SMITH and BROOKES

[2019] FCWA 257

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: SMITH and BROOKES [2019] FCWA 257

CORAM: DUNCANSON J

HEARD: 25, 26, 27 NOVEMBER 2019

DELIVERED : Ex tempore

FILE NO/S: PTW 2354 of 2013

BETWEEN: MS SMITH

Applicant

AND

MR BROOKES

Respondent

Catchwords:

CHILDREN - where it is in the best interests of a child to attend and board at a private school - where orders are made for the acceptance of the bursary offered

Legislation:

Family Law Act 1975 (Cth) s 4, s 66CA, s 60CC, s 61DA

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr R Klimek
Respondent	:	Ms T Farmer

Solicitors:

Applicant	:	Klimek & Wijay
Respondent	:	Law Firm A

Case(s) referred to in decision(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Smith and Brookes has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

INTRODUCTION

1These proceedings concern the children [Child A] who is 12 years of age and [Child B] who is 10 years of age. Currently the children live in [Town A] with the mother, [Ms Smith] and the father, [Mr Brookes], in a week about arrangement.

2The substantive issue for determination is whether the children should live with the mother, who seeks to relocate them to [Town B] or whether the children should live with the father, who seeks to relocate [Interstate].

3A pressing issue for determination concerns Child A's schooling. Child A has been offered a bursary to board at [School A] in Perth. The father has accepted the offer to which the mother is opposed. A decision in that respect is required by School A.

THE PARTIES' PROPOSALS

4The mother proposes that in the event she is permitted to relocate the children to Town B, Child A will be enrolled in [School B]. She says other families from Town A have moved to Town B, including those with children who are friends of Child A and Child B.

5The mother is opposed to Child A's attendance at School A for two reasons:

•she is of the view that Child A is not emotionally ready to be away from her and her family for extended periods of time; and

•the mother is concerned about her ability to contribute to the cost of Child A's attendance at School A.

6The father did not provide the mother with correspondence regarding the bursary and she did not sign the acceptance.

7The father proposes that Child A attend School A.

8The father says Child A is academically talented and will excel at School A. He applied for the bursary, Child A participated in an interview and the application was successful.

9The father acknowledged there would be an adjustment for Child A to attend boarding school, but she wishes to do so. He considers the education at School A to be superior to that of School B.

FAMILY BACKGROUND AND SHORT RELEVANT HISTORY

10The father was born [in] 1969 in Western Australia. He is 50 years of age. The mother was born [in] 1984 in [State A]. She is 35 years of age.

11The parties commenced cohabitation around August 2005. They were married [in] 2007.

12Child A was born [in] 2007. Child B was born [in] 2009.

13The mother is in a relationship with [Mr R]. The father is in a relationship with [Ms L].

14Currently both children attend school in Town A. There is inevitably to be a change of school for both children as the parties will not continue to reside in Town A.

15In December 2018, Child A was awarded Dux of the primary school.

16On 1 July 2019, School A confirmed an offer of a bursary for Child A for Year 8, entry 2020. The bursary covers 50% of the academic tuition fees and 50% of the board fees for the remainder of her schooling. The bursary also covered the family confirming fee. The father accepted the offer of the bursary. The mother is opposed to its acceptance.

17The father deposed:

The bursary at [School A] will cover:

50% of the tuition and boarding fees for the 5 years left of [Child A]'s secondary education.

The Family Confirming Fee (of $5,793 which was waived and covered by the school).

In 2019, the fees were/are:

Tuition - $24,121

Boarding - $24,994

Total: $49,115

Divided between 2, as the bursary covers half - $24,557.50. This means that [Ms Smith] and I are required to pay half of $24,557.50 each which equates to $12,278.75 or $279.06 per week on a 44 week payment plan that the school offers …

18On 11 July 2019 the parties and the children attended a child inclusive conference with [Family Consultant P].

THE LAW

19These proceedings are determined under Part VII of the Family Law Act 1975 (Cth) ("the Act"). In reaching my decision I will be guided by the objects of that Part and the principles underlying those objects as set out in s 60B.

