Talcott and Talcott - [2013] FMCAfam 158

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TALCOTT & TALCOTT

[2013] FMCAfam 158

FAMILY LAW – Parenting – dispute about schooling – high conflict.

Family Law Act 1975 s.60CC

Goode & Goode (2006) FLC 93-286
Re G (2000) FLC 93-025

Applicant:

MR TALCOTT

Respondent:

MS TALCOTT

File Number:

SYC 2163 of 2009

Judgment of:

Altobelli FM

Hearing date:

13 February 2013

Date of Last Submission:

13 February 2013

Delivered at:

Sydney

Delivered on:

13 February 2013

REPRESENTATION

Counsel for the Applicant:

Mr Schonell

Solicitors for the Applicant:

Barkus Doolan Kelly

Counsel for the Respondent:

Ms Kennedy

Solicitors for the Respondent:

Vizzone Ruggero & Associates

ORDERS

The child [X] born [in] 2000 attend [C] School for the 2013 scholastic year.
The Mother do all things necessary to ensure [C] School to provide all reports, photographs, correspondence and all information relating to the child [X] to the Father.
The Mother shall not denigrate or discuss the Father in a negative manner to any school teacher, parent or employee at [C] School, or permit any other person to do so.
Orders 3, 4 and 5 of the Father’s interim orders sought in his Initiating Application filed 30 January 2013 be dismissed.
The Applicant is to file and serve written submissions as to costs, not exceeding 500 words, no later than 4pm on 18 February 2013.
The Respondent is to file and serve written submissions in reply, not exceeding 500 words, no later than 4pm on 28 February 2013.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 2163 of 2009

MR TALCOTT

Applicant

And

MS TALCOTT

Respondent

REASONS FOR JUDGMENT

I provide the following ex tempore reasons in this matter of Talcott.

I once said in the context of another case that if it were possible to bottle the hatred between the parents it would constitute an insidious weapon of mass destruction. Those comments apply to the parents in this case as is manifested by the particular issue that is before me.
By way of an application that was filed on 30 January 2013, the father, who is the applicant, seeks a number of orders the effect which would be to cause his daughter, [X], born [in] 2000, who is nearly 13 years old, to attend [S] School for Year 7 this year instead of at [C] School where she presently attends having been enrolled there unilaterally by the respondent mother.
The father also seeks a more general order that restrains the mother from enrolling [X], or any of the other children, in any other school without his prior written consent or court order.
By way of a response that was filed in Court on 11 February, the mother seeks an order that [X] attends [C] School for her secondary education.
The matter came before me on 7 February. I heard submissions from Mr Schonell, Senior Counsel for the father, and Mr Givney and then Ms Kennedy for the mother.
After hearing submissions I ordered the parents and [X] to attend a child inclusive child dispute conference which in fact took place yesterday, that is 12 February and otherwise stood the matter over to today so that I could hear some further short submissions as regards the memorandum provided by the family consultant and then make orders.
The evidence before me consisted of two affidavits of the father and two affidavits of the mother. There is a family consultant memorandum to Court of 12 February. A number of documents were tendered in evidence on 7 February and a number of documents were tendered in evidence today perhaps the most significant of which might be the family report provided by Dr G in the substantive proceedings and the report prepared by Ms B dated 5 April 2011.
The applicant father lives in Hong Kong, the respondent in Sydney. On 7 April 2011, the parents entered into consent orders after nearly seven days of hearing before me. A notation to those orders states the Court notes that the parents agree that the children shall attend [S]’s at [omitted] for their secondary education.
The issue before the Court is where [X] should go to school. It’s common ground that she is in her third week at the moment at [C]’s, and that the father wants her to go to [S]’s.
The applicable law is found in Part VII of the Family Law Act. The Full Court’s decision in Goode & Goode contains a useful discussion about the relevant provisions of Part VII. However, the very nature of these proceedings means that whilst the procedure that has been adopted is akin to an interim application the orders that I will make, will, for all practical purposes be final. This limits the application therefore of the Full Court’s decision in Goode & Goode.
It is not possible to cross-examine the mother or the father or the family consultant, given the need to deal with this case together with many, many other cases in my docket as well as to make a timely decision in relation to [X].
Not much law was cited during the course of this case. I am not saying that in any critical sense. The focus was elsewhere. It seems to me that the Full Court’s decision in cases such as Re G (2000) FLC 93-025 children’s schooling, provides some assistance. There are a number of paragraphs from the Full Court’s judgment that I will incorporate into these ex tempore reasons, in particular paragraphs 92 and 93:
92. In addition, we think there is considerable substance to arguments on her behalf that weight should be given to the travel commitments associated with the school that the children attend. Where a decision must be made by a Court in circumstances where parents are unable to agree as between two schools which are prima facie very satisfactory, we see advantages to the children attending a school which is closer to the children’s residence. In terms of the practical fulfillment of parenting obligations, it is desirable to enhance the ease with which a parent who assumes the bulk of day to responsibility can meet the multiple associated demands of children’s dependence on a caregiver for transport, participation and security. We do not consider that the fact of a prior agreement between the parties as to [School A] carries much weight in the changed circumstances of the family.

