Small and Slattery

FEDERAL CIRCUIT COURT OF AUSTRALIA

SMALL & SLATTERY

[2013] FCCA 2414

Catchwords:
FAMILY LAW – Parenting – 12 year old child – issue as to which High School the child attends – aboriginality – best interests of the child.

Legislation:

Family Law Act 1975 (Cth), Part VII

Applicant:

MR SMALL

Respondent:

MS SLATTERY

File Number:

NCC 974 of 2012

Judgment of:

Judge Coakes

Hearing date:

25 November 2013

Date of Last Submission:

25 November 2013

Delivered at:

Wauchope

Delivered on:

26 November 2013

REPRESENTATION

Solicitor for the Applicant:

Ms Kelly

Solicitors for the Applicant:

Byrnes & Cox Lawyers

Solicitor for the Respondent:

Mr Collett

Solicitors for the Respondent:

Collett Lawyers

ORDERS

The Orders are made in accordance with the terms of settlement handed up in Court today and marked with the letter “A” and attached herein.
The child X born (omitted) 2001 (“X”) (“the child”) is to be enrolled in and to attend (omitted) School.
Both parents are to perform all acts and sign all documents necessary for X to be enrolled in (omitted) School at (omitted) and the father is excused from signing the school’s Statement of Belief.
The mother is to pay all school fees and any other charges imposed by the school to enable X to attend (omitted) School.
Order 1 of the terms of settlement filed today excludes parenting orders made earlier today as to X’s school.
The time X is to spend with the father in Order 6.1 of the terms of settlement filed today is to commence on Wednesday 4 December 2013.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT WAUCHOPE

NCC 974 of 2012

MR SMALL

Applicant

And

MS SLATTERY

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

(Edited from the transcript)

Introduction

I was not able to deliver an ex tempore judgment yesterday afternoon because the list did not finish until about 10 past 6, hence the reason for it being done today. The proceedings concern the parties’ only child, X who was born on (omitted) 2001 and is now 12 years and 4 months of age. The issue before me is which High School he should attend next year.
I am left with the distinct impression that this is a particularly difficult issue for the parents to consider and they have not been able to reach an agreement. There has been some past cooperation between them about the school X should attend. Currently, he is at (omitted) Public School by agreement between the parents where it was thought he would be less exposed to some bullying which he had experienced at another school.
In my view, embarking upon High School for X is a critical stage for him because that effectively marks the most significant period probably in his education and which will launch perhaps his further education at a tertiary establishment or employment or some other form of tertiary studies. That remains to be seen.
The father proposes that X go to (omitted) High School and he sets out reasons in his affidavit. His alternate proposal is that X go to (omitted) High School.
The mother’s proposal is that X attend (omitted) School and in the alternative, (omitted) School.
Those alternate schools which each parent suggests follow an observation by me on the last occasion when listing this matter for hearing that there should be a second alternative. But in reality, the competition is between (omitted) High School and the (omitted) School, both of which are in (omitted).
The current parenting arrangements for X are that he spends time with his father on a fortnightly basis from after school on Wednesday until back to school on the Monday morning. That was an arrangement that the parents as I understand it reached.
The effect of the parenting orders which currently apply and made on 15 January 2008 provide the parents have equal shared parental responsibility but X live predominantly with the mother and spend prescribed periods of time with the father including portions of the school holidays as set out in those orders. There is no useful purpose served in reciting those orders nor the other practical parenting orders which were made.
Currently there are outstanding applications for other parenting orders or for those orders to be revisited. I will return to that at the end of these reasons for judgment as I understand the parents may be able to reach an agreement.
It is well established on the evidence that the co-parent or past co-parenting relationship between the parents has broken down. It seems to me that there is a marked decrease in the communication between them and that they remain in conflict and there has been an increase in conflict about a number of matters not just schooling.

The respective applications at the hearing

The applications at the hearing yesterday are that in the father’s case X attend (omitted) High School or (omitted) High School. The mother’s application is that he attends (omitted) School or (omitted) School.

