Stewart and Stewart

FEDERAL CIRCUIT COURT OF AUSTRALIA

STEWART & STEWART

[2016] FCCA 1350

Catchwords:
FAMILY LAW – Parenting – final orders in place – both parties seek orders for schooling – mother seeks sole responsibility for choosing extra-curricular activities.

Legislation:

Family Law Act 1975

Applicant:

MR STEWART

Respondent:

MS STEWART

File Number:

BRC 1248 of 2013

Judgment of:

Judge Coates

Hearing date:

31 May 2016

Date of Last Submission:

31 May 2016

Delivered at:

Brisbane

Delivered on:

6 June 2016

REPRESENTATION

Solicitors for the Applicant:

Self-represented

Counsel for the Respondent:

Mr P Hanlon

Solicitors for the Respondent:

North Law

ORDERS

That, unless otherwise agreed in writing between the parties, the children, [X] born … 2006 and [Y] born … 2008 (“the children”) attend high school at Suburb A High School. In the event the children are not accepted into Suburb A High School, then the children are to attend at a State High School in their residential catchment area.
That the parents be at liberty to choose one (1) extra-curricular activity for the children as follows:
(a)In 2016 and each even numbered year thereafter, the mother be permitted to select one (1) extra-curricular activity per term for each of the children; and
(b)In 2017 and each odd numbered year thereafter, the father be permitted to select one (1) extra-curricular activity per term for each of the children.
That for the purposes of Order 2 hereof, the parent who is making the decision as to the children’s extra-curricular activity is to notify the other parent of the decision in writing by no later than three (3) weeks prior to the commencement of the activity.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 1248 of 2013

