Spencer and Spencer - [2010] FMCAfam 640

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SPENCER & SPENCER

[2010] FMCAfam 640

FAMILY LAW – Parenting issues – mother seeks to maintain home schooling of children – father seeks to have children attend mainstream school.

Family Law Act 1975, ss.60CA, 60CC

Applicant:

MR SPENCER

Respondent:

MS SPENCER

File Number:

BRC 6985 of 2009

Judgment of:

Jarrett FM

Hearing date:

25 May 2010

Date of Last Submission:

25 May 2010

Delivered at:

Brisbane

Delivered on:

18 June 2010

REPRESENTATION

Counsel for the Applicant:

Mr Jordan

Solicitors for the Applicant:

Hall Payne Lawyers

Counsel for the Respondent:

Mr Toweel

Solicitors for the Respondent:

De Korte Lawyers

ORDERS

BY CONSENT THE COURT ORDERS:

That all previous parenting orders be discharged.
That the children of the marriage, [X] born [in] 1997 and [Y] born [in] 2001, live with the mother.
That the father and mother have equal shared parental responsibility for making decisions about the long term care, welfare and development of the children, including but not limited to:
(a)The children’s education;
(b)The children’s religious and cultural upbringing;
(c)The children’s health;
(d)Changes to the children’s living arrangement that make it significantly more difficult for the children to spend time with each parent;
That the parties consult with each other about decisions to be made in the exercising of their equal shared parental responsibility as follows:
(a)They shall inform the other parent of any decision to be made;
(b)They shall consult each other on terms they agree;
(c)They shall make a genuine effort to come to a joint decision;
(d)They shall include and consider the opinions of the children in such matters where appropriate.
That notwithstanding the provisions of Orders 3 and 4, both parties be responsible for the care, welfare and development of the children whilst in their respective care.
That the children spend time with the father as agreed between the parties, and in default of agreement:
(a)Each alternate week from Friday 3.30pm or at the conclusion of the children’s schooling until the commencement of the children’s school Tuesday morning;
(b)Every other Monday collection from 3.30pm or at the conclusion of the children’s school until the commencement of school Tuesday morning;
(c)For half of school periods with the father to provide the mother with no less than two weeks notice of his proposed date and availability;
(d)On Father’s Day from 9.00am until 5.00pm if same does not fall during a period when the children are in the care of the father;
(e)On the Father’s birthday from after school until 8.30pm if a school day or from 9.00am until 5.00pm if a non school day and not a time when the children are in the care of the father;
(f)On the children’s birthdays for two (2) hours or such other time by agreement, if same does not fall during a period when the children are in the care of the father;
(g)From 10.00am Christmas Day until 12.00pm Boxing Day each alternate year starting Christmas 2010; and from 12.00pm Christmas Eve until 10.00am Christmas Day in each alternate year starting Christmas 2011;
(h)From 12.00pm New Years Day to 12.00pm 2 January each year;
(i)Such other times as agreed between the parties.
That the father’s time with the children be suspended:
(a)On Mother’s Day from 9.00am until 5.00pm;
(b)On the Mother’s birthday from after school until 8.30pm if a school day or from 9.00am until 5.00pm if a non school day and if the children are not in the care of the mother.
That each party be at liberty to telephone the children whilst they are in the care of the other parent at all reasonable times and each of the parties will facilitate such telephone communication at all reasonable times when requested by the children.
That neither party consume alcohol above the legal driving limit when the children are in their respective care.
That the parties are restrained from involving the children in communication between them including but not limited to in relation to any variation of these orders.

IT IS NOTED:

That if either child wishes to arrange activities scheduled for the same time as their time with the father pursuant to these Orders, the children discuss these changes with the mother who shall negotiate with the father by way of email. Any changes in arrangements proposed are to be finalized no later than Wednesday before the Friday collection.