20In deciding whether to make a particular parenting order, s 60CA directs the Court to regard the best interests of the child as the paramount consideration. Section 60CC sets out those matters which the Court must consider in determining what is in the child's best interests being the primary and additional considerations.

Parental Responsibility

21Pursuant to s 61DA of the Act, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the child's best interests for the parents to have equal shared parental responsibility for the child.

22Equal shared parental responsibility imposes an obligation upon them to consult as to major long-term issues regarding the child and to make a genuine effort to come to a joint decision about such an issue. Major long-term issues are specifically defined in the Act at s 4 as issues about the care, welfare and development of a child of a long-term nature.

23The order to be made regarding Child A's schooling is a parenting order.

24It is necessary for me to consider the matters set out in s 60CC of the Act to the extent they are relevant to this issue which I require to determine.

25The children have a meaningful relationship with both of their parents.

26It is not in dispute that Child A wishes to attend School A and the mother acknowledged this.

27Child A informed the family consultant that she would like to attend boarding school at School A in 2020. At that time her best friend was also going to attend, although that is not now the case.

28Child A also informed the family consultant that her ideal living arrangement would be to attend boarding school at School A during the 2020 school term and spend equal time with her parents during the school holidays. She would also enjoy spending time with relatives who live in Perth if she was at boarding school there. I place weight on Child A's expressed views.

29The mother expressed her concern about Child A's emotional maturity to the family consultant. The father considers Child A is emotionally ready and is being held back if she does not attend School A in 2020.

30The family consultant reported that Child A was strong in her position that her priority would be to attend boarding school at School A. Further, the family consultant reported that Child A did not present with any obvious indications she may not be able to manage boarding school, although that observation was made after one hour in her company.

31The children have a close and loving relationship with both of their parents and other members of their families.

32The mother was not given an opportunity to fully participate in the application process to School A for the bursary. She had however previously cooperated with the father in submitting applications for Gifted and Talented programs at schools in Perth.

33A significant consideration is the likely effect of any changes in School A's circumstances including the likely effect upon her of any separation from either of her parents, her [sibling] and other family members.

34The children currently live in a week about arrangement with their parents. If Child A attends School A she will attend boarding school during the school term. This will involve a separation from both of her parents and Child B. However, Child A keenly wishes to attend School A and in these circumstances it is likely she will adjust to this separation.

35Child A will have the assistance and support of the staff at school, but also family members living in Perth, including her paternal aunt, [Ms B].

36Child A has self-harmed on two occasions which occurred in March and June 2019. On the first occasion she cut herself with [stationery equipment] and on the second occasion with [another type of] stationery equipment. The injuries were not serious. The father did not permit Child A to receive counselling at school because the school's records would be retained and passed on to future schools. The mother took Child A to [a mental health service] in Town B. Child A had one meeting with a counsellor. The mother said she was deemed low risk and did not require any further assistance.

37The mother was very concerned that an incident such as this might occur while Child A was away from her, although she acknowledged that after the second incident Child A "was fine". The mother also acknowledged Child A would be disappointed if she did not attend School A and in evidence said she adapts well where ever she goes.

38The father said he discussed the incidents of self-harming with Child A and it was a weight off her mind to discuss them with him. After attending [the] mental health service, Child A told him she was fine. The father's position is that Child A has dealt with these incidents. He said she is happy she received the bursary and there would be no difficulty in her separating from Child B.

39Recently Child A was involved in an altercation with another student at school, an issue which is being resolved. Notwithstanding this, the evidence of both parties as to Child A's current wellbeing is positive.

40Recently Child A toured School A with Ms B, who described her as extremely excited about her attendance and eager to get there. Ms L also confirmed that Child A really wishes to attend and has talked to her about activities, pastoral care and friends at the school.

41Having regard to Child A's strong wish to attend School A, I consider that it is more likely than not that she will adjust to the change in her circumstances and a separation from those close to her.

