Taylor and May

[2012] FMCAfam 1321

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TAYLOR & MAY [2012] FMCAfam 1321

FAMILY LAW – Interim decision – to determine what school the children are to attend.

Family Law Act 1975, ss.4, 60CA

Elspeth & Peter [2006] FamCA 1385
Hooper & Hayston [2011] FMCAfam 1466
Marriage of H (2003) 30 Fam LR 264
Re G: Children’s Schooling [2000] FamCA 462

Applicant: MR TAYLOR

Respondent: MS MAY

File Number: AYC 358 of 2012

Judgment of: Neville FM

Hearing date: Not applicable

Date of Last Submission: 9 October 2012

Delivered at: Canberra

Delivered on: 17 October 2012

REPRESENTATION

Counsel for the Applicant:

Solicitors for the Applicant: Mrs Murrell
Farrell Lusher Solicitors, Wagga Wagga

Counsel for the Respondent:

Solicitors for the Respondent: Mr Finch
Creaghe Lisle, Wagga Wagga

ORDERS

1. The children, X born (omitted) 2007 and Y both born (omitted) 2007, are to attend (omitted) Primary School, on the basis that:

   (a)if the Father fails to honour two consecutive payments of school fees then the children are to attend the Mother’s school of choice; and

   (b)the Father is to pay for the children’s school uniforms and any relevant educational expenses that would not otherwise and ordinarily have been incurred were the children to have attended (omitted) Public School.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CANBERRA

AYC 358 of 2012

MR TAYLOR

Applicant

And

MS MAY

Respondent

REASONS FOR JUDGMENT

Introduction

1. This application concerns what school 5 year old twins, Y & X, should attend next year in (omitted).

2. In short compass, the choice is between the Applicant Father’s school of choice, being (omitted) Primary School, a local Catholic school, or the Mother’s preferred school of choice, (omitted) Public School, being a local government school.  All other parenting orders have been agreed between the parents.

3. Further, in general terms, there is no dispute as to the respective merits of the quality of education provided by both schools.  Indeed, neither parent sought to challenge the overall education that would be provided at either school.

4. Among other concerns raised by the Mother is that the Father may be financially challenged to meet the requisite school fees.  The reasons she contends give rise to such an apprehension are set out in her detailed affidavit.  In this regard, and in response from a suggestion from the Court, in the course of submissions the Father confirmed that he would consent to an order to the effect that if he failed to pay the children’s school fees for two consecutive payments (he having advised that he proposes to arrange with the school to pay school fees by instalments) then the children will move to the school as sought by the Mother.

5. The Mother also raises logistical issues in relation to getting the twins to the Father’s preferred school from her residence.  That said, there was some general acknowledgment that, certainly compared to major metropolitan areas, transport from either parents’ residence to either of the schools in question was not completely arduous.  It was (and is) more a question of convenience.  This is understandable because the Mother’s preferred school for the children is approximately ‘two blocks’ from her residence.

6. In support of the Mother’s position and issues of distance, transport and convenience, she relied upon two decisions: Re G: Children’s Schooling [2000] FamCA 462, and Hooper & Hayston [2011] FMCAfam 1466.

7. All submissions recognised that, as with all parenting matters, including the choice of schools, the best interests of the children is the paramount consideration in accordance with s.60CA of the Family Law Act1975.

8. The Father contends in his affidavit material that he is a committed Catholic whose faith is important to him, and it is consequently important that his children be brought up according to the tenets and practices of that faith tradition.  He confirmed that he and the Respondent Mother were married in the Catholic Church, and that the children have been baptised.

9. Leaving to one side that a very significant part of her affidavit deposed to a wide range of alleged parenting short-comings on the Father’s part, the Mother contends that the Father does not practice his faith with any regularity and did not do so during their marriage.  She also says that she did not maintain the practice of her Catholic faith beyond age 13 years.

10. How one divines (if that be the right word) the school that is in the best interests of the children in such narrow competing circumstances is difficult, to say the least.  The so-called ‘legislative pathway’ offers even less than usual light or direction.

11. Further, the case law, such as it is in relation to matters of religion, is usually in the context of the Court considering what is not in a child’s best interests, such as belonging to some non-mainstream religious sect or tradition (see, e.g. Elspeth & Peter [2006] FamCA 1385 – a case decided by Benjamin J involving the (omitted); or Marriage of H (2003) 30 Fam LR 264 – a decision of Ryan FM as her Honour then was, which involved the (omitted) tradition). Such is not the case here.

12. Indeed, according to the Mother’s affidavit material, the main reasons for her opposition, apart from convenience, relate very much to her concern about the Father’s capacity and reliability to pay and to maintain payment of the children’s school fees.

13. It is clear that both education and religion are both ‘major long-term issues’ as defined in s.4 of the Family Law Act1975.  Here, those issues over-lap.  Even if one wanted to do so, it would be quite difficult to distinguish between them. However, the matter, it seems to me, comes down, not to the issue of education (because there is no dispute that the children will get a good education where-ever they attend), but rather one of religion.  And certainly, as I have said, from the Mother’s perspective, it is also a question of cost.

14. To the degree that one can discern the best interests of the children in accordance with principle, in my view, while-ever the Father maintains both his commitment to their religious education, as well as to his financial commitment to that same education, the children should attend his school of choice.  It must be, however, on the proviso previously indicated, namely that if he fails to honour two consecutive payments of school fees, then the children will attend the Mother’s school of choice.  It is also on the proviso that the Father pays for the children’s school uniforms and any relevant out of pocket expenses that would not otherwise and ordinarily be part and parcel of usual expenses of the children’s education if they were to attend (omitted) Public School.

15. Should it need to be stated, I simply observe (and admittedly and bluntly) that if the Father does not practice what he preaches, it will render his children’s education at (omitted) Primary School hollow, if not hypocritical.

16. With the provisos mentioned, and in addition to the orders to be made by consent, the order as sought by the Father should be made in relation to the children’s schooling.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Neville FM.

Date:  18 December 2012