IT IS FURTHER ORDERED BY THE COURT:

That the children [X] born [in] 1997 and [Y] born [in] 2001 attend [L] School commencing in Term 3, 2010.
That the child [X] shall be enrolled in Grade 7 and the child [Y] shall be enrolled in Grade 4.
That the children spend half of the Queensland gazetted school holidays with each parent.
That Ms L be engaged to explain these Orders to the children in the presence of the parents if Ms L considers that appropriate, on a date and time to be advised and that the parent’s be restrained from discussing these Orders with the children until such time after Ms L has explained the Orders to the children.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 6985 of 2009

MR SPENCER

Applicant

And

MS SPENCER

Respondent

REASONS FOR JUDGMENT

(Revised from the transcript)

Mr Spencer and Ms Spencer have two daughters, [X], who is 13 years of age and [Y], who is 9 years of age. The parties’ marital relationship broke down more than a year ago and they fell into dispute about the arrangements for the division of their property and the parenting arrangements for their children. These proceedings were commenced by Mr Spencer in August, 2009.
Happily, the parties have been able to agree about the division of their property and in large measure they have also agreed about the arrangements for the parenting of their children. At the commencement of this trial I was handed a set of consent orders which were agreed between the parties. They provide for where the children are to live and how much time they are to spend with each parent.
By those consent orders, essentially the children will live with the mother and spend time with their father each alternate week, from after school Friday to before school on the Tuesday. There are some variations to that from time to time, and there are special arrangements for special days like Father’s Day, Mother’s Day, and the children’s birthdays. By and large these children will be spending substantial and significant time with their father.
These reasons for judgment and this decision relates to a discrete issue concerning the education of [X] and [Y]. Put shortly, the children have been home schooled by Ms Spencer for a considerable period of time now and she wishes for that to continue. Mr Spencer wishes for the children to attend mainstream schooling and for the home schooling to come to an end. There are some other issues consequential upon the main issue that I have just described that may need to be determined, depending upon how the main issue is determined.
The evidence before me reveals that [X] has attended mainstream schooling in the past. She was home schooled by Ms Spencer for pre-school and grade 1, and thereafter she attended mainstream schooling for grades 2 and 3. Her experience in grade 2 was a good one. According to the evidence she had a good teacher and she did well. Her experience in grade 3 was not quite so good. She had a number of different teachers, particularly for maths and English, and apparently she struggled. It is Ms Spencer’s case, and it is not seriously disputed by Mr Spencer, that the school was non-responsive to [X]’s particular learning needs. Consequently, the parties agreed that [X] should return to home schooling with Ms Spencer. [Y] has always been home schooled by Ms Spencer. She has never had the experience of mainstream schooling.
[X] has been diagnosed as dyslexic by an organisation called [D] Pty Ltd. The qualifications of those making that diagnosis are not in evidence. The diagnosis is contained in a report dated 30 January, 2004: see exhibit TS2 to Ms Spencer’s affidavit filed on 28 August, 2009. Although I have considerable misgivings about the terms of that report, it was not the subject of any challenge by Mr Spencer and there seems to be acceptance by him that [X] has dyslexia. He describes himself as suffering from that condition.
Although Mr and Ms Spencer agreed about the home schooling for [X] and subsequently [Y], they also agreed that they would “always re-evaluate” the home schooling: see Ms Spencer’s affidavit, filed

28 August, 2009 at paragraph 18. Mr Spencer has now re-evaluated the home schooling and does not think that it is serving either [Y] or [X] well.
Both children have been registered for home education pursuant to the Education (General Provisions) Act 2006 (Qld) as and from 30 June, 2009. To secure that registration Ms Spencer needed to propose an education program for each child. The programs are in evidence: see exhibit TS4 to Ms Spencer’s affidavit filed on 28 August, 2009.
The material describes that the children’s school week consists of lessons at home with their mother on Mondays, Wednesdays, and parts of Friday. On Tuesdays they attend a group called [C], during which the children interact with other families who are also home schooling their children. There they have some formal lessons in a group setting but also then engage in other activities such as excursions, sport, and other activities.
On Thursdays the children spend time with their grandparents and friends. During the course of her cross-examination, the mother tried to paint this as some sort of formal period with their grandparents wherein they did school work, but her affidavit material, particularly that of 28 August, 2009 paints a different picture. I prefer her written testimony to her oral.
In 2009 Ms Spencer declined to have [X] or [Y] participate in the Years 3, 5, and 7 diagnostic testing conducted by the Education Department (Qld), she says, for a number of a reasons. In her affidavit, filed on 28 August, 2009 she says that the reasons were firstly, that [X] does not perform well under “testing circumstances, so it does not provide accurate results”, and secondly, both girls were “stressed enough” with their father leaving the family for them to be placed under any other stress at that time. Both reasons appear to me to be curious. Apart from grades 2 and 3, it is not clear from the evidence that [X] has ever been subjected to any formal testing procedures, and so how there could be a conclusion that she does not perform well under such circumstances is not clear.
This case does not turn on the creditworthiness of the parties. It is worth remarking, though, that Ms Spencer’s case in a number of respects suggested that there were credit issues upon which it was necessary to test the father, Mr Spencer. But, as I say, none of this turns on what either of the parties has to say about the matter, and, in fact, the testing of Mr Spencer in cross-examination in relation to issues said to go to his credit: for example, his relationship with some other person, the circumstances in which the parties separated, and money that he might have spent on gifts for some other person; all demonstrate that the impression that I formed from reading

