THAXTON & HALLOWS

[2014] FamCA 972

FAMILY COURT OF AUSTRALIA

THAXTON & HALLOWS [2014] FamCA 972

FAMILY LAW – CHILDREN – Specific issue as to schooling – where determination necessary on interim basis as to the high school to be attended by the eldest of two children – consideration of general principles – where order made as sought by the mother.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Goode & Goode [2006] FamCA 1346
Re G: Children’s Schooling [2000] FamCA 462
Kirkland & Granger [2007] FamCA 1471
Raymond & Harold [2009] FamCA 155
Marvel & Marvel (No. 2) [2010] FamCAFC 101

APPLICANT: Ms Thaxton

RESPONDENT: Mr Hallows

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta

FILE NUMBER: SYC 4065 of 2008

DATE DELIVERED: 12 November 2014

PLACE DELIVERED: Dubbo

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 7 November 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mahony Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta

Orders

1. That the mother is permitted and hereby authorised to do all things necessary and to sign all necessary documents so as to procure the enrolment and attendance of the child C born … 2003 at the X Christian School commencing in the 2015 academic year.

2. That the mother’s costs of the present application be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Thaxton & Hallows has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 4065  of 2008

Ms Thaxton

Applicant

And

Mr Hallows

Respondent

REASONS FOR JUDGMENT

1. The present application is a discrete interim parenting application for determination in relation to the schooling arrangements for the eldest child of the parties’ relationship, C (“the child”), born in 2003.

2. The child completes primary school this year and is to commence his high school education in the 2015 academic year.

3. The applicant mother’s application came before the court by reason of her application in a case filed on 27 June 2014. In that application the mother in summary sought the following orders:

   a)That the child [C] born … 2003 be authorised to commence and attend year seven in 2015 at [X] Christian School;

   b)That failing the previous order the child be authorised to commence and attend year seven in 2015 at [Z] High School;

   c)That each party within seven days of this order do all things necessary to accept and confirm the child’s enrolment for 2015 including but not limited to signing all required documentation and paying all monies;

   d)That the parties equally bear all costs associated with the child attending the school including but not limited to all enrolment fees, school fees, book fees and school uniform expenses;

   e)That the respondent father pay the applicant mother’s costs in relation to the application.

4. On 8 October 2014 the applicant mother filed an amended application in a case. In the amended application she sought an additional order that provided for the youngest child of the parties N born in 2005 to commence and attend year five in 2015 at the X Christian School.

5. The mother’s original application in a case relating only to the child C was before the court on 12 August 2014. On that date the court made directions for the matter to proceed to interim hearing on 10 November 2014 at 2:15pm.

6. At the outset of the hearing it was made clear to the mother that the application listed for determination related only to the eldest child and the court would not entertain the amended application in a case relating to the youngest child.

7. The mother was also informed that the question of school fees and the contributions sought by her to the school fees by the father should the child attend X Christian school was a matter for the child support agency and that there was no proper application before the court in any event.

8. The relevant principles in relation to parenting proceedings are well settled (Goode & Goode [2006] FamCA 1346).

9. Section 60B of the Act outlines the objects and principles underlying Part VII.  Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

10. Section 60CC then outlines the primarily and additional considerations that the Court is to take into account in determining what is in the best interests of the child.

11. Section 61DA provides that when making a parenting order the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. That presumption does not apply in certain circumstances. In these proceedings the parents have agreed that they should have equal shared parental responsibility. In the usual course this would require the court in the proceedings to consider the operation of section 65DAA and to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

12. The present interim issue as to schooling is one that falls to be determined by reason of the best interest considerations set out in section 60CC.

13. The question of children’s schooling was considered by the Full Court of the Family Court in Re G: Children’s Schooling [2000] FamCA 462. The Full Court in re-exercising the discretion proceeded on the basis that:

    Although there is no legal presumption in favour of the residence parent and, correspondingly, no hurdle or onus faced by the other parent, that is not to say that the reality of the children residing predominantly with one parent has no relevance.