Existing relevant orders

I have referred to final orders which were made in 2008 on 16 September 2013. Temporary injunctive orders were made that each parent was restrained from discussing these proceedings with X and is further restrained from showing him any document filed in these proceedings or any document pertinent to these proceedings or produced for the purpose of these proceedings and is further restrained from asking X his wishes in this matter about his education in particular, his preference as to the school he would like to attend for his secondary education. Each parent was further restrained from causing or permitting any other person from discussing those matters with X.

The evidence

The evidence before me was the father’s affidavit sworn 15 October and filed the same day; the mother’s affidavit was sworn 22 October and filed the same day; the Child Dispute Conference Memorandum which was a child inclusive conference of Ms R following that conference which took place on 14 June 2013.
There are two exhibits. They are both in the father’s case of annual reports from (omitted) School supposedly for the 2011 school year and the 2012 school years.
The matter proceeded by way of submissions made by Ms Kelly on behalf of the father and Mr Collett on behalf of the mother.

The issues

It seems to me the issues are these.
a)Firstly, at which school is X most likely to benefit?
b)Secondly, to what extent if at all, should the issue of X's Aboriginality be considered in determining the school he attends?
c)Thirdly, to what extent if at all, should the issue of facilitation of Aboriginal culture and beliefs at a school determine the school X attends?

The relevant law

Insofar as the relevant law is concerned, I am required to take into account certain matters in Part VII of the Act. The significant sections are and those to which I must have regard firstly, section 60CA which provides and I’ll quote:
“In deciding whether to make a parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration.”
I am being asked to make a parenting order in this case which relates to the school he is to attend and then I must consider in determining a child’s best interests the matters set out in section 60CC.
There are two primary considerations set out in section 60CC(2)(a). First, the benefit to the child of having a meaningful relationship with both of his parents. And second, the need to protect the child from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence. I will consider those shortly. There are a number of other matters to which I must give consideration in section 60CC(3) insofar as they are relevant. I must take into account the matters set out in section 60B of the Act which sets out the objects and the principles underlying those objects.
Those are the matters which I am required to consider insofar as the relevant law is concerned.

Background

The father is 36 years of age. He lives in (omitted). He is a (occupation omitted) employed as a (occupation omitted) worker and he is largely full time employed as I understand his evidence.
The mother is 43 years of age. By occupation she is a (occupation omitted). Currently she is on extended maternity leave now in her second year of such leave, Mr Collett told me yesterday and there is a possibility she may be able to return to employment in about April or May of next year as I recall it. She also lives in (omitted).
The parties commenced their relationship in about (omitted) 2000. They did not marry and they separated on 15 July 2002. The one child of their relationship is X and currently he is in year 6 at (omitted) Public School.
The father has re-partnered with one Ms T and they married in (omitted) 2009. She is 42 years of age as I understand it. There are no children of that relationship.
The mother has also re-partnered with one Mr T as at April 2011. Mr T has a child, A, who is part of the mother’s household. He was born on (omitted) 2001. He is now 12 years and some eight months of age. They have a child of their relationship, Y, who was born on (omitted) 2012 and she is now one year and eight months of age.
There is no doubt upon the whole of the evidence before me that X is identified as being an Aboriginal child and both parents recognise the importance of that.