93. While we have indicated that her Honour was wrong in taking guidance from Newbery’s case, we do think that in considering the effects of any decision as to schooling and like matters, it is proper to consider evidence as to any greater effect upon a resident as distinct from a non-resident parent that a particular decision will have. This is because it is the resident parent who will in most cases have greater day to day responsibilities in respect of the child and it is, we think, in a child’s best interests that the resident parent should not be subject to more irksome and unnecessary additional restraints than such commitments already entail. The matters advanced by the wife in this regard weigh in favour of the wife’s choice of school.
As I have indicated, a decision in this case is necessary. It needs to be done today. It is unsatisfactory that the evidence could not be tested. It is unsatisfactory to the parents that important decisions about [X] will be made on the basis of submissions only, without testing the evidence they give in their affidavits. The parents may well regard it as unsatisfactory that I will, in effect, make a decision in relation to [X] and pass judgment on them based on impressions and not findings but that is unavoidable.
[X] needs to know where she is going to school and once she starts school for this year, wherever that will be, it will not be in her best interests to change that unnecessarily. If the Court makes a decision to change her school it must be done today in order to minimise the impact on her.
This case still must be decided by reference to law. Whilst the Court has a wide discretion, it is one that must be exercised by reference to a number of factors contained in s.60CC of the Family Law Act and I will turn now to consider the application of those considerations to the facts of this case.
[X] appears, on the evidence before me, to have a meaningful relationship with both her parents which, somehow, has survived the intense parental conflict and which meaningful relationship appears to subsist notwithstanding the fact that her father is in Hong Kong and probably has far less time with [X] than he would want. Thus meaningful relationship is not a consideration that informs the Court’s decision today. Whatever school she goes to, she will continue to have a meaningful relationship with her father.
The choice of schools for [X] does not go to the issue of protecting her from harm and family violence as is defined in the Act. The ugly reality, in this case, is that the intense parental conflict, which was played out before me for nearly seven days in 2011 and which appears unabated, even today, will continue to exist whether or not [X] goes to school at [C]’s or [S]’s.
It seems to the Court that the capacity of the mother and father to engage in conflict about these children is limitless. One would have thought the prognosis for the children, if this were to continue indefinitely into the long term, is a poor one. It is nothing less than tragic that the mother and father cannot perceive the impact on [X] and her sisters of the chronic conflict that exists between them.
I am required to consider any views expressed by [X] and any factors that the Court thinks are relevant to the weight it should give to the child’s views.
The family consultant memorandum to Court is a very recent document. The child inclusive conference was conducted by a very experienced family consultant. In the report [X] appears to express a strong view that she wishes to attend [C]’s for the reasons that she articulates in that report.
The father appears unsurprised by this, but is deeply sceptical. Senior counsel for the father in effect submits that I should place little weight on the report in the circumstances of this case, where there may well have been influence on [X] by the mother, possibly over an extended period of time, where the expression of her views seems to be so inconsistent with what the father asserts that [X] said to her as recently as January, and that in any event, in the circumstances of this particular case – and here I take it to mean the peculiar features of this high-conflict case – it is not one where [X] should be allowed to decide the case, let alone influence it.
I was referred to a number of matters contained in the family report and Ms B’s report that go to the question of the weight that I ought to place on the statement of views. Ms Kennedy submits that the amount of time that has gone by would mean that I place less weight on what is contained in the earlier reports and more weight on

