Tonks and Tonks

[2014] FCCA 2872

FEDERAL CIRCUIT COURT OF AUSTRALIA

TONKS & TONKS [2014] FCCA 2872

Catchwords:
FAMILY LAW – Children – child's schooling – interim parenting orders – best interests of the child – daughter aged 11 years about to enter high school – education – choice of school – treatment of child’s wishes.

PRACTICE AND PROCEDURE – Documents – affidavits – all affidavits filed in proceedings before the Court must comply with the Federal Circuit Court Rules 2001.

Legislation:

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

Federal Circuit Court Rules 2001, rr.2.01, 15.25

Cases cited:
Re G: Children’s Schooling [2000] FamCA 462; (2002) 26 Fam LR 143; FLC 93-025
Rice & Asplund (1979) FLC 90-725

Applicant: MS TONKS

Respondent: MR TONKS

File Number: SYC 1475 of 2013

Judgment of: Judge Scarlett

Hearing date: 1 December 2014

Date of Last Submission: 1 December 2014

Delivered at: Sydney

Delivered on: 10 December 2014

REPRESENTATION

Solicitor for the Applicant: Mr Blumberg

Solicitors for the Applicant: Blackman Legal

Respondent: In person

ORDERS

UNTIL FURTHER ORDER

1. The Applicant mother and the Respondent father must do all things and sign all documents necessary to enrol the child X born (omitted) 2003 at (omitted) College at (omitted) in the State of New South Wales to commence school at the beginning of the first school term in January 2015.

2. The parties are restrained from withdrawing the child from the above College without leave of the Court.

3. The parties must provide to the College full details of the addresses and contact telephone numbers of each party.

4. The parties must authorise the Principal of (omitted) College to provide to each party on a regular basis copies of the child’s school reports, newsletters, invitations to attend school functions, information about school photographs and other documents usually forwarded to parents of children attending the said College.

5. The Applicant mother is to pay to the (omitted) College all tuition and other school fees for the child X at such times as those fees fall due.

6. The parties are to attend upon a Family Consultant at a time and date and at a place nominated by the Director of Child Dispute Services for interviews for the preparation of a Family Report under the provisions of section 62G of the Family Law Act 1975 relating to the care, welfare and development of the children X born (omitted) 2003 and Y born (omitted) 2008.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1475 of 2013

MS TONKS

Applicant

And

MR TONKS

Respondent

REASONS FOR JUDGMENT

Application

1. This is an application by the mother of a girl named X for an order that the child should commence her high school education at (omitted) College, a (religion omitted) high school for girls situated at (omitted). The father opposes that application and, in his Response, seeks an order that the child should attend (omitted) Public School in (omitted), which is a school within the State system.

2. In addition, the father, by his Response, seeks final orders that:

   a)He should have primary care of the children;

   b)That the children should live with him for the majority of the time; and

   c)That he should decide where the parties’ younger child, Y, will attend high school.

3. The father, in his Response, is seeking to vary final parenting orders that were made by consent as recently as 2 September 2013, which is a question that can await a final hearing. The current arrangement provides for the children to live with each parent for equal time, on a week about basis. Such a significant change in the parenting arrangements as the father proposes will need a full family report and a consideration of the rule in Rice & Asplund[1], which provides that the Court should not lightly entertain an application to reverse an earlier parenting order. The Court would need to be satisfied that there is some changed circumstance that would justify such a serious step or that a new factor had arisen.

   [1] (1979) FLC 90-725

4. That, however, is a matter for another day. The pressing issue is the question of the high school which the parties’ daughter is to attend in 2015.

Background

1. The parties were married on (omitted) 2001 and separated on 8 August 2012.

2. There are two children of the marriage. Their daughter, X, was born on (omitted) 2003. Their son, Y, was born on (omitted) 2008.

3. On 2 September 2013 the parties entered into Consent Orders resolving both the property and the parenting issues between them. The parenting orders provide that:

   a)The parties should have equal shared parental responsibility for the children;

   b)The children should live with the parties on an equal time basis, week-about during the school term with a changeover on Sunday afternoon and half of the school holidays each.

4. The Court noted that the two children were to attend the (omitted) Primary School with the mother paying the school fees.

The Current Application

1. The mother filed an Initiating Application on 11 August 2014, supported by an affidavit. In her Application the mother sought, as a matter of urgency,  the following Orders:

   1.  That the child X, born (omitted) 2003, attend high school at (omitted) College in (omitted), commencing in 2015.

   2.  That each party is hereby authorised to obtain from the child’s school all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited.

2. The father filed a Response on 28 October 2014, supported by an affidavit. In his Response he sought an order that the child should attend (omitted) Public School (to which he also refers as “(omitted) High School”) and, as has been referred to at [3] above, sought to reopen the parenting arrangements.