MR STEWART

Applicant

And

MS STEWART

Respondent

REASONS FOR JUDGMENT

Final orders for the children, [X] born … 2006 and [Y] born … 2008, were made on 11 July 2014 by consent.
Pursuant to those orders the children live with the mother and spend alternate weekends with the father.
The orders made provision for school holiday time with both parents.
No orders were made for the children to attend a specific school.
The matter has returned to court to determine a dispute over choice of school, payment of school fees and who may make decisions for extra-curricular activities.
No orders were made for schools in the original orders, because during the marriage and after separation, the parents envisaged that [X] would attend Suburb B Grammar School and [Y] would attend Suburb C Grammar School.
By way of background:
a)The parents commenced their relationship in … 2004;
b)The married in … 2005;
c)They separated on 17 May 2011;
d)The father is aged 49;
e)He is a professional by profession;
f)The mother is aged 44;
g)She is a student;
h)Final property orders were made 22 April 2014, a matter relevant to the resources of the parties in the schooling fees dispute.
i)Under those orders, the husband and wife agreed to an arrangement where by the wife took approximately 80 percent of the net property, which the court determined to be just and equitable;
j)In today’s figures, the wife valued her property in her Financial Statement filed 20 May 2016 (for this proceeding) at $1,459,036, with liabilities of $249,832;
k)For the purposes of this proceeding, the husband valued his property at $1,105,000, with liabilities of $1,018,385;
l)As to income, the wife stated she earns $982 a week made up of social security and child support payments and has expenditure of $1,270 a week;
m)The husband earns $3,846.15 a week and has expenditure of $5,637.73 a week.
(It is relevant to note that these figures were not challenged.)
I will deal with the school issue first.
Steps to enrol [X] at Suburb B Grammar School began in 2006. An enrolment charge of $1,000 was paid by the parents to the school.
Steps to enrol [Y] at Suburb C Grammar School began in 2008. An enrolment charge of $440 was paid by the parents to the school. Those dates were soon after the birth of each child.
That those charges were paid does not entitle the children to go to those schools – more is required to secure positions, including agreement of both parents, reflected in both signing further documents.
The intention to send the children to the private schools was agreed until mid-2014, however, at that time, the father changed his position based on three issues – costs, his view that [X] would not necessarily thrive at the school and his view that he did not like the school’s response to evidence arising recently in the Royal Commission into Institutional Responses to Child Sexual Abuse.
As to payment of fees, the mother, until recently, was not clear as to what she sought.
When I set the matter for trial in October 2015, I made the comment that on her submissions then her case seemed to be a matter for an application to the Child Support Agency, although what she was seeking was not particularly clear.
Her position became clear a fortnight before the trial, when she filed an Application in a Case seeking a departure from child support assessment payable by the father.
She sought departure orders which would put her in the position of being responsible for 40 percent of the school fees and with the father being responsible for 60 percent of the school fees (for both the Suburb B Grammar School and the Suburb C Grammar School).
I dismissed the application on the day of trial (31 May 2016) giving reasons, including:
a)That I had previously (in October 2015) indicated that the matter may be more suitable to be determined administratively by the Child Support Agency;
b)That the matter was not taken to the Child Support Agency by the mother;
c)The mother’s subsequent non-compliance with the rules in bringing the departure application after the trial was set, and
d)The new matter was not the trial matter I had given directions to hear, based on the original materials filed by the parties.
The mother’s case then became:
a)That [X] should attend Suburb B Grammar School because his father and grandfather attended there;
b)That [Y] should attend Suburb C Grammar School;
c)That the father could afford 60 percent of the school fees;
d)That she could afford 40 percent of the school fees;
e)That [X] wished to go to the school;
f)That both parents had planned to send [X] to Suburb B Grammar School and [Y] to Suburb C Grammar School, and
g)The two girls in the father’s home, daughters of his wife, go to a private school now (School D) and, by inference, he must be paying or contributing to the fees.
I will deal with the position of the father’s stepdaughters. His evidence was that his wife had lost her job recently and they would not be attending School D for much longer. They would be going to Suburb A High School when they attended high school (some years away). Further, his evidence was to the effect that the decision was really that of his wife and the father of the children.
Given those answers, and I think not having a clear idea from his client as to what else may be said by the husband if the matter was pursued, counsel for the mother very wisely asked no further questions.
I will make this observation, there seemed to be, unfortunately, a view of the mother that the father was providing more for his stepchildren than for his children. No cogent evidence whatsoever was presented to support that view, although various allegations were made and some alleged facts were referred to by her.
The enormity of the costs of what the mother was seeking became apparent when she gave evidence that she had assessed the costs of the private grammar schooling she wanted.
She estimated that school fees for the two grammar schools would cost the parents $250,000 to $300,000, on present day figures. The father did not disagree with that that amount, and on his own estimate, had calculated combined costs of $50,000 a year when [X] and [Y] attended the grammar schools at the same time, which would be for a two year period.
The father’s evidence was to the effect that he could not now afford the private schools originally chosen by the parties, and the mother would not negotiate any other school which would be affordable within their incomes.
On that basis, he sought orders for the children to attend Suburb A High School when they reached high school age.
Because the children did not live in the catchment area, he sought orders for them to attend a school in their home address catchment area if not accepted at Suburb A High School, which at this stage would probably be Suburb E High School.
His view was that the children, based on his enquiries, would be taken in by Suburb A High School.
As to his income, he did earn about $450,000 a year when employed as a professional.
His wages have dropped to about $200,000 a year now, because he left the employer where he was.
On his evidence he was tired and could not keep up the constant hours which the employer demanded.
He also has other costs now that he had remarried, such costs outlined in his Financial Statement filed 30 May 2016.
On the evidence run at trial, I have no choice but to accept that evidence – as it was not challenged, nor could it be without special knowledge on the part of the mother inconsistent with the father’s evidence.
As to his views that [X] may not cope as well as the mother believes he will at Suburb B Grammar School, that his belief. It does not assist the court in determining the matter. Nor does the mother’s belief.
As to his case that he does not like the school responses to the Royal Commission – again, that is a view which does not assist the court.
However, that he has strong views on these issues, and these were expressed as strong views, indicates that the communication and understanding between the parents is extremely poor. There was no evidence that either parent would change their views or be able to discuss their views. Nothing can be done about that other than to make orders for the children to attend at a school.
I cannot make orders to improve the communication as a best interests order, because on the evidence, as I say the views of the parents will not change.
That the mother relies on [X]’s strong view that he would attend at Suburb B Grammar School does not take into account the real issue of whether each of these parents can afford the school.
This part of the mother’s case raised two issues, being
a)The ability to pay fees, and
b)The exercise of parental capacity and responsibility in relation to [X]’s expectations.
As to ability to pay, I would not asses the father in his present circumstances as having the ability to pay 60 percent of the fees. That is simply a matter of the evidence before the court.