Ms Spencer’s affidavit material was probably correct. That is that she is still dealing with the separation of Mr Spencer from her. Her reference throughout the material to the children being stressed and to her being stressed indicate that the stress continues to this day. The cross-examination of the father about those issues is also consistent with that impression. That cross-examination of Mr Spencer to which I have just referred did Ms Spencer’s case absolutely no credit at all.
This case falls to be determined according to the principles set out in the Family Law Ac 1975. Section 60CA provides that this court can only make an order which is in the best interests of these children. There are two children involved, and so the orders that suit one of the children may not suit the other of the children. The father, in the course of submissions, made it very clear that he wishes the children to be treated as a package: they were the words of his counsel. And so, if one of the children is not suitable, in the court’s view, for mainstream schooling, then, as I apprehended the submission, the other would not go.
But I am not bound by the views of the parties. The only obligation on me is to make an order which I consider is in the best interests of these children. In determining what is in the best interests of these children, I need to take into account the factors set out in section 60CC of the Family Law Act. Given the limited issues that I need to consider in this case, not all of those factors will be relevant.
This case, as I have said, will not turn on the evidence of the parties so much as it turns on the evidence of the experts involved in the case. There are four of them: the first is Ms L, a social worker who has been tasked with the responsibility of preparing what was described as a wishes report. That report is in evidence and Ms L was cross-examined on her report. There is evidence, as well, from Mr B, who is described in his own affidavit as a psychologist, but has a speciality in terms of educational development, particularly of children.
There is evidence from Ms K. She is the manager of a company known as [F]. She has qualifications in children’s education and education generally. She has provided a report in these proceedings. Finally, there is the evidence of Ms H who is one of the persons “connected” with the organisation known as [D] Pty Ltd. I could not find in the evidence any statement of Ms H’s qualifications. There is the report attached to Ms Spencer’s first affidavit which, at the foot of it, has what appears to be some qualifications in their short form after Ms H’s name, but it is not entirely clear to me what those qualifications are. There may be a Master of Education and there is a Diploma and a Certificate, the short form of which I am not familiar with. There is no other more expansive evidence that I could locate that deals with her formal qualifications.
There was some evidence from lay witnesses as well but that evidence is not particularly helpful. There is evidence from Ms S which is of no importance to the issue that I have to decide. There is evidence from Ms M, again which is of no particular relevance to the issues that I have to decide, save in one respect to which I shall refer shortly.
It is clear from the evidence of Mr B and Ms K, both of whose qualifications are well set out in their affidavits that these two children are behind in terms of their academic achievements. It is not as simple as that, though. These two children are unique and indeed it has been commented on more than one occasion in the experts’ evidence – particularly that of Ms L and that of Mr B – that [X], in particular, is unique. She has a unique combination of skills and abilities. She seems to perform very well with verbal tasks. That seems to be the evidence of Mr B, not so much the evidence of Ms K, but her evidence certainly does not gainsay that of Mr B. [X] performs in the high average range in terms of verbal abilities.
[X] has weaknesses, however, noted by Mr B in his report that relate to written materials: mathematics and English. Written English is particularly weak for her. She is in the low average range.