Ms F’s report, and I think there is substance to what she says.
The fact is that the family consultant memorandum to court is the only recent and the best available evidence I have of [X]’s views on the issue before the Court. Given her age, her developmental stage, and the descriptions of her personality and character, it would be unwise to ignore her views or not to give her views appropriate weight.
I am required to consider the nature [X]’s relationship with each of her parents. I think there is no doubt on the evidence before me, not just the affidavits, but even the earlier reports, and, indeed, the family consultant memorandum to court, that the relationship that [X] has with her mother and father are slightly different.
This is perhaps unsurprising, given that the day-to-day care is provided by the mother. The father is overseas and has limited contact with her. There are vulnerabilities the Court perceives in [X]’s relationship with both her mother and father. But for present purposes, in the context of deciding where she will go to school this year, the impression is that there is a greater vulnerability in her relationship with her father than there is with her mother. This is a product of distance and the nature and the frequency of contact. I think, today, one of the biggest concerns the Court has is the impact on [X]’s relationship with her father of making an order the effect of which would be to go contrary to her expressed views.
Mr Schonell, in his thoughtful submissions on this topic in effect argued that this must be seen in context that, at the end of the day, these are matters that the father and [X] will simply have to deal with, and that, in effect, [X]’s character is such that she can deal with a decision made by her father, because that is how it will be perceived, based on her maturity. The fact remains that this is a big concern in the Court’s mind.
In the family consultant memorandum to court, there are two references where [X] makes certain observations about her father. In the third paragraph on the second page, on the last line there’s a record that [X] said that “he yells and does not listen”. And then in the next paragraph, in the last sentence there’s another record of what [X] said. She said she does not know why her father is so adamant about [S] School and that she tried to talk to him about [C] School, and he does not listen. She left it to her mother to take care of.
At the very least, the evidence before the Court indicates that [X]’s perception of her relationship with the father is one in which he does not listen to her. The concern remains in the Court’s mind about the impact on her relationship with the father if the Court were in fact to make the order that the father wants me to make.
I am required to consider the likely effect of change in [X]’s circumstances. This is a relevant factor, but I do not think it is determinative. As it turns out, it might be inconvenient, indeed, possibly embarrassing for [X] to now be ordered to attend [S]’s. There might be a minor disruption to her education, but all the evidence about [X] suggests that she has a certain resilience of character that would enable her to cope with these sorts of physical changes.
As I mentioned in my discussion of the last consideration, the Court is actually more concerned about the emotional impact of the change that is contemplated by the father’s order, and the possibility, indeed the likelihood, that the emotional impact be manifested by resentment that is played out on a daily basis perhaps with her mother, but ultimately focused on her father.
I am required to consider the extent to which each parent has taken or failed to take the opportunity to participate in decision-making. Where would I start in discussing this consideration?
Indeed, I think it might be best that I reserve my comments in terms of looking at issues of parental capacity and parental attitudes and responsibilities. There do not appear to be any significant issues of practical difficulty and expense. True it is that the evidence suggests that the mother faces a number of logistical difficulties as regards to children that might be mitigated by [X] going to [C] School rather than [S] School. This is a relevant consideration, but not of itself determinative.
Turning now to issues that may be broadly grouped together as issues of parental capacity to meet the needs of the children, especially the emotional needs, attitudes to the children and to responsibilities of parenthood, again, it is hard to know where to start. When two parents both behave so poorly and yet are so seemingly oblivious to the impact on their children of their appalling behaviour, they should not be surprised that when they come to Court, their behaviour will be judged.
Unless the Court expresses indignation on behalf of the children for what the parents have done, for what the parents are doing, and for what the parents are likely to do in all probability in the future, the children’s voice will most likely never be heard. The behaviour of both the mother and father in this case is appalling. The evidence gives insight into their behaviour, their attitudes, their ability to communicate with each other. It is an understatement to say that the communication between the mother and father tends to be toxic.
The father, who is [occupation omitted], should pause to consider, when he reads these reasons, the analogy that is about to be drawn. In terms of who was the most responsible for the toxic communication, it is a photo finish, but this steward finds that he was ahead by a nose. Clearly, the father has no insight that toxic communication from him invites a toxic response, a criticism that might equally be levelled to the mother. Clearly he is indifferent to the potential impact on his own children of the systematic denigration and abuse of the mother that is evident in the correspondence with her.
The mother’s arrogance in her management of this school issue almost defies description. She ignored the notation in the Court’s orders. She sought to trivialise and minimise the significance of these notations. She demonstrated that she is not a person who the Court can trust when it comes to promises. Ironically, she offers undertakings to the Court today. The unilateral decisions that she made about [X]’s schooling totally ignored her obligations as a co-parent and completely ignored any notion of co-parenting and parental responsibility.
These reveal an ugly, arrogant side to her character, an indifference to the role of the father in [X]’s life, a short-sightedness about the impact on the broader family, including the other children, and a total absorption with self.
That she was motivated by child support issues is plainly apparent. Until this case got in the hands of sensible legal counsel – at that point only, it became a case that was properly concerned about [X]’s best interests. But until then, it was nothing more than a thinly disguised payback of the father for his dissatisfaction about child support. She had any number of opportunities to properly deal with the child support issue in 2012, but she declined, for her own reasons.
She had any number of opportunities to deal with the schooling issues in 2012, but she declined to do so, again for her own reasons. It should not pass unnoticed that some of these matters reflect just as poorly on the father.
The focus of this decision must remain, nonetheless, on what is best for [X]. Quite frankly, she cannot help having the parents that she does. When one has regard to the considerations under s.60CC that have been discussed above, in the Court’s opinion, these favour – only just – leaving her where she is, at [C] School. The order that the mother seeks is not just that she attends [C] School for 2013, but that continues to the conclusion of her secondary education.
In the circumstances of the abbreviated hearing that has taken place before me, I decline to make an order that extends to the conclusion of [X]’s secondary school. The order that I make, therefore, will be that [X] attend [C] School for the 2013 scholastic year.
The mother offers a number of undertakings in terms of both hers and the father’s relationship and communication with [X]’s school. For reasons that I trust will be apparent, I do not accept the mother’s undertaking, though I do accept the need to make orders in terms of that which she has proffered to the court as an undertaking, and I will do so.
In the father’s application, I dismiss order 3, about [S] School.
It follows that order 4 must be dismissed and order 5 as well.
I am going to note that the applicant father seeks an order for costs. I am going to direct his counsel to file and serve submissions in relation to costs not exceeding 500 words no later than 4 pm on Monday, 18 February.
I direct the respondent mother to file and serve submissions in response, again not exceeding 500 words, no later than 28 February.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Associate:

Date: 25 February 2013