THEOBOLD & SEARBY

[2020] FCCA 2727

FEDERAL CIRCUIT COURT OF AUSTRALIA

THEOBOLD & SEARBY [2020] FCCA 2727

Catchwords:
FAMILY LAW – Schooling – child commencing high school in 2021 – father seeks to change the child’s school – the mother wishes for the child to remain at her current private Catholic school – child with Autism Spectrum Disorder, Selective Mutism and Executive Functioning Disorder – best interests of the child – capacity of the parents to pay – evidence deficient.

Legislation:

Family Law Act 1975 ss.60CC

Cases cited:

Bilz & Breugelman [2013] FamCA 578

Applicant: MR THEOBOLD

Respondent: MS SEARBY

File Number: MLC 6228 of 2018

Judgment of: Judge Blake

Hearing date: 31 August 2020

Date of Last Submission: 31 August 2020

Delivered at: Melbourne

Delivered on: 2 October 2020

REPRESENTATION

Solicitor Advocate for the Applicant: Ms D’Angelo

Solicitors for the Applicant: Hartleys Lawyers

Solicitor Advocate for the Respondent: Ms La Greca

Solicitors for the Respondent:	Pentana Stanton Lawyers
Counsel for the Independent Children’s Lawyer	Ms Jenkinson
Solicitors for the Independent Children’s Lawyer	Altavilla Family Law

ORDERS

1. The child X, born in 2008 (‘X’) continue to be enrolled in and attend B School, C Street, Suburb D (‘B School’) from the date of these Orders.

2. The parties do all things necessary to cause X to be enrolled to attend secondary school at B School from Year 7 in 2021.

3. The Applicant Father be responsible for payment of all B School fees and costs for the years 2021 and 2022.

4. From 2023 onwards until completion of Year 12 by X, the B School fees and costs be paid directly to the provider as follows:

   (a)The Father pay 75%; and

   (b)The Mother pay 25%.

5. For the purposes of orders 3 and 4 above, the costs of sending X to B School include, but are not limited to, all costs such as school fees uniforms, laptop and/or tablet computers, uniforms, excursions, sports equipment and musical instruments.

6. Pending further order of the Court, the children Y born in 2010 and Z born in 2012 continue to be enrolled in and attend E School, F Road, Suburb G.

7. The Application in a Case filed by the Father on 5 March 2020 be otherwise dismissed.

8. Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

NOTATION

Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6228 of 2018

MR THEOBOLD

Applicant

And

MS SEARBY

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application made by the Father.  He seeks, primarily, an order that the child, X born in 2008 (‘X’) attend H School or, if not accepted there, J School, for her secondary education commencing in Year 7 in 2021.

2. That application is opposed by the Mother.  She seeks an order that X continue to attend B School, a private Catholic girls’ school in Suburb D including for her secondary education years.

3. For the reasons that follow, I have decided that X should remain enrolled at B School, including for her high school years which commence in 2021, pending any further order of this Court.

Background

1. The Father is currently 47 years of age.  The Mother is currently 46 years of age.

2. There are three children of the relationship.  X, presently aged 12 years, is in Grade 6 and currently attends B School. She has two brothers, Y, born in 2010 who is currently aged 10 years (‘Y’) and Z, born in 2012 who is currently aged 8 years (‘Z’). 

3. The Mother was the primary carer of the children from birth until 2019.  In 2019, the children were placed in the care of the Father.  Currently, the children remain in the care of the Father, and spend unsupervised, overnight time with the Mother.

4. X has attended B School since Grade 1.  She suffers from Autism Spectrum Disorder, Selective Mutism and Executive Functioning Disorder.  She is easily overwhelmed, which can cause her distress. At B School, she has had the benefit of a teacher’s aide who has worked with her one-on-one since grade 1.

5. Despite the challenges which she confronts, it appears that X is well settled at B School and has performed well.  She is a Junior School House Sports Captain.

6. There does not seem to be any dispute between the parents that X is performing well at B School.  The Father says in his evidence that he has no issues with X being enrolled in B School. He says her behaviour is improving, and that her reports are on par with earlier reports. His submission, however, is that he cannot commit to the enrolment given his current financial position.   It is for that reason that he seeks orders that X be enrolled at either H School or J School.  

7. The Mother seeks orders not only that X continue to attend B School, but that the Father pay all the school fees for X for 2021 and 2022. Thereafter, the Mother proposes that the Father pay 75% of the school fees, and she pay 25% of the fees. While that is her primary submission, she has indicated a preparedness to pay as much as 50% of the school fees for X.

Issues in Dispute

1. The issues in dispute are as follows:

   a)Whether the parties, and in particular the Father, have capacity to pay the school fees at B School so that X can continue her secondary education at that school; and

   b)If the Court is of the view that X ought not to be enrolled to attend B School, whether X should be enrolled at either H School, or J School.

2. Each of the parties also sought orders for schooling in relation to Y and Z. The parties are in agreement that Y and Z should continue their primary school education at their current school, E School. The Mother sought an order that Y and Z be enrolled in a private Catholic boys’ high school to be agreed.  The Father sought an order that the boys attend either H School, or J School, whichever high school the Court ultimately selected for X.