14. Cronin J in Kirkland & Granger [2007] FamCA 1471 said:

    There is little doubt therefore that an impasse between parents relating to both current and future education is a matter within the definition of parental responsibility and one which should the parties not be able to agree upon, a court should step in to their shoes.  The Act gives no guidance as to how that decision making process is to occur save that any decision must be in the best interests of the child. Section 65D (1) says that the court may make such parenting order as it thinks proper.

15. Young J in Raymond & Harold [2009] FamCA 155 said:

    There are many reported decisions of this court dealing with the determination of the appropriate school, the most often cited of which is the decision of the Full Court in Re G: Children’s Schooling [2000] FamCA 462 where the various issues considered by that court on the schooling issue included:

    the wishes of the child, where appropriate;

    any prior agreement in relation to schooling;

    any change to the existing arrangements;

    any anxiety which the child may experience as a result of changing peer groups;

    the views of the parents about the aspect of change upon the  child;

    the travel time to school;

    the costs of education;

    any particulate issue that may have a real impact upon the child and his immediate schooling and social environment

    The above list of matters are not exhaustive. They vary from case to case and are always to be tailored to the individual needs of the child.

16. In Marvel & Marvel (No. 2) [2010] FamCAFC 101 the Full Court discussed the difficulties associated with making findings on contested evidence in interim proceedings as follows:

    120.    As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

    …

    122.    In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

    In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

    123.    Later, at paragraph 100 their Honours amplified their comments and said:

    The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

17. There are primary parenting proceedings for determination between the parties and in essence the issues for determination include the children’s time with the father, the children’s involvement in extracurricular activities, the children’s views and relationships and the impact of parental conflict and lack of communication.

18. The Family Report in these proceedings was released to the parties on 29 October 2014 and proceedings were thereafter before the court in relation to the mother’s interim application as to schooling and for case management directions on 7 November 2014.

19. On 7 November 2014 the interim application proceeded to hearing and judgment was reserved. Otherwise on that day the court made trial directions to facilitate the matter obtaining hearing dates for final hearing as to the parenting issues in April/May 2015.

20. It was readily apparent having regard to the eldest child commencing high school in 2015 that at least on an interim basis arrangements in relation to his schooling needed to be determined. Those arrangements of course can change consequent upon a final hearing.

The mother’s evidence

1. The mother is 45 years of age and the father 44 years of age.

2. The mother and father commenced a relationship in 2000, married in late 2000 and separated 2006.

3. The mother presently resides at Suburb A in the southern suburbs of Sydney and is in a relationship with a Mr T.

4. The father resides in Town D, a community south of Sydney and about one hour’s drive from where the mother resides. The father is in a relationship with  Ms W.

5. The mother is in part-time employment in financial services and works on Thursdays and Fridays from 8:30 am until 3:00 pm. The father is in employment at a university and whilst working 35 hours per week his work hours are flexible.

6. Current parenting arrangements in relation to the children are that the children spend time with the father during school term in week one from after school Friday to the commencement of school Monday, in week two from after school Wednesday to the commencement of school Thursday, in week three from after school Friday to the commencement of school Monday and in week four from after school Wednesday to the commencement of school Thursday in addition to time on special occasions and school holidays.

7. The child C, indeed both children, currently attend S Public School where the eldest child is in year 6.

8. The mother asserts that the child has expressed to her a desire to attend the X Christian School for his high school education.

9. It is the mother’s wish that the child be enrolled in either as her first preference X Christian School or her second preference at Z High School.

10. In anticipation of the court’s determination the child has been enrolled in both schools and a place is available for him to commence in either school in the 2015 academic year.

11. In early May 2014 the mother received correspondence from the Z School confirming that the child had been successful in testing for the school’s selective class stream and he was offered a position in that stream for 2015.

12. The mother expresses her concern that the child has been placed under undue pressure as a consequence of the late determination of his high schooling arrangements. The mother says the child has complained to her that the father “never cares about what I want. He never listens to me and tells me he knows best.”