42A practical difficulty in relation to Child A's attendance at School A arises by reason of the cost. The father deposes that the likely costs to each of the parties if they were to share the balance of the tuition and boarding fees after payment of the bursary would be just over $12,000 per annum each, or $279 on a 44 week payment plan. The mother is concerned she cannot afford that contribution. She was referred to her financial statement in which there would appear to be a surplus of income over expenditure each week. I am uncertain as to her understanding of her completion of that form, but I accept her evidence that she has no savings at the end of each week and no accumulated savings.

43The father will receive assistance from Ms B, Ms L and his mother in relation to the children's education costs. The father said in evidence that if the mother is unwilling or unable to contribute to the costs of School A, he, with the assistance of his family will meet those costs.

44Ms B confirmed that funds have been set up for the education costs of both [children]. Although she was somewhat hesitant as to the extent of her exposure, she confirmed she will assist financially.

45Overall I am satisfied that there is sufficient financial support from the paternal family to meet the costs of Child A's attendance at School A in the event the mother is unwilling or unable to contribute.

46In these circumstances the likely costs are not an impediment to Child A's attendance.

47As to Child A's maturity, the family consultant described her as a confident, friendly and intelligent young lady who spoke energetically, eagerly sharing her memories and opinions. The family consultant reported she possessed a good sense of humour and seemed to enjoy narrating her stories. Child A fully participated in the process and her responses appeared age appropriate.

CONCLUSIONS

Parental responsibility

48I intend to make an order that the parties have equal shared parental responsibility for the children and I am satisfied that such an order is in the children's best interests. The parties consent to that order.

49Both parties want the best for the children. They are able to communicate and are willing to do so with each other notwithstanding recent disagreement over the relocation. Both parties are devoted parents and it would be appropriate that both have input into important decisions regarding the children's welfare.

Schooling

50Having considered the evidence in the context of the primary and additional considerations and weighed and balanced my findings I have come to the conclusion that Child A should attend School A.

51Subject to hearing from counsel as to the form of the order, I shall order that the father and/or the mother do all things necessary to enrol Child A in School A and that she board there during the school term. I do this for the following reasons.

52Child A strongly desires to attend School A in 2020 and is excited about doing so. Child A is confident, friendly and intelligent. Attendance at School A accords with her wishes and in those circumstances she is likely to enjoy being there and likely to adjust to the change in her circumstances.

53I have taken into account the mother's concern that Child A is not emotionally ready to be separated from her and that she has self-harmed on two occasions. Child A attended counselling at [a mental health service] and is doing well.

54If needed Child A will have support at School A. Child A also has support from members of her extended family, including Ms B who lives in Perth and will be able to assist her readily if necessary.

55The opportunities presented by School A would appear to be superior to those in Town B or Interstate. She is clearly an intelligent and talented student and the bursary is an opportunity for her to achieve her potential.

56The father strongly believes Child A will excel at School A and she will adjust to the change in her circumstances. His concern is that if she is not permitted to attend she may resent her mother's resistance to her attendance.

57The costs of School A are manageable having regard to evidence as to the financial assistance to be provided by members of the father's family.

58I consider the offer from School A is an opportunity for Child A that is not to be missed. I am satisfied an order that she be permitted to attend there in 2020 is in her best interests.

THE ORDERS

59After hearing from counsel, I made the following orders:

1By consent, the parties have equal shared parental responsibility for the children, [CHILD A], born [in] 2007 and [CHILD B], born [in] 2009.

2The child [Child A] be permitted to attend [School A] for the academic year commencing 2020 and thereafter.

3The Respondent, [MR BROOKES] and/or the Applicant, [MS SMITH] do all things necessary to accept the offer of the Bursary for the [Child A] for Year 8 entry 2020.

4Within 10 days, the parties shall file a minute setting out the parenting orders which may be made by consent.

5The parties have permission to provide a copy of these orders to [School A].

6Decision reserved.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

RM
Associate

5 DECEMBER 2019