The father’s case

The father’s case is that as a consequence of an agreement which he and the mother had reached some time ago and which was conceded by the mother yesterday, X has not been brought up and the parents agreed that he would not attend a religious school but would attend a State school.
He has never attended a church service or mass and was not baptised. Each year he has been exempted from scripture classes as both parents the father deposes were opposed to him having a religious upbringing. The father gives evidence of his Aboriginal heritage and tribal affiliation. It is an important feature of the father’s case that he has concerns regarding (religion omitted) and the way it has impacted upon his people. He doesn’t believe in a (religion omitted) God and he does not want X to be indoctrinated in a system of beliefs which he does not share.
He also does not want X to be educated in a religious school system where his Aboriginality and culture are not as he asserts acknowledged, valued or supported. I should say at this point that that is not supported on the evidence before me to which I will return. The father points out at some length the form of education which X currently enjoys at (omitted) Public School and perhaps more particularly, X’s interests in science and maths as well as music and art, electronics and (omitted) club. He would like either to be a (omitted) or work in electronics when he grows up.
Of course it is very early to make that assessment. Children change their views about what they would like to do frequently as they progress through the steps of their growth and childhood into young adulthood.
The father is critical of a number of relationships which the mother has enjoyed following separation and expresses some concern about the stability of the mother’s present relationship. There is no evidence before me which would suggest that the mother’s present relationship is unstable or likely to come to an end which may cause a further change to be considered for X.
The father asserts that the mother has changed her own lifestyle consequent upon her relationship with Mr T and now has become a vegetarian and a teetotaller and does not permit X to consume meat any more. I will return to that shortly when I refer to the CDC Memorandum.
The father asserts to it being not of great significance as far as X’s education is concerned that the child of Mr T’s previous relationship, A who is in the mother’s household, is currently in his first year and reaching the end of his first year at (omitted) School.
The father asserts that A is not Aboriginal. I make no finding about that and that A has had a number of changes at school which perhaps lead to a suggestion there could be further changes of school. I make no finding in that respect. There is nothing before me which would indicate there is any proposal to change A’s school.
The father asserts that X is very proud of his Aboriginality and goes on to illustrate how that manifests itself as far as X is concerned. The father gives evidence that X also participates proudly in cultural events and gives evidence as to what has occurred in that respect and indeed, it is largely supported and agreed by the mother.
The father says that as to his extracurricular Aboriginal activities, the mother removed X from the (omitted) Medical Service and the (omitted) Youth Group. The mother gives an explanation for that in the CDC memorandum when she told the family consultant that she did not stop X attending either of those services or withdraw, but gave as a reason that X’s doctor had moved into a new practice and for continuity purposes, she followed him to his new practice and that X stopped going to the (omitted) because he had some items stolen and did not want to attend any more as he lost interest.
The father asserts and indeed it is common ground that the parents had agreed early this year that X would go to (omitted) High School. The mother signed a form to that effect. X had been offered a place on the high achievers class reserve list at that school and the mother in May, I think it was, accepted or at least signed for that possibility when she signed a (omitted) High School reserve list that is annexure A to the father’s affidavit.
The father goes into some detail as to the Aboriginal facilities which are offered at (omitted) High School by virtue of their programs. I make no findings in relation to the availability of those programs. There is no reason to doubt the father’s assertions in that respect. My view is that those sort of matters available at schools – not that I would make a finding about it, as I say – are not necessarily critical to X’s education or determinative of what should happen today.
The father’s preference clearly was for X to go to (omitted) High School and he gives reasons for that and then gives reason for his on reflection, a change of preference to (omitted) High School. He says that X had told him earlier this year on two separate occasions that he wanted to go to that school. The finer detail of those conversations is not before me. The father says that X had told him that all of his friends were going there which the father thinks is important and then he identifies a number of children by name whom he understands would attend (omitted) High School next year. The father emphasises that there are a number of other – or would be a number of other Aboriginal students at the school, about 47 and there is an education consultative committee.