13. The mother says that her preference for the Christian school is that it is reflective of the child’s preference especially in circumstances where many of the child’s friends from his church group and from his current public school have commenced to attend the Christian school or will do so. The child’s cousin currently attends the Christian school and is in year nine.

14. On the other hand the child does not know anyone who would be attending Z High School in 2015. His present primary school at S is not in the catchment area for Z High School.

15. The Christian school is an independent, Christian, non-denominational school. The mother considers that the school would provide to the child an education that supports his Christian faith. The mother took the opportunity of attending the parent school open day at the Christian school. To her observation the classroom environment felt much more structured than at the child’s present primary school and she observed at the Christian school a very respectful environment and was impressed by the way the teachers spoke to the students.

16. The mother has taken the opportunity of meeting with staff at the Christian school, reviewing the enrolment package and the school’s website. The school offers a pastoral care program where one teacher will monitor the child’s progress across all subjects and his general well-being. This is done in the context of small pastoral care classes that are gender-based.

17. The mother considers that the child will thrive in an environment where his needs are monitored on such a personal level and where a merit and discipline system is utilised to encourage students towards positive efforts and to discourage poor behaviours.

18. The Christian school also offers to the top 25 per cent of students a grouping into smaller numeracy and literacy groups for extension work to ensure students are given opportunity to meet their potential. In circumstances where the child has been accepted into the selective class stream at the Z High School it would be reasonable to infer that this grouping would be available to the child should he commence at the Christian school. The Christian school also offers to students a unitised “gifted and talented” program where students are encouraged in particular areas. The child has been involved in some of these programs at his current primary school. The child further participates presently in the “Maths Olympiad” which is also offered at the Christian school.

19. The Christian school offers a range of extracurricular activities including a number of sporting groups, music ensembles, school productions, theatre sports, engagement in the Duke of Edinburgh program and mock trials. The mother concedes that the Z School also provides a number of the same programs but she has attended the open evening at Z School and to her observation the Christian school has a greater variety of facilities and resources with respect to these programs.

20. In particular the Christian school offers private tuition for many instruments including the cello, in which the child is more than competent, as well strings and other ensembles, multiple rehearsal and music rooms and a recording studio. Tuition in the cello is not available to the child at the Z School.

21. The mother asserts the father does not attend the child’s cello performances, even the festival which occurs near the father’s home. The child’s extracurricular engagement with the cello has been the source of some conflict between the parties.

22. The Christian school is approximately 10 minutes from the mother’s home and the child would be able to catch a bus that leaves from and returns to Suburb A each day. There are a number of children from the child’s church group who currently do the same and the child would be able to travel to and from school with friends. Z High School is also accessible by bus.

23. The Christian school also provides a school bus that departs the school each afternoon and takes students to Town P which is only about 25 minutes from the father’s place of employment. There is also a school bus that facilitates the collection of children from Town P in the morning to take them to school. This would be of significant utility to the father if both children ultimately attend the Christian school as sought by the mother.

24. There is little difference between the father’s prospective travel time to the Christian school or to Z High School.

25. The mother understands that it is the father’s preference that the child attend Z High School. However the mother expresses her reservations that the father has for his part not undertaken any investigations into the child’s proposed high school enrolments. She asserts that he has had little involvement in the children’s schooling to date and that he has not attended events such as parent teacher nights, meet the teacher nights, school award ceremonies, and performing arts evenings. She complains that he has not facilitated the completion of the children’s home work when the children have been with him.

26. The mother has provided a ranking for both schools as provided by the Better Education website through the NSW government. The X Christian School ranks significantly higher than Z High School and has a much more significant percentage of the distinguished achievers than Z High School, notwithstanding the selective stream offered by Z High School.

27. Ms G, a friend of the mother gives evidence that her children aged 11 and nine attend the X Christian School and they are friends with the eldest child through activities at the church. Her observation is that the Christian school provides a loving and nurturing environment to all students to help them develop spiritually and take responsibility for themselves and their actions. Ms G also gives evidence that the mother has been a member of her congregation for many years.