Relevant Principles

1. A decision as to schooling falls within the ambit of a parenting order.  The paramount consideration is what is in X’s best interests.

2. The best interests considerations are set out in section 60CC of the Family Law Act 1975 (‘Act’). The Court is also to have regard to the objects of Part VII of the Act when making any order.

3. In Bilz & Breugelman [2013] FamCA 578, Austin J summarised the principles in relation to the approach the Court should take in relation to deciding schooling disputes. At paragraphs [81] to [83], Austin J stated as follows:

   ‘[81] Schooling disputes are not resolved by application of a “blanket presumption” or preference for the views held by the residential parent (Re G at [29], [45], [65]). The Court is required to apply the objects and principles of Part VII of the Act and to consider the statutory criteria in forming conclusions about the child’s best interests (Re G at [66] 66]-[68]).

   [82] That is probably self-evident, but other more generalised observations were made by the Full Court. In particular, the process of evaluation should not entail an assessment of the relative merits of the schools preferred by the parties, at least in circumstances where the competing schools are prima facie satisfactory (Re G at [91]-[92]). Ordinarily, it will be in the child’s best interests to attend a school close to his or her residence, and further, it is proper to consider evidence as to any greater effect of the decision upon the resident rather than non-resident parent (Re Gat [92]-[93]), but that does not mean the convenience of the non-resident parent is ignored (Eden-Proust at [56]-[63]).While the views of the child are relevant to the inquiry, as s 60CC(3)(a) of the Act now stipulates, those views are usually not determinative. That is because, unless a child is actively unhappy in a particular school environment, it is not at all unusual for the child to express a desire to remain at his or her existing school (see Re G at [96]).

   [83]  There is conflict in the authorities about whether any prior agreement between the parties concerning the child’s schooling is influential (see Re G at [92]; Eden-Proust at [48]).There also seems a difference of opinion about the need to refer specifically to each of the factors enumerated in s 60CC or whether it is permissible to simply analyse the evidence discursively with those factors in mind (see Re G at [67]-[90]; Eden-Proust at [69]).’

Consideration

1. This is a matter in which the parties were ordered by the Court to file affidavit evidence on which they proposed to rely prior to the hearing.  Despite that, the evidence placed before the Court in relation to the capacity of these parents to pay the school fees at B School was deficient. 

2. The Father comes before the Court claiming an incapacity to pay the school fees at B School.  Despite that claim, he failed to place before this Court any evidence regarding his current income, details of the expenses he claims to incur in respect of the children, or information about other expenses (such as rent and food) that he is required to meet.  The Mother alleges that the Father receives National Disability Insurance Scheme (‘NDIS’) funding in respect of Z and X.  That allegation was not disputed by the Father.  Despite that, he has not provided any evidence as to the amounts he receives for either child from the NDIS.   

3. Alternatively, the Mother comes before the Court on an income that, on any view, means she could not afford to pay the fees for X on her own.  She claims, however, that the maternal grandmother will support her.  The Court does not have before it, however, any affidavit from the maternal grandmother.  Instead, the Court has before it a letter from the maternal grandmother, attached to the Mother’s affidavit.  The letter does no more than offer to ‘extend [her] financial support’ to the Mother.  Further, the Mother refers to the value of shares held by the maternal grandmother as proof of the maternal grandmother’s capacity to assist with school fees.  The evidence before the Court to support this, however, is not evidence of ownership. Rather, the evidence is a statement as to the maternal grandmother’s participation in a dividend reinvestment plan. If that were not enough, the date of this document is 31 March 2020, some five months before the date of the hearing. In the circumstances, this is hardly proof of what the maternal grandmother currently owns or the value of any holdings.

4. If all of the above were not enough, neither party placed before the Court any evidence, in admissible form, as to the school fees at B School. The Court had to rely on the Independent Children’s Lawyer checking the current fee levels on a webpage during the course of the hearing.  Quite how the parties can reasonably expect the Court to determine issues such as capacity to pay private school fees, with the evidence in the state it is in, is perplexing.

5. I raised evidentiary deficiencies with the parties at the outset of the hearing.  Notwithstanding my comments, the Father indicated he wished to proceed with the application.  I am therefore left to determine the matter as best I can on the evidence before me.

6. Turning to the evidence, there is no dispute in the evidence as to the following and I accept it:

   a)The Father’s taxable (or gross) income for the 2019 financial year according to a child support assessment conducted on 24 August 2020 was $138,717;

   b)The Father pays child support to the Mother of $375 per fortnight which equates to approximately to $9,750 per year.

7. The Independent Children’s Lawyer informed the Court of the following from the bar table during the course of the hearing:

   a)tax payable by the Father based on his 2019 salary disclosed to child support would be approximately $38,000 based on the ATO tax calculator;

   b)subtracting tax paid from the gross income would leave the Father with net income of $100,000 per year;

   c)the school fees at B School are $27,000 for a year 12 student.