The father made inquiries of the (omitted) School which is the school the mother proposes and says:
“It would be true to say that I was dismayed by the contents of that document.”
That is a summary of beliefs which is annexed to the mother’s affidavit as annexure B. The father concluded he would not be able to sign that document because it is contrary to his beliefs about conflict between a (religion omitted) faith as espoused by the school and his own beliefs as to the difficulties that may present for X because it is such a conflict as he sees it between the basis of his culture and cultural identity and historical teachings to Aboriginal students about the origin of the Earth and other matters.
The father also asserts that there were no Aboriginal activities at (omitted) School or participation by school students. He understands that there are eight Aboriginal students at the school but it is not catered for – their Aboriginality is not catered for in any way. I give that no weight. It is a conclusion. There is no evidence before me about that and there is some evidence in the mother’s case to suggest that there is a fostering of Aboriginal support at (omitted) School to which I will refer in her case.
I give no weight at all to various research which the father adduces in his affidavit evidence about NAPLAN, HSC success and otherwise and results for different schools under consideration. Those are statistics and of course it is the individual child whom I am required to consider in this case. The father tells me that X likes music. The mother agrees with that and tells me the instruments he plays and says that whilst it is not his number one priority or interest, it is something which he has enjoyed and continues to enjoy.
The father makes an observation about electives at the various schools and as I understand his case, it is critical because he perceives the (omitted) College perhaps does not offer as many electives or educational facilities as the public schools. I make no finding about that. In the description of the curriculum annexed to the mother’s affidavit, there seems to me to be a wide opportunity for a number of subjects and electives.
The father says that he doesn’t want X educated into believing there is something wrong with homosexuality and people who live in de facto relationships. Part of the father’s case as I perceived it, was that those matters did not necessarily receive support at the (omitted) School and could be criticised. The evidence does not enable me to make a finding in that respect.
The reality nowadays is that people do live in de facto relationships and there are homosexuals. One would like to think that a school would make children aware of those facets of modern society and particularly with the current press if you like, that same-sex relationships should be enabled to be celebrated by marriage. That is another issue. But the thrust of what I am saying is that they are not matters which can be hidden under the carpet nowadays. As I say hopefully they are addressed by schools.
The father wants X to grow up to be tolerant and accepting of people having different viewpoints and different values. That obviously is a commendable virtue as a parent and I am satisfied on the evidence before me that the mother likewise takes the same view about exposing X to different viewpoints and beliefs.
The father asserts that if X goes to (omitted) School he will be educated into a mono-culture of which he does not approve. I do not accept that submission, if it is meant to be a submission. If it is the father’s belief, there is no evidence to support his contention that that is the likely outcome.
The father refers to X thinking it would be fun to attend the same school as A, which emerges from the child dispute conference report and the father believes that X does not have an accurate idea of what it would mean to go to (omitted) School and says that X has said to him:
“It’s not a very religious school.”
“Some of the teachers aren’t even (religion omitted).”
“You can opt out of religious classes.”
I make no finding about the veracity of the statements attributed to X or whether they are the consequence of some influence by one parent or the other or someone outside the respective households.
The father asserts that X is not aware of the extent to which the (religion omitted) belief system dominates the education system and the whole culture of the school, and he believes that attending that school will create personal conflicts within X. Again, that is something about which I cannot make any finding. The evidence does not support that.
Ultimately, whether he goes to (omitted) High School which would be against the mother’s wishes or (omitted) School which would be against the father’s wishes, it is for both parents to support the decision that I make, as difficult as it may be for either of them depending upon the outcome, because X needs continuing support from both his parents for reasons to which I will refer.