28. The mother’s application is also supported by Ms Y. She has two children aged 15 and 12. Her family has known the children C and N through their involvement with the church over a period of about eight years. Her daughters now attend the Christian school and are in years 10 and 7 respectively. She speaks highly of the Christian school in terms of its pastoral care program, biblical teaching, solid role models amongst the teaching staff, excellent academic programs and smaller year group sizings.

29. The mother’s application is also supported by her sister-in-law Ms L who has two children H and B who were both students at the Christian school.  H has progressed to a specialist high school to complete years 11 and 12. B remains a student at the school. Ms L speaks in glowing terms of her children’s time at the Christian school.

The father’s evidence

1. The father seeks an order that the child attend the Z High School, a school that he asserts “is perfectly acceptable to me as a government school of good repute”.

2. The father opposes the child attending the Christian school on two grounds:

   a)He disagrees on ethical grounds with private education; disagreeing with the sense of entitlement and a privilege that he feels private schooling engenders, notwithstanding that he himself attended a private Christian school;

   b)He is concerned with the amount of religious indoctrination that the children are receiving when in their mother’s care and the child attending the Christian school would further the mother’s “control and brainwashing of the children”. 

1. The father expresses a wish for the children not to receive an education “steeped in narrow dogmatism”. He believes that a dogmatic Christian education will drive a wedge between him and the children as his beliefs are philosophical and questioning in nature.

2. The father asserts that the local public school, Z High School, is “by all accounts excellent”. Yet he provides no evidence as to any enquiries made by him or any objective material available so as to support this contention.

3. The father asserts that the children attending the Christian school would be extremely detrimental to his relationship with them. The basis of this contention is not made clear in his evidence in opposition to the mother’s proposal.

Discussion

1. The mother complains of the father’s lack of engagement in the children’s life, particularly their current schooling and extracurricular activities. The paucity of objective information relied upon by the father in support of his proposal for the eldest child’s schooling is reflective of the mother’s complaint as to lack of engagement.

2. The father provides no evidence to suggest that he has attended at either school, made enquiries of the teaching staff, attended school open days, given consideration to the objective evidence as to the respective schools’ academic performance or considered facilities and resources available that particularly reflect his perception as to the needs of his children especially his eldest child  C.

3. The CAPIA: the parties attended upon family consultant Ms M for the purposes of the preparation of a child responsive program memorandum. That memorandum was dated 24 February 2014 (Exh B). At the time of interviews in January 2014, the child C presented as an articulate, polite and thoughtful child. He informed the family consultant that he had played the cello for five years. He had little memory of his parents living together, they having separated when he was two years old. He complained about some unreasonableness on the part of his father and it is apparent that the father has involved at least the eldest child in the conflict between himself and the mother. The eldest child clearly expressed a wish to the family consultant to attend the Christian school because it had a good music program. The child explained to the family consultant that the Christian school was a religious school and while his mother was religious, his father was not. The child further reported to the family consultant that he attended church with his mother every second Sunday and that he enjoyed doing so. It is readily apparent from the child responsive memorandum that notwithstanding the years since separation the parents continue to have an ongoing conflictual relationship that is significantly detrimental to the children.

4. The Family Report: the family report in these proceedings was prepared by family consultant Ms M and dated 27 October 2014. A theme of ongoing parental conflict and the father’s lack of engagement in the children’s schooling and other activities remains a constant.  The father complained that he was concerned that there was a “void” and “disconnect” between him and the children. He said to the family consultant this had been building for years and that the children seemed distant from him. The family reporter observes that the children appear to have established relationships with both parents and with their respective parent’s partners. At the time of the family report interviews the family reporter noted that the relationship between the eldest child and the father had improved and there was less conflict between them. However the family report throws no other light on the present issue for determination.

5. By reason of the primary parenting matters awaiting the allocation of final trial dates, the discrete issue for determination is to be determined by a consideration of the child’s best interests and the factors set out in section 60CC of the Act and other relevant factors identified as discreetly relevant to schooling issues referred to above.

