before Ryan J on 17 November 2008.

8. The question arises as to the steps which therefore should be taken by this Court in relation to the enrolment of V and her future schooling.  V and her two sisters have been attending R College for a considerable period of time.  It is the father's position that that should continue.

9. The father's response to the Application in a Case seeks the dismissal of the wife's application but in the alternative seeks that the application be adjourned before Ryan J at the trial, to await the outcome of those proceedings.

10. This is an option which will obviously benefit everyone, to the extent that, at the trial, the material upon which the parties will rely will be before the Court and will be capable of being tested in the appropriate way.  There is also the downside to that alternative, which is that it leaves the matter undecided for a time which closely approaches the beginning of the school year in 2009.

11. In any event it is necessary for me to consider both the application of the wife for the orders she seeks and the application of the husband dismissing those applications, or, in the alternative, adjourning them to the trial judge.

12. Notwithstanding that this is a matter being heard on an interim basis, it is still necessary for me to take into account the material in the Family Law Act which places emphasis upon what is in the best interests of the children.  The Family Law Act, of course, envisaged that, and specifically states that, parents should be able to agree about matters affecting their children.

13. The objects of and principles underlying Part VII (being the long part of the Family Law Act which deals with children) provides specifically in section 60B(2)(d) that parents should agree about the future parenting of their children and that parents should share the duties and responsibilities concerning the care, welfare and development of their children.

14. In this case, notwithstanding the background of both of the husband and the wife in these proceedings, it is clear from the ongoing litigation over many years that the parents have not been able to agree about matters concerning their children, nor that they are able to work cooperatively to fulfil their duties and meet their responsibilities as parents.  Notwithstanding their background and advantages they have resorted to the Court to have decisions made about what is in the best interests of their children.

15. The Court is required to take into account specific factors set out in the beginning of Part VII of the Act.  In particular, however, the decision of Goode and Goode (2006) FLC 93-286 requires the Court, when making an interim decision, to give effect to the principles set out in section 60CC which determine how a Court is to decide what is in a child's best interests.

16. The primary considerations relates to the children having a meaningful relationship with both parents and the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.  These considerations do not assist the Court in determining, on an interim basis, the issue concerning V’s future school enrolment.

17. I turn therefore to consider the matters set out in section 60CC(3). The first of those is significant; namely, any views expressed by the child and any factors such as the child's maturity or level of understanding that the Court thinks are relevant to the weight it should give to the child's views.

18. V is now 13; she was 13 in June.  I have had the benefit of the recent school reports attached to the affidavit of the husband, which indicate that V is academically achieving well.  I think it is an accepted fact that she is a bright, intelligent child and has involved herself not only in academic pursuits at the school but many extracurricular activities, some of which could only be described as challenging.  However, the question does arise in relation to her maturity and level of understanding, what effect these ongoing proceedings have had upon V.  It is clear that V is aware of the breakdown of her parents’ relationship, the breakdown of any cooperation between her parents and the difficulties which have arisen in relation to the child S in particular.

19. It is alleged by the husband that V has contemplated suicide and has participated in some counselling with a psychiatrist.  The difficulties which V faces in these circumstances are therefore quite significant, but it is not appropriate for me to begin to guess at what impact those difficulties have had upon V’s currently-voiced clear decision to prefer U School as her school for next year and thereafter, rather than R College.  That is one of the difficulties I face in trying to determine the issue on this interim basis.

20. The other factors in relation to section 60CC(3) include the nature of the relationship of the child with each of the parents and other persons, including any grandparent or other relative of the child. It is clear from the information before the Court at the moment that the relationship between the husband and V has broken down. As a result of Court orders V does not spend any time with the husband or communicate with him. The Court will of course have to await the further family assessment in due course, to make definitive findings about the possible future relationship between V and each of the parents.

21. It has been expressed in correspondence and material provided from the school (again hearsay evidence yet to be tested) that V at times has not had a good relationship with her mother and has also been angry towards her mother.  Again, these are matters which will have to await final determination, when they are appropriately tested before the trial judge.

22. One of the other significant factors is the likely effect of any change in the child's circumstances.  A change of school will bring about a change for V which will be significant.  She has been attending R College for some time.  It will also involve her in not being at the same school as her older sister and her younger sister.

23. The practical difficulty and expense of the child spending time is not relevant. 

24. The capacity of each of the parties to provide for the needs of the child can only, in this instance, relate to the financial capacity.  I am not satisfied that the question of financial means is one which should influence this decision, particularly on an interim basis.  The parties are not of restricted means, although the wife's income is much smaller than that of the husband.  Nonetheless, it is a factor that the wife puts to the Court.  However, in my view V’s best interests would require the financial sacrifice by one or both of the parents if it was in her best interests to continue with the current schooling arrangements.

25. Subsection (g) refers to the maturity, sex, lifestyle and background of the child and other characteristics of the child that the Court thinks are relevant.  I have dealt with these to a certain extent when discussing the child's wishes.  It is clear from the school reports, to which I have already referred, that V has what could be described as exceptional abilities; she seems to have been excelling in many of the subjects to which her school reports refer.

26. It is also clear from V’s correspondence to the father and the school, (which are annexed to the documents provided to me) that she is currently expressing the view that R College does not meet her requirements and that her preference is to change schools.

27. The other factors set out in section 60CC(3) are not particularly relevant. One of the factors which would fall under (m), "any other fact or circumstances that the Court thinks is relevant", is that the husband has now given his undertaking in open Court that if V is to attend R College in 2009 he undertakes to pay all fees for V at R College for the first two semesters in 2009.

28. I have heard information from the Independent Children's Lawyer from the bar table that it is possible to reserve a place for V at R College, should she go to U School and then change her mind and wish to return.  That information suggests that reserving a place is cheaper than incurring the cost of one term's school fees being required.

29. The difficulty the Court faces in relation to an interim decision is the very fact that the material is not tested.  However, I am impressed by the school reports of V which suggest that V has been able to continue to focus on her academic achievements, notwithstanding the difficulties her parents have had in undertaking their responsibilities as parents to reach agreement about what is in her best interests.

30. I am impressed by her letter of 27 September 2008 in which she sets out what are alleged to be her reasons.  Of course, the Court is not yet able to undertake the assessment of whether these views expressed by V are views which have been brought about by improper influence by her mother and which would require, therefore, these views to be discounted.

31. Bearing in mind that some of the views expressed by V are consistent with views and hopes she has had for the future for some time, I give some weight to these views in these interim proceedings. 

32. I therefore propose to make an order that would allow the wife to enrol V at U School for 2009. I do so on the basis that it is a balancing exercise, balancing up all the factors under section 60CC in this difficult matter.

33. I propose to do so, however, on the basis that both parties are required not to take any steps which would endanger V’s ongoing enrolment in R College and on the basis that the further consideration of the payment of any costs or fees incurred by the parties in maintaining V’s enrolment in R College is a decision which can be determined by the trial judge, after she has heard all the relevant information concerning this issue.

34. I realise that my decision has the potential to inconvenience U School, but in these unusual circumstances I regret to say that I have placed V’s interests ahead of the inconvenience to U School (being an inconvenience if she does not attend, even though she has been enrolled).

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  30 October 2008