It is not necessary for me to consider the father’s views about (omitted) School. That is not a likely outcome on the material presently before me. The father gives detailed evidence of the travel times and distances for each of the four schools. That has no significance in my view. They are all within the (omitted) if I can call it that. There is no difficulty in relation to distance or time or facility of transport.
The father asserts that none of the schools are affiliated with a religion – that is the (omitted) School and (omitted) School – which has views compatible with his identity as a young Aboriginal man and as a part of the Aboriginal community. He believes it would undermine his identity. There is no evidence to support that contention and there is no possibility of my making any finding on the evidence presently before me that that is a likely outcome.
The father raises the issue of bullying. It seems that X has been exposed to bullying at least at one of his previous schools and the father takes the view that bullying is also likely to be present at (omitted) School. I make no finding in respect of that. It is unfortunate that nowadays bullying is present at many schools about which I made an observation yesterday and that schools are now required whether they are private or public, to put into place measures which assist – or first of all, prevent bullying but if bullying takes place, assist both those bullied and those bullying.

The mother’s case

The mother’s case is that X is very involved in the (omitted) Aboriginal community and she sets out a number of matters in support of that contention which are also identified by the father.
There is no doubt in my view and I find on the evidence, that these parents are very well aware of the importance of X continuing to be familiar with and educated about his aboriginal culture and heritage, but more importantly that it be continued for him, fostered and encouraged and put into place. So not only in theory, but also in practice. And I am satisfied that whatever the outcome of this case that will be continued by both parents.
The mother’s view clearly is that (omitted) School offers a number of advantages. She relies upon her stepbrother – sorry, X’s stepbrother, A, being a pupil at that school albeit a year ahead. She also relies upon X’s wishes as given to the family consultant, Ms R and I will quote the passage which appears on page 2 when Ms R interviewed X:
“The issue of X commencing high school next year was mentioned and the two schools mentioned by the mother and the father were raised. The family consultant mentioned the (religion omitted) school and she understood his stepbrother went to that school. X said:
Well, I can’t go to that school obviously because mum an dad disagree.
When asked what they disagree upon he said:
Dad doesn’t believe in God.
The family consultant asked X if it were up to him which school he would like to attend. He said:
It would be fun being with A –
stepbrother –
I would like to go there. I think it would be great for education.”
That is not determinative of the outcome of these proceedings. I don’t know the basis upon which he expresses a wish to go there, apart from his obvious connection with his stepbrother and I don’t know the basis upon which he thinks it would be great for his education. And, of course, that interview took place at a time prior to my making those injunctive orders to which I referred earlier today. However, it’s not to be ignored. It will attract some weight and I will consider the weight it ought to attract shortly.
The mother asserts that the father does not have X’s best interests at heart and that his opposition is based more on his own beliefs and fears. I make no finding in relation to that. It is an assertion by the mother which is not supported by evidence upon which I can make that finding.
The mother talks about bullying at (omitted) Public School when he was at that school in 2010 and gives an example that he can be teased because he has large lips. That resulted in the parents agreeing subsequently to X going to (omitted) Public School. The mother describes his activities: plays in the school band; he is involved in the (omitted) and (omitted) club and has delivered or been involved in certain Aboriginal celebrations including welcome to country, NAIDOC celebrations and special assembly.
The mother refers to some isolated instances of bullying at (omitted) Public School where he currently is a pupil and what was done about that. The mother describes X as an extremely sensitive child and that his confidence, enjoyment and participation in school are deeply affected by negative interactions with his peers.
The mother gives evidence of the attempts she made to have discussions with the father earlier this year about High School enrolment and the upshot of that was the mother signing the form for X to attend (omitted) High School. It is significant in my opinion that the mother attaches to her affidavit a letter from Mr G, who is the principal of the (omitted) School. She says that the school is supportive of its Aboriginal students and it is seven percent Aboriginal. It is clear that there are some Aboriginal students at the school; both parents concede that. I do not know the extent to which those pupils at the school are actively involved in their Aboriginal culture and upbringing. The father says they are not. The mother does not give any evidence about it.