Similar comments can be made in respect of [Y]. The assessment for [Y], I should say, is that her general cognitive ability was in the high average range; she is clearly an intelligent girl. Her general verbal comprehension is in the high average range and her general perceptual reasoning abilities were in the average range. She had personal strengths in oral expression, something consistent with her older sister. But she had relatively weak skills in reading comprehension and spelling, something also in common with her sister.
Ms K’s report and testing seem to confirm that of Mr B, and Ms K’s opinion was that these children were behind - and I will turn to that concept shortly – in respect of their mathematical abilities and their English abilities, and in particular their written abilities.
When I say they were “behind”, a point was made by Ms Spencer with some force that the standard against which Ms K assessed the children was the standard Queensland curriculum used throughout the schools in this state. Her case is, however, that the children are not taught according to that curriculum but rather according to a curriculum that is designed by her and which meets the approval of the home education unit from the Queensland Education Department. Having secured registration of the children pursuant to the relevant Queensland legislation, it is neither here nor there that they are behind the usual Queensland curriculum. Ms Spencer’s program has been approved by the education authorities and, she says, there is nothing to suggest that these children are not performing according to it.
The curriculum itself - the detail of it - is not in evidence before me. There are the education plans to which I have earlier referred but those plans do not provide any precise details about what it is that the children are studying. There are references to particular units and particular books and the like, but that tells me nothing because the books are not in evidence. The particulars of the education being received by these children are not in evidence. The actual curriculum studied by the children was not put to either Mr B or Ms K. I am left to wonder about what exactly it is that they perform well at in terms of the curriculum they study, and what they do not perform well at in terms of the curriculum that they actually study.
During the course of submissions, Ms Spencer’s counsel suggested that this case was all about home schooling versus mainstream schooling. It is not. It is not about that. This is about arriving at a decision which is in the best interests of two children, having regard to all of the relevant facts and circumstances that attend this case. It is not intended to be any determination that one form of schooling is better than another. Indeed, it would be naïve to suggest that one size fits all, for plainly, it does not. For some children, there will be better methods of education, both within and outside of the mainstream schooling system than for others. So this decision, whatever it turns out to be, should not be seen as an endorsement or a disendorsement of one form of schooling over the other.
The matters set out in section 60CC of the Family Law Act 1975 insofar as they are relevant to this case, in my view, comprise the following factors which I will deal with as I identify them.
Neither of the primary considerations arise for serious consideration in this case. Neither party suggests that, relevant to the issues that I have to determine, it is necessary to consider the benefit to these children of them having a meaningful relationship with each of their parents or the need to protect them from physical or psychological harm by reason of being exposed to abuse, neglect or family violence.
The first of the additional considerations is very important in this case. It concerns the views expressed by both of these children, and in particular [X], and the factors such as the children’s maturity and the level of understanding that they have about the relevant issues. The weight that should be attached to their wishes is important.