6. An examination of the primary considerations set out in section 60CC (2) is of no utility in the context of this present application.

7. The child C expressed a clear and unequivocal wish to be able to attend the X Christian School when in interview with the family consultant for the purposes of the preparation of the child responsive memorandum. The mother gives clear evidence that the child has expressed a similar wish to her. The father adduces no evidence to suggest that what the child conveyed to the family consultant was not the case. The child is now completing his primary school education and faces the commencement of his high school career. The child is engaged in music and has seen the opportunities afforded to him at the Christian school as a factor in his expressed wish. It is appropriate that the wishes of the child in these circumstances be given significant weight.

8. Both parents have well established relationships with both children. It appears that the family report raises questions as to underlying issues particularly between the father and the eldest child. C has established relationships with other children who attend the Christian school and their families. Those relationships have accrued it appears over a period of some years and arise from the ongoing engagement with the local church and its ministries.

9. The mother complains as to the father’s lack of engagement in the children’s education and their various extracurricular activities. A determination as to this issue will have to wait a contested hearing where the court can make determinations as to fact. However it is apparent from the child responsive memorandum and the family report that the father has to an extent failed to engage in various ways with the children, particularly the musical activities of the eldest child.

10. It is not contended that either of the parents has failed to fulfil their obligations to maintain the children or particularly the child in question. There is no issue raised by either party as to any adverse effect in the child’s circumstances as a consequence of their respective schooling proposals. Nor is there any contention as to any additional difficulty or expense in the child maintaining contact with both parents.

11. Questions as to the capacity of each of the child’s parents to provide for the needs of the child including emotional and intellectual needs substantially are a matter for determination at a contested final hearing. However the evidence in these interim proceedings reflecting the father’s lack of enquiry in relation to the issue for determination as opposed to the mother’s significant engagement in a determination as to her preference reflects well on the mother’s proposal and the reasons for her choice of school.

12. The maturity of the child C has been referred to above in the context of his wishes.

13. None of the other factors set out in section 60CC(3) offer any assistance in the context of the present issue for determination.

14. As to other relevant factors that have been identified historically:

    a)Any anxiety which the child may experience as a result of changing peer groups:

    The evidence is indicative of the child having established relationships with other children who are or will be attending the X Christian School. On the other hand there is no evidence to suggest that he would have any of his peer group attending at the school proposed by the father. As was pointed out by the Independent Children’s Lawyer, the child’s attendance at the X Christian School would afford a continuation of the child’s presently developed “social capital” in terms of relationships and peer group.

    b)The views of the parents about the aspect of change upon the child;

    The mother adduces evidence as to her observations and concerns about the impact of a change of school for the child. Her evidence is clearly indicative of a preference for the X Christian School. As the child’s primary carer those views should be afforded significant weight. On the other hand the father adduces no evidence but relies upon his own personal views and opinions. He has failed to consider the impact of his proposal upon the child.

    c)The travel time to school:

    This is not a relevant consideration as travel times are similar in respect to both proposals.

    d)The costs of education:

    This is not a relevant consideration. It is a matter for the child support agency to determine whether in circumstances where the school is solely the choice of the mother, the father should bear a liability or any liability for the school fees in respect to the schooling choice of the mother.

    e)Any particular issue that may have a real impact upon the child and his immediate schooling and social environment:

    Particular issues that reflect favourably on the mother’s choice of school in so far as the eldest child is concerned are the child’s involvement in music, his established peer groups that have significant association with the school and the educational opportunity offered to the child in respect to a school with a significantly smaller and focused school community.

15. As has been said before in relation to the issue of schooling “the above list of matters is not exhaustive. They vary from case to case and are always to be tailored to the individual needs of the child.”

16. In considering the matters discussed above the best interests of the child would be served by the child attending the X Christian School.

17. Orders will be made accordingly.

18. It is appropriate that the question of the mother’s costs be reserved to final trial.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 12 November 2014.

Associate: 

Date:  12 November 2014