The school I am satisfied has a draft program which the mother annexes to her affidavit on Aboriginal education yet to be approved and not yet in place. There is a draft teaching statement on Aboriginal education annexure E to the mother’s affidavit. But I find the letter from Mr G annexure F to the mother’s affidavit to be significant. He clearly sets out a number of matters about which there was considerable submission yesterday in relation to the concerns which the father has and I am satisfied on the letter from Mr G that although it is clearly a (religion omitted) school, as Mr G says, and I quote:
“Underpinned by a (religion omitted) worldview. We have an open enrolment policy, with some 25 percent of our students coming from families with no particular religious affiliation. We’re strongly committed to accepting, respecting, and valuing our students’ cultural heritage, belief, and family circumstances. And whilst there is no reason why X cannot flourish in our school, I’m aware that any situation which must be resolved by the courts will leave residual concerns for parents and caregivers to work through. We’re committed to assisting the family through that process.”
It is clear also from Mr G’s letter that he sees his role as a Principal to support students as they discover and explore their cultural heritage, whether Aboriginal or of other heritage.
Insofar as religious views and the statement of faith with which the statement took issue, outlines the biblical position the school as a community holds, Mr G makes a valid observation that it is not unusual for parents to have differing views and that the school simply asks parents and students to hold mutual respect for the religious views expressed through the statement of faith.
I am satisfied on that evidence it is not a case where if X goes to the (omitted) School that his aboriginality and its belief will be denied to him or that he will be put into a position where he is – I think the father used the word “indoctrinated” or “inculcated” with the (religion omitted) faith.
Annexure G to the mother’s affidavit is the (omitted) School summary of inclusion at the Australian Indigenous Culture in stages 4 and 5, history and geography as taught in the school. It is clear from that document and it would seem to be related to the whole of the period of secondary education from year 7 to year 12 and there is reference to, for example years 9 and 10, that the culture of Australia’s Indigenous people and the difficulties that culture has faced at various times as this country has been developed, is recognised and taught and addressed.
I do not propose to read the whole of that document, but I am satisfied that it sets out a number of matters which would be pertinent to X given the father’s opposition. One small part that I will quote which appears at about point 7:
“Curriculum there, in relation to history of government policies, is even greater emphasis on the Aboriginal perspectives and recognition of the impact of European society on these people. The students are guided to be able to discern the events through the eyes of many cultural groups and evaluate, within a historical context, decisions that were made and enacted on, and the resulting impacts on each group. We look at the injustices and how these are now being address: reconciliation and Bridging the Gap are both key areas.”
The mother refers to a number of other facilities available at the (omitted) School and in particular, science, maths and computers are three areas of interest for X. The father shares that view and the mother gives evidence about the number of matters that he has participated in in those arenas.
The mother annexes to her affidavit annexure H, the curriculum for the school and the father I recall at one stage I think it was, was concerned about the availability of science at the school. That clearly appears as a subject in years 7-10 and 9-10 and forms of science in the form of chemistry and physics in years 11 and 12, together with biology.
So doing the best I can, it seems that the curriculum as to subjects offered at (omitted) School is comprehensive. The evidence does not enable me to identify those areas which are different from (omitted) High School or whether one is better than the other in that sense.
The mother takes the view that she believes that X would benefit academically, socially and emotionally from attending (omitted) School and she relies upon her experience this year with A and her observations in relation to him. The mother identifies a friend of X an Aboriginal friend, B who will also be going to (omitted) School.
The mother also gives some statistics about the school to which I attach no weight. The mother gives evidence about (omitted) School and it is not necessary for me to consider that, but I note what she has said.