These children, and in particular [X], have made some very clear statements about their wishes. In Ms L’s report, she records what the children said to her about what they wished to happen. [X] told Ms L that she thought being home-schooled was good and that she preferred being home-schooled. She was able to compare it to having attended mainstream school for grades two or three. She preferred home-schooling “because I think I learn more stuff”. She gave Ms L an example about times tables. She was acutely aware, having regard to what she said to Ms L, that she suffers from dyslexia, and that was repeated by [X] on more than one occasion.
[X] indicated to Ms L that she now felt far more comfortable and confident than she did in mainstream schooling. It is worth recalling that she was schooled at a mainstream school in grades two and three.
It is clear that from what [X] told Ms L that she had activities outside of being home-schooled, during which she mixed with other children. She undertook basketball. [X] also noted to Ms L that she had friends through the [C] group and other people that she had met through that organisation or that grouping, and through basketball.
She told Ms L that she wanted the Court to know that she wanted to keep home-schooling, and that she would try to get expelled if she was asked to go to an ordinary school because she did not want to do that. She thought that she would get left behind and she would spend the whole week doing school work just to keep up with those around her. She said that she would not be with her friends or her mum or her dad.
[Y] indicated that she did not want to attend mainstream schooling either. She was adamant about that. She says that she has plenty of friends and she spends plenty of time with those friends and with her Nanna and her Pop. She indicated that she enjoyed the [C] group on a Tuesday.
She told Ms L that the Tuesday group was important because she had friends there. She did not give Ms L any impression that she had any particular difficulties, such as low self-esteem or any concerns about her own learning capacity.
That is in contrast to [X], who on all of the evidence gives the impression that she has low self-esteem. That is Ms Spencer’s impression. When [X] was attending mainstream school she thought that she was the dumbest in grade two and three.
Ms Spencer’s affidavit material and in particular her affidavit of August 2009 spends a lot of time talking about what it is that the Ms Spencer “believes” and what she “feels” about [X], [X]’s commitment to home-schooling, how she has reacted to that, and the like.
It is difficult to place any significant weight on that type of evidence because of the way in which it is drawn. It is not drawn in a particularly probative way, and quite frankly, the feelings of parents, their beliefs and the like, are irrelevant unless the basis upon which those feelings or beliefs are based can be properly established by facts that are otherwise proved to the requisite standard. Ms Spencer’s affidavit material does not attempt to do that in any cogent way.
Ms L was cross-examined about the children’s wishes. Her reports about what the children said to her and her assessment of those views were not shaken in cross-examination.
I take into account the views expressed by both of these children. I accept that neither of them wishes to go to mainstream schooling, but it is important to see those wishes in context. It is important to see it in the context that both children have, for a considerable period of time now – [Y] for all of her academic career, and [X] for all of it except for grades two and three – not had the experience associated with a mainstream school. That is, at least in [Y]’s case, she has nothing to which she can compare her current experience.
It is also important, in my view, to understand that those wishes are expressed in the context of a dispute between these parties, a dispute which I am satisfied is still underpinned by feelings of resentment and betrayal by Ms Spencer towards Mr Spencer.
The next of the considerations under section 60CC which is important is the nature of the relationship of the children with each of the parents. That is important in this case because as Mr Jordan pointed out in his submissions, there has been a difficulty between [X] and her father in their relationship. That is fleshed out in the material. For some time [X] was reluctant to spend any time with her father.
That changed following some orders that were made earlier this year, and when that was brought to Ms L’s attention, she accepted that it signified some resilience in [X] and perhaps an ability to now move forward.
It is also important to recognise that the relationship between these children and Ms Spencer is particularly close. It must be, given that they have spent most of their time with her since separation, and more so than children who ordinarily attend mainstream schooling. They have probably spent most of their waking hours with her. It is important to record that their relationships with Ms Spencer is likely to be a very close relationship indeed.
The next most significant factor, it seems to me, that arises under section 60CC is the effect of any change in the current arrangements upon these children and in particular [X]. Ms L deals with this in her report.
Dealing firstly with [Y], Ms L takes the view – which I accept – that [Y] will probably benefit from mainstream schooling. She is behind the current Queensland curriculum as identified by the other evidence to which I have referred, and although she does not want to go, it is