I had indicated to the mother in October that her case then sounded like a child support issue, yet she failed to take the matter there where decisions can be made as to capacity to pay, taking into account a range of considerations.
The mother said she could afford 40 percent of the fees, yet on her income, I do not see she has proven her case.
She said she will sell some of her property, and enrol the children and then seek a child support departure assessment, but even then, she put forward no persuasive material that she could afford on-going, and very probably rising fees, over the years, if her child support application was not successful.
I will take judicial notice that not only would school fees be an issue, but there are numerous other costs associated with schooling costs to be paid by parents.
As to [X]’s expectations, a family report I ordered because the dispute had come into court with claims of the children being withheld by the mother, disputes not relevant to the trial issues, indicated that his expectations could and should be managed.
Family consultant Mr F left open the question as to whether the mother was influencing the child, especially when he came to the conclusion, recognised by the father, that [X] resents the father.
The father has the view that the mother is fuelling [X]’s position and resentment.
He very clearly understood he had to deal with it, and he was confident that [X] would get over the fact that he could not go to Suburb B Grammar School and that his parents could not afford the school.
In my view, no order I could make, whether it be that the child attends Suburb B Grammar School or not, will repair the child’s resentment if in fact his views are being encouraged by the mother.
As I have stated, this matter returned to court initially because the father filed a contravention application which he discontinued. The matter grew from there, but I ordered a family report to assist the parties, and the court, if need be.
The report goes to issues which are unresolved, and this dispute over schooling and decision-making are just part of those wider unresolved issues.
Mr F concluded, at paragraph 8.4 and 8.5 of his report that:
“8.4 The children have somewhat insecure attachments with their mother and are quite clingy with her. The relationships that they have with their father do not appear well established. The degree to which this might be due to any behaviour manifested by Ms Stewart, is questionable. From her comments, it does not seem that she easily encourages the children (particularly [X]) in their relationship with their father, but she does insist that they spend time with him. The fact that [X] refers to his father as “Mr Stewart” might be telling in this regard.”
“8.5 Both children are expressing some difficulties in adjusting to an easy acceptance of their father’s new family circumstances and express a sense of injustice about the things that Mr Stewart’s partner’s children receive, compared to the things that they receive. This related to both material items, but also in [X]’s case, to his involvement in extracurricular activities and his perception that two of his step-siblings are attending private schools. There is little doubt that he is confused about that issue and wonders why his father has not agreed to him attending Suburb B Grammar School. Moreover, he is aware that his engagement in sports has been restricted because of his father’s beliefs around the issue.”
Those two paragraphs, which I accept as facts in this case, are telling.
They address deep seated issues which the parents must address and which, in my view, cannot be repaired by mere orders of this court. It seems to me that the onus lies with the mother to make the first moves, because she is pushing for [X] to attend Grammar and the child lives with her for the majority of the time.
As I said, I cannot make an order to repair these difficulties because they seem to be difficulties arising because of the separation and because of the new set of circumstances which the children find the parents in.
The father has a view that [X] will get over these issues about the school and that view accorded with Mr F’s assessment that the child would cope with not going to Grammar.
In my view the child will cope with not going to Grammar if that is the order, if the mother responsibly handles the situation for the child, even though such an order would be a great disappointment to her. It may be more of a disappointment to her than to the child, given all of the remarks in the family report.
It seems obvious on that evidence that I do not accept the mother’s position that she can afford 40 percent of the school fees, even with assistance from her family as she seemed to indicate she would get.
In that case, I accept as the father contended, starting [X] at Suburb B Grammar School and then removing him would be detrimental to his best interests.
In my view, there is no real choice of cases to choose from and from which a discretion could be exercised, other than to make an order, because the mother will not agree, that the children attend at Suburb A High School for their high school years, and if they cannot be enrolled there, they be enrolled at a high school in the catchment area they then reside in.
I need to make one further observation. Both parties gave me their view on why the children would excel or not excel at the schools they believed were suitable.
Their views are the legitimate views of parents, but they are not expert views based on various assessments which can be undertaken as to a child’s vocational ability.
The state government provides what I would take judicial notice of – a very reasonable and capable education system, and from that point of view, the children will not be disadvantaged by attending at a state school.
Now I will deal with the decision-making process for extra-curricular activity.
Without doubt, the mother has enrolled the children in activities of her choice without informing the father. So that I am clear, the children may, or may not have expressed an interest in such activities, but it was the mother’s choice to allow them to do those activities.
The evidence was that she does not inform the father, in a timely fashion, of her choices.
The result of that is that she:
a)Takes no account of the father’s commitments when the children are with him and he is expected to arrange travel for the children to their respective extra-curricular activities, and
b)She does not allow him to have any input into the decision –making.
There was evidence before the court, by way of example, that [Y] engaged in musical activities and the father did not know until the mother, out of the blue, sent him a notice that [Y] was performing at a musical function, and needed to be there. In relation to the child [X], the mother confirmed that she simply had not told the father of her arrangements for one particular sport, yet still expected the father to be able to get him to the sport when the child spends time with him.
The mother at first denied that she didn’t tell the father but it was clear from those two examples that she was not communicating her decisions.
The father’s case was that he fell into line as often as he could, taking into account his other commitments.
He then raised the issue as to the fact that the lack of communication between the parties does not allow his views on the children’s activities to be taken into account.
The father does not want [X] playing sports. He believes he is too slight in build and could get injured easily because of the contact-nature of the sport. Rather than face the issue, the mother’s case is simply that the father will not take the child to sports.
I did not accept the case as being presented by the mother.
There was ample evidence that the father attended sports with [X] when he could.
I will point out that I am not concerned with the personal views of the parties as to which extra-curricular activities are suitable. I am concerned with the fact that decisions are being made by the mother and being forced on the father.
The other problem, as put forward by the father, was the number of activities being undertaken by the children, and on one occasion one child was committed to three different activities on a Friday.
The family consultant addressed the issue by stating that if the court came to the view that the mother was making the decisions, then perhaps an order could be made that she nominate one sport or one activity for each child for each term, transmitting that information to the father of course.
Because the father raised the issue that his decision-making was being ignored, I raised with the parties whether each should be allowed to make sporting or extra-curricular activity decisions for the children, annually, and on an alternating basis.