8. If the Father were to pay the whole of the school fees for B School and continue to pay child support in the amount assessed, his net income would equate to approximately $63,000 per annum.  That equates to a net weekly income, after the expenses mentioned above, of approximately $1,200 per week.  If the Father were to seek to credit the school fees against child support, it may mean that his net weekly income would increase.  I am not in a position to assess this, however, given the state of the evidence.  I therefore proceed on the basis that the Father’s net weekly income from employment in the situation described above would be, at a minimum, $1,200 per week.

9. There is then the matter of the NDIS funding received by the Father, which he acknowledges.  I do not know, because the Father has not included information about it, the amount he receives from NDIS.  I therefore cannot make any precise finding as to the quantum of the Father’s income including NDIS funding.  I am prepared to infer, however, that the assistance received from the NDIS further bolsters the Father’s income and ability to support the children.

10. The Mother submitted that I should take into account the capital amount that the Father attained from the property settlement between the parties.  That amount is said to be $299,000.  I decline to take this into account in assessing the Father’s income.  I would no more do this than suggest that the Mother could fund the school fees by selling the property that she now owns.

11. I turn next to deal with the Father’s expenses.  As I have noted above, there is limited, if any, information in the Father’s affidavit about the expenses that he incurs either in respect of himself, or the children.  The closest he gets is a bald assertion in his affidavit that he paid all of the financial expenses for the children.  Even this assertion is contested.   The Mother’s evidence is that she has paid for, among other things, the children’s health insurance and school uniforms.

12. Given the evidence and findings above, I am satisfied  that the Father has the capacity to meet either the whole of the school fees for B School, or a portion of them. 

13. The Mother’s taxable income for the 2020 financial year was $27,098.  She has not in her affidavit deposed to the expenses she incurs.  Self-evidently, however, she cannot pay the whole of the school fees for B School for X on her income.  There is also a real question as to whether she could meet either 25% or 50% of the B School fees for X.

14. The Mother’s answer to this is twofold. First, she says that she could rent out her present accommodation and receive the rental income from it, and go to live with her mother.  There is no evidence before me as to what the rent would be.  Second, she says that her mother will extend financial support.  As I have noted above, the evidence from the maternal grandmother is inadequate.  She has not been placed on affidavit.

15. Ultimately, I am asked to accept what amounts to nothing more than an assurance that the Mother, with the support of the maternal grandmother, one way or the other, will meet up to 50% of X’s school fees at B School.

16. I turn then to consider the best interests of X.  As I noted earlier, the unchallenged evidence is that X is doing well at B School.  She has settled in well.  She has the benefit of a teacher’s aide on a one-on-one basis.  Her behaviour has improved and her performance overall is steady.  While no direct evidence was placed before me in respect of this, I would expect that any change to her circumstances would be disruptive to X.  Such disruption may include disruption to her academic progress, confidence and social development.

17. Within the context above, I have little difficulty in concluding that it is in the best interests of X to attend B School.  It is clearly in her best interest to remain there.

18. As I have noted above, the Father has the capacity to meet the whole of the school fees for X on the evidence before me.  His capacity might well be greater on the basis of the undisclosed NDIS support that he receives.  The Mother clearly does not have the capacity to pay the whole of the fees for B School.  Her submissions amount to little more than an assertion that she can pay, at most, 50% of the B School fees with the assistance of her mother.

19. In my view, this is a case where, given the Father’s income, he should pay the substantial part of the fees.  Given the Mother’s wish for X to remain at B School, however, she should also contribute.  In my view, the Mother’s proposal that the Father contribute 75% of the fees and that she contribute 25% of the fees is appropriate.  Such an arrangement should commence as proposed by the Mother – in 2023. Until that time, the Father should continue to pay all school fees and costs. He has the capacity to do so, the Mother does not. Put simply, the evidence does not disclose the Father has an incapacity to pay.

20. It is regrettable that the evidence of the parties was not properly prepared.  X finishes grade 6 this year.  That is a natural point to change the school of a child in a way that minimises disruption.   Given the poor quality of the evidence, and the apparent differences between the parties, the Court gave consideration to making the order sought by the Father because it had the potential to minimise any future disruption for X. Ultimately, however, the Court cannot do that in circumstances where it has found that it is in X’s best interest to remain at B School, and where the Father has the capacity to meet the fees.  The parties now need to make the arrangement work.  X’s best interests may suffer if she is required to change schools later in her secondary education years.

21. Finally, the parties also sought that orders be made in relation to the secondary education arrangements of Y and Z.  I decline to make such orders for the following reasons.  First, I was not addressed on this matter in any detail by any of the representatives present at the hearing.  Secondly, the financial evidence before the Court to enable a finding to be made as to each parent’s capacity to pay is deficient.  Third, the decision I have made today in relation to X and payment of her school fees is likely to affect the parties’ capacity to incur other fees.  Whether that is the case or remains the case will only be known if further evidence is put before the Court.  Finally, this matter is listed for final hearing in June next year.  There is no immediate rush to address, among other things, secondary school issues for Y and Z given their ages.  They are matters that can be dealt with in the final hearing if need be. 

22. Accordingly, the only order I will make for Y and Z is that they continue to attend their present primary school, pending any further order of this Court.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Blake

Associate: 

Date: 2 October 2020