Ms L’s firm opinion that if she was to enter mainstream schooling, she should do so now.
In Ms L’s opinion, there was nothing to indicate that it was not appropriate that [Y] should not enter mainstream schooling. But that is not to be taken as me suggesting that there is some onus on the mother to demonstrate that these children should remain being home-schooled. There is not. There is no onus in this case at all. It is a question of assessing the evidence.
But the evidence is that [Y] is presently behind. She is likely to cope, according to the social science evidence before me, with a move to mainstream schooling, and her wishes – based as they are on her own experience without an ability to compare it to anything else – although important is not an overwhelming factor.
Ms Spencer indicated through her counsel that [Y]’s anxiety problem identified in the report of Ms M might be a reason to suggest that [Y] would not be appropriate for mainstream schooling, but Ms L dealt with that in her cross-examination. Indeed, she thought it might be a factor which indicated that mainstream schooling was more appropriate, and that it would develop resilience and problem-solving abilities for [Y].
The effect of a change on [X] has the potential to be profound. She is older than [Y] and she has a very clear and strong view. Indeed, Ms L’s own opinion was, in her written report, that [X] should remain being home-schooled. She stuck to those guns, perhaps even more forcefully, in her cross-examination. Ultimately however, she was of view that there could be some attempt to have [X] in a mainstream schooling, if that transition was carefully managed.
Ms L laid her cards on the table, so to speak, when she said quite clearly that she had a preference from a professional point of view for mainstream schooling over home-schooling, and that her experience was that home-schooled children normally move into mainstream schooling in higher grades of primary school, so that they have assimilated by the time that they reach high school.
Nonetheless, Ms L considered that it may be too late for [X], in this case. She thought that [X] may not cope – but more to the point, would not co-operate. She also coupled with that [X]’s special needs, and as I have already remarked in the course of these reasons, passed the comment that she was a unique child.
Ms L thought that [Y]’s situation was different to that of [X]’s, and that both children could be treated differently, and indeed, as counsel for Mr Spencer pointed out during the course of his submissions, it is not unusual for children, in terms of their education, to be treated differently, particularly when younger children see their older siblings leave to go to high school. I accept that this is a slightly different situation, but nonetheless, the analogy remains.
Ms L outlined seven matters that needed to be carefully considered, or carefully managed, if there was to be an attempt for [X] to enter mainstream schooling.
They were that:
a)she needed to go to a school that was set up to assist her, given her special needs.
b)There was a need to be assured that she could psychologically assimilate into the school.
c)Both parents needed to be involved in the process.
d)There needed to be significant support available for [X] and for her parents.
e)[X] needed to engage in tutoring to do the best that could be done to have her catch up to her peers.
f)There needed to be outside support available, such as somebody like Mr B.
g)And finally, the school that she attends must not be a special school. She needs to be treated as if she was one of the students, which, indeed, she would be.
The challenge in this case, is to determine what support there would be for a change in [X]’s schooling arrangements from the mother. The issues identified by Ms L, I am satisfied, could be addressed by appropriate orders. I am satisfied by the evidence of Mr G, the principal of the [L] School, that that school could accommodate [X] and [Y]; that it would have the processes and systems in place which would provide [X] and [Y] with appropriate assessment opportunities, and that there would be individual learning programs tailored for them. The report prepared by Mr G sets out in some detail the steps that would be involved and the opportunities that are available through that school. Whilst Mr G was cross-examined, his evidence in that respect was not challenged.
It was suggested that [X] might enter grade 8 rather than grade 7 where her results suggest that she should be placed. But there is reason to be anxious about her going into grade 7 rathe than grade 8. Being older than the children in the grade around her, Ms Spencer fears that would send her a message that she was not as “smart” as those of her age. But yet, the other side of the coin is that if she was to go into a higher grade, such as grade 8, she would not be competent with the work, and her self-esteem would necessarily suffer.
I was satisfied by the evidence of Mr G, and, to some extent, the evidence of Ms L and Mr B, that the needs of the children psychologically – and in particular, [X] – could be met to assist her to assimilate into a mainstream school. Mr G’s evidence sets out the steps that his school would take to have her assimilated into the body of the school community.
There is available to these parents significant support, both within the school that is being proposed by Mr Spencer, but also outside that. The parties have accessed an assessment from [F]. The parties, and, in particular, the mother, have accessed assistance and support from dyslexia services – [D] Pty Ltd. There is significant support that the parents have demonstrated an ability to access when necessary. There is, no doubt, the opportunity for [X] to engage in tutoring, and that could be organised by the parents.
[L] School is not a special school.
The one factor in all of this that causes concern, is whether these parents would be involved and support the decision to send [X] to some mainstream school. I have no doubt Mr Spencer would support it; indeed, that is the order that he seeks, but I have considerable reservation about Ms Spencer supporting such an order. There are a number of reasons for my reservation.
The first is that I have no doubt that she takes the view that this application by Mr Spencer for this order is a means by which he is attempting to control a situation that he has had little to do with during the course of their relationship. She makes the point in her affidavit more than once that during the course of the parties’ relationship,