The mother’s position seemed to change during the hearing as I observed the matter, but finally she said that she would not agree to such an order and that she ought be allowed to make decisions for the children nominating two activities for each child during each term.
I must say there appeared to be a lack of appreciation of reality by the mother as to the situation.
She was totally ignoring the order made in 2014 giving the parties equal shared parental responsibility and the evidence was that she simply made the decisions without reference to the father, not caring that he had commitments because of his second marriage.
Further, that she would not accept a proposition for the father to be allowed to choose an activity for the children – in conjunction with them – was not indicative of a child-focused position.
The father said he would dearly love to make decisions and he was aware of the activities which the children wanted to undertake, by way of example stating that [X] loved sports and that he had raised the issue of playing sports, a game [X] indicated he would like to play.
Having referred to those facts, I find that the mother, for whatever reason, is not taking the order for equal shared parental responsibility seriously and has decided that she will control the situation and make the decisions for the children as she sees fit.
The effect of her position is that she limits the children’s opportunity to have the benefit of a meaningful relationship with the father because he is not being allowed to make very important decisions for the children with regard to sporting and other activities, an important parental responsibility.
I accept that the father, as with many parents, cannot always attend their children’s sports, however it is then the parent’s responsibility to organise a lift to the activity.
I accept his position that sometimes there are family reasons preventing a child from attending an activity, but that does not occur on every sporting occasion and it is important that a child enrolled in a sport has the opportunity to take part in that sport – for numerous reasons.
Given those facts, I intend making an order that the parents, on an alternating basis, be allowed to make a decision for each child per term to take part in one activity only, unless there is an agreement otherwise. I need to limit the number of such activities because:
a)I accept the evidence that the father has the view that too many activities are being undertaken;
b)The mother has simply excluded him from giving his parental view and exercising his parental responsibility in relation to activities, and
c)She simply will not give in and then told the court she wanted to make the decisions for two activities each per term.
This is no small issue for the parents. I accept that there is a risk if the parents cannot follow these orders, as Mr F pointed out, when he said at 8.26 of his report: “Continuation of disputes around participation in activities is only going to result in the children becoming frustrated and saddened as a result of their parents not being able to effectively co-parent.”
Mr F’s statement indicates that the disputes in this family are a reflection of the changes which occurred upon separation. The expectations held by the parents when together cannot be achieved now, as their circumstances have irrevocably changed, which has caused a change for the parenting arrangements for their children. Unless they examine their own responses to separation and these changes, they risk putting their children into the situation described by Mr F. Orders cannot redress these very personal responses.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Coates

Date: 6 June 2016

[2016] FCCA 1350

6 June 2016

Key Legal Topics

Areas of Law

Family Law