The relevant law

Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

It seems to me that there is a considerable benefit to X in being able to continue to have a meaningful relationship with both of his parents. That will occur irrespective of my view of whichever secondary school he attends.
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The issue of bullying – it is clearly a matter about which he needs some protection and I am satisfied that both parents are well aware of the need to protect him from the risk of being exposed to bullying whichever school he attends and will ensure that the school is made aware of any instance in which X may complain. And each – when he spends time with each of them, be able to assist him with methods of dealing with bullying.
(3) Additional considerations are:
(a) 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;
There are some views that he has expressed as I have said. At one stage he was in favour of attending (omitted) High School, in more recent times (omitted) High School and various other things which he has told his father to which I have referred. What he has said and what he told Ms R – and what he has said to various people is not determinative. He obviously has experienced a bit of turmoil with his parents and the statements from Ms R in the child dispute conference memorandum of 14 June are indicative of the troubled state in which he finds himself as to the relationship between his parents.
Ms R found X to be a sensitive, thoughtful and well-mannered child. It is likely that he is very intelligent. It is likely that he is very well-equipped to embark upon a secondary education at whichever school I decide he should attend. The fact that he was enrolled in the possibility of the high achiever’s class at (omitted) High School is also indicative of his likely high intelligence. What he said to Ms R was that his parents no longer get along and he is very disappointed about that because there was a time when they could have a cup of tea together and it was really nice. Now they can barely look at each other.
And when asked why he thought that was the case he said, “Well, Dad doesn’t like Mr T” – the mother’s partner, “because Mr T believes in everything.” X told Ms R he can see by the way the parents interact that they don’t like each other. He said, “I can see by their body language and also the things they say.” He was of the view that the father is very angry at the mother and is often aggressive. X then said “There’s a debate between them about me that worries me. It’s something they can’t agree on and it concerns me.” And he goes on to deal with another matter which is not pertinent to today’s decision. When he was asked about how he enjoys the current spending time arrangements, that is, the arrangement which I have outlined at the beginning of the judgment, he said, “Yes, it’s quite good.”
And he told Ms R, “I get to see everyone. I see my brother and sister and I get a bit more time with Dad. It’s enough time away from Mum, but not too much.” And he was then asked by Ms R about his school to which I have referred. And the only thing that he would like to change he told Ms R, was for his parents to get along like they used to. But then he said, “Even with the help of professionals, I don’t think it’s possible.”
Now, whatever the outcome of today, both parents need to leave here thinking about what that really means for him. For a child to say, at his age, that the dearest wish, in effect, in his life is for his parents to get along but he has no confidence they can, is an indictment against both about their responsibilities as parents.
I do not say that lightly. I have chosen those words carefully because the parents need to think about what that means for him. He is their only child. And of course the issue of the school would not have brought him to any better understanding that perhaps his parents’ relationship is going to improve or hope that it is going to improve.
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
I am satisfied that both parents have much to offer him and that it is a close and loving relationship. And the nature of that relationship is for him with his parents as I’ve just described one of tension.
If it is permitted to continue there is a real risk of X finding himself emotionally troubled and disadvantaged as he grows up. It is the parent’s responsibility to avoid that occurring.
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
This has no application.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
Irrespective of which school he goes to is not going to result in any change in the relationship he has with each of his parents or members of extended families.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
This has no application.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
I have referred to practical difficulties earlier in these reasons for judgment.
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
I’m satisfied that whichever school he attends, both parents will be able to continue to provide as they do now for his physical needs and his emotional and intellectual needs, subject to one proviso to which I will refer shortly.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
Clearly, X is a sensitive as I have said, thoughtful, well-mannered child. He is likely to be very intelligent. He is articulate and both parents to their credit have encouraged and fostered his involvement in a number of diverse activities both cultural, artistic, musical, practical, engineering and in the wider field outside his home.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This sub section is of particular relevance in this matter.
Section 60CC(6) is in these terms:
For the purposes of paragraph (3)(h), an Aboriginal child or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right (a) to maintain a connection with that culture and (b) to have the support, opportunity and encouragement necessary (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views and (ii) to develop a positive appreciation of that culture.
I am satisfied on the whole of the evidence before me that both parents have done that to date and will continue to do so in respect of the school he attends.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
It would be churlish for me to criticise either parent for not having been able to agree about the present issue and I do not propose to do so, but it is disappointing that when the parents share parental responsibility, they have not been able to reach an agreement and that has affected X. He is well aware of the dispute currently existing between them.
The remaining subsections of section 60CC(3) – that is, (j), (k) – have no application before me. Subsection (l) – clearly, it is preferable to make an order which is least likely to lead to the institution of any further proceedings, but I will do the best I can in that respect. Subsection (m) – there is none before me.

Conclusion

The matters concerning the respective qualities of the school or proposed schools are put before me by way of the opinions of the parents. I make no finding as to which school offers the best academic facilities and I do not make any assessment of the relevant merits of each school. Put very simply, the evidence is not before me. In any event, even if it were it would require a deal of evidence from experts in the educational field.