Mr Spencer was disinterested in the children’s education, or, at least, left it to her to organise. That does not seem to be in dispute;

Mr Spencer says as much. And now, this interest by him is likely to be seen by her as nothing more than officious meddling and a source of some resentment.
I have also referred to the other source of resentment, namely, the fact of and the circumstances in which the parties separated.
It was also suggested in cross-examination and in submission that one of the motivations for this order has something to do with child support, and that if the children are attending mainstream schooling, Ms Spencer would be able to attend to more employment – or some employment – and thereby earn an income and thereby reduce the amount of child support that Mr Spencer is liable to pay. That was suggested to be a motivation for this application.
With all of those matters lying behind this case, it is difficult to be confident that Ms Spencer would provide any real support to an order that there be mainstream schooling for these children. She would see it, in my view at least, as nothing more than the father, in this case, getting his way in circumstances where he ought not get it.
Recognising that reservation however, ultimately I am persuaded by the evidence about the progress of these children in their academic endeavours. They are behind their peers. They are in a situation where they are not being exposed to, and they do not have the opportunity to be exposed to, the things that they would otherwise be exposed to at mainstream schooling.
They do not have the opportunities available to them that they would have in respect of the curriculum at a mainstream school. They do not have the opportunity available to them now to be taught by professional teachers, somebody who is trained and skilled at delivering education. They will not have and do not have the socialisation opportunities that they would have at mainstream schooling. They do not have the role modelling that would be displayed to them by the teachers that they would have exposure to at a mainstream school. They have exposure now to a person who is everything to them – a parent, a disciplinarian, a teacher, and somebody with whom they are spending fun times as well. There is, essentially, no break.
The submissions made by Mr Jordan for the father, in that respect, when he spoke about the opportunities for these children – the opportunity to gain an OP, the opportunities that would open up for other vocational activities – are all highly persuasive. In my judgment, these children ought to be given those opportunities. That means that there ought be an order that these children attend mainstream school.
The challenge will be for these parents to manage this order, to support it and to support their children by supporting the order. An order for mainstream schooling will no doubt be seen as a source of grave disappointment for the mother, but that being so, at the end of the day, there is only one issue which ultimately governs this case, and that is the best interests of these children.
In my view those bests interests demand that they have the opportunity of mainstream schooling, and that they should commence that schooling forthwith, particularly in the case of [Y]; that is supported by the evidence. In relation to [X], it needs to be managed as I have said, but I am certain that the parents will manage it as they have heard Ms L suggest that it should be managed.
There will be an order, therefore, that commencing term 3, 2010, these children attend [L] School, with [X] attending grade 7 and [Y] attending grade 4 until otherwise their enrolment at that school in any other grade is determined by the authorities at that school. I make the order in that form because Mr G, in his affidavit, suggests that, initially, the children would be best suited to those grades, but that there might be some reassessment by the school over time. In the event that that assessment takes place over time, then the parties should accept and act on the advice of the school.
It is important, in my view, that the children are informed of this decision in a way which is free of the motivations and inflections of each of the parties, and, for that purpose, it seems to me entirely appropriate that Ms L be engaged for the purposes of explaining these reasons and these orders to these children before the children are informed of these reasons and orders by the parents, and that they be informed of these reasons and orders by Ms L with their parents present. The intention is that neither parent will tell them what I have decided until Ms L tells them and explains that to them and that both of you will be present when that happens so that they understand that you both hear what Ms L says, as well.
The issues in relation to school holidays do not arise as a result of these orders. In relation to school holiday time, as I understood the submissions before me, in the event that I decided the children should attend mainstream schooling, then they would spend one half of their school holidays with each of their parents.
The one final issue that remains is whether [X] should, as was summarised by both counsel, retain a right of “veto” in terms of time with the father. Notation number 12 to the consent orders that were handed up to me at the trial provide for this:
That if [X] does not wish to spend time with the father in accordance with order 6(a) herein, the parties will arrange for [X], if she wishes, to make up the missed time with the father at a later date, but as soon as practicable thereafter.
I refuse to make that order. In my view, it is entirely inappropriate. Whilst it is one thing to take into account children’s wishes, it is entirely another thing to have them deciding when and where they will spend time with their parents. If there is an occasion that arises when [X] is unable to spend time with her father because she wishes to do other things, then that will be a matter for her to negotiate with him, as any child would do with a parent in any ordinary situation. But to give a child a right of veto, as the mother suggests, invites trouble.
My associate will have Ms L contact the parties as soon as possible for the purposes of organising a time next week to speak with you and the children, and when that contact has been made, Ms L will, no doubt, contact both parties to make sure it’s convenient for everybody.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Date: 23 June 2010