The father’s case is that the (religion omitted) culture at the (omitted) School will deny X not only an opportunity to continue to foster and develop his Aboriginal identity and culture, but actually and actively undermine it and cause X confusion.
Those beliefs by the father and his assertions in that respect are not supported by the evidence. It is a speculative view which the father has adopted and is no more than an opinion.
X will remain spending time with both his parents and both his parents will continue to have a considerable influence upon his education with Aboriginal identity and culture, attendance at those events and the various other things which he has enjoyed thus far.
The evidence does not support any conclusion, for the reasons which I have given earlier in relation to the evidence adduced by the mother from the school, (omitted) School, that his Aboriginal identity will be ignored or subsumed to a (religion omitted) culture.
I am satisfied on the evidence before me that the school is well aware of those issues and that X will not necessarily be required to adopt the various (religion omitted) approaches about which the father has some concern.
It is of concern however that in the mother’s affidavit – and this is annexure C and were some email exchanges which took place between the mother and the father, part of the father’s email on 3 April to the mother, which related in part to bullying, also raised the issue of the schools and the inability for them to reach an agreement at that time. The father says this in part in the email, and I quote:
“The private school system is not good for the students and not good for society. They create students who can’t think for themselves, who are spoonfed the curriculum, so as to build the school’s reputation with higher grades. X needs more self-discipline and to become more self-reliant to succeed in life. He won’t get that from a private school. Private schools are elitist and lack diversity. Students are led to believe they are superior to those in the public schools. I don’t want X to become like that or to mix with children and parents like that. What’s worse, all of the private schools in this area are religious. You know how I feel about the negative impact of religion on individuals in society. You used to have similar views and for this reason we both agreed that X would not attend scripture.”
The father does not resile from that opinion in his case. He does not say, “I no longer hold that view” and I am left with the impression – and whilst respecting the father’s right to hold that view, and it is a view which, clearly, he can hold, that does not necessarily mean that that is the ultimate outcome for X by attending a private school.
Consequently, whilst I respect the father’s view and his freedom to make that statement, I do not make any finding that it is a likely outcome for X by attending any of the proposed schools and in particular (omitted) School.
Insofar as fees are concerned, which has troubled both parents, the mother is able to pay the school fees at (omitted) School and I propose to make an order that she do so, so as to avoid the need for the parents to come back and as the father rightly says if there was an issue about the school fees that may make it difficult and cause some embarrassment to X. The mother is and will remain X’s primary carer. She has the responsibility for his day-to-day activities, including attending school, his homework and the like and that will continue after the end of the current proceedings.
The father says that there are limited subjects and opportunity at the (omitted) School. That seems not to be the case on the face of it, for the reasons that I have given. It is clear that the father’s opposition is based on his belief, to which I have referred, but that does not determine the outcome for X.
Insofar as the issues which I identified earlier on are concerned – firstly, at which school is X most likely to benefit: I am not able to determine that, but it seems to me that he would have good prospects at both the primary choice schools which are proposed.
Second, to what extent, if at all, should the issue of X’s aboriginality be considered in determining the school he attends? It is relevant, but it is not determinative. X remains an Aboriginal young man, irrespective of the school he goes to.
The third issue, to what extent, if at all, should the issue of facilitation of Aboriginal culture and beliefs at a school determine the school X attends? I find this is important and find that both schools will foster and facilitate. Whilst it is clear on the father’s evidence (omitted) High School may be more attuned because of the number of students, which are greater than the (omitted) College, I find on the balance of probabilities that the facilitation of Aboriginal culture is not determinative and that X will not be disadvantaged at (omitted) School.
It is a finely balanced argument which is put before me, but, on balance, I find it is in X’s best interest to attend the (omitted) College for the reasons that that is the most practical school for him to attend and that is really what it comes down to at the end of the day. The mother, as I have said, remains the primary carer. That is not going to change. It is she who has the greater responsibility for his day-to-day attendance at school and all that relates to it.
I find on the whole of the evidence that X's Aboriginality will not be disadvantaged at the (omitted) College.
His father will, because of his desire and ability to foster, particularly, X’s awareness of his historical culture and all that flows from that, assist X if there is any conflict for him as to any matters which he is taught at the (omitted) College, as opposed to any other school. I find the appropriate measures can be put into place for that to occur and I am hopeful that neither parent, as a consequence of my decision, will perceive this to be a victory or a loss. It is not and it would be a mistake for each parent to leave here thinking that one has lost or one has gained a victory. They have not.
What these parents need to do in X’s best interests is put this issue behind them now, and I am hoping that they can, and focus on improving their relationship with each, which will be the greatest gift you can both give X, bearing in the matters he told Ms R in very clear terms as recently as August this year, I think it was – June this year. Those are my reasons.

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Judge Coakes

Date: 8 April 2014

[2013] FCCA 2414

26 November 2013

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