3. The Application was returnable on 3 November 2014. On that day the parties were directed to attend a Child Dispute Conference with a Family Consultant. They attended that conference on 21 November and, after the hearing the Application was adjourned to 1 December 2014 for hearing on the question of the child’s schooling.

4. In the Child Dispute Conference Memorandum to Court, the Family Consultant noted that the parties had not been able to reach any agreement. She set out the issues in dispute as:

   a)Which high school X should attend in 2015;

   b)How much time the children should live or spend time with each parent; and

   c)Who should decide which high school Y should attend in 2021.

5. The Family Consultant recommended that the parties should attend post-separation counselling with either Unifam or Relationships Australia and, if the issue of how much time the children should spend with each parent remains in dispute, an order for a Family Report.

6. The Family Consultant noted that:

   a)Both schools are a similar distance from the mother’s home but (omitted) High School is much closer to the father’s home than (omitted) School;

   b)The mother considers that the child will thrive in a girls school whilst the father believes that she will thrive in a co-educational school;

   c)The father has no particular preference about whether the child attends a (religion omitted) school or not, even though he is himself a practising (religion omitted), whilst the mother prefers a (religion omitted) school, and the children are currently attending a (religion omitted) primary school;

   d)The mother believes that the child will benefit from the support of her friends at (omitted) School whilst the father believes that she will be able to make new friends at (omitted) High; and

   e)Each parent referred to a range of advantages which their preferred school could offer the child.

Evidence and Submissions

1. The mother relied on her Application and her affidavits of 11 August and 3 November 2014. Her solicitor, Mr Blackman, made an oral submission on her behalf.

2. The father relied on his Response and his handwritten affidavit of 28 October 2014. He was not legally represented and made an oral submission in support of his case.

The parties’ proposals

1. The mother wishes that X should attend (omitted) College, which is a small, girls-only (religion omitted) High School. She deposes in her affidavit of 11 August that she is happy to pay all the fees associated with the child attending that school.

2. The mother refers approvingly to the school’s mission statement, which states that the school is committed to “providing young women with a quality (religion omitted) education which promotes a passion for learning, develops skills for living and inspires an ongoing search for meaning”.

3. The mother gives these reasons for preferring (omitted) College:

   a)It has high quality resources and facilities;

   b)It has a program that fosters involvement in community service activities;

   c)Many of the child’s friends will be attending the school next year;

   d)The child’s latest school report, annexed to the affidavit, indicates that she may require more assistance and support at school in order to gain more confidence;

   e)The child has expressed doubts about attending (omitted) High School as she fears that she will not know anyone there;

   f)The child’s attendance at (omitted) College will not affect the parties’ son Y’s travel arrangements;

   g)(omitted) College is an all-girls school, and whilst that feature is not high on the mother’s priority list, she believes that an all-girl environment would provide a more comfortable atmosphere for the child; and

   h)In the 2013 NSW High School Rankings (omitted) College placed 185^th and (omitted) High School placed 439^th.

4. In her later affidavit of 3 November 2014, the mother deposes that the father’s affidavit refers at paragraph [7] to primary schools, which is obviously irrelevant, as the child is about to complete her primary education.

5. The father sets out in his affidavit why he wishes his daughter to attend (omitted) High School (although he mistakenly refers to it as “(omitted) Public School”, which is the nearby primary school. It is not co-located with (omitted) High School.

6. He states that:

   a)The school is located only 100 metres from his house;

   b)He met the Principal, a Mr L, who told him that the school offers outstanding programs and opportunities;

   c)The school is a recognised leader of the teaching of literacy throughout the (omitted) area;

   d)The school has a teacher for children with learning difficulties, which (omitted) School does not have;

   e)The school has a mentoring program which teaches resilience and transition to High School;

   f)The school has an anti-bullying program;

   g)It has a safe responsible aspirational learning program;

   h)It is a government school which would give the child the option of attending TAFE courses;

   i)It is also a trade school;

   j)It has an apprenticeship scheme with (employer omitted);

   k)It has an arrangement with the University (omitted) that allows students “graduating with marks of 90 and above to attend the University and pursue their chosen careers knowing they will have a $30,000 HECS fee credit in place for their chosen field of study”;

   l)The school is very involved in the community; and

   m)There is a waiting list of over 450 to get into the school; and

   n)There is a waiting list of 80 girls from (omitted) School waiting to get into the school.

7. There were competing submissions from each parent about the relative  difficulty of the child attending school when in the care of each parent. The father produced figures (at annexure “D” to his affidavit) about the dangers of assault at railway stations in New South Wales. The mother stressed her wish for the child to be educated in the (religion omitted) Education System, noting that the father is himself a practising (religion omitted).

The Relevant law in regard to parenting applications

1. Applications to the Court about which school a child is to attend are applications for parenting orders. When the Court is considering making parenting order, it must have regard to various sections of the Family Law Act 1975 (Cth) which are to be found in Part VII of the Act. The Court should have regard to the provisions of the following sections:

   a)Section 60B, which contains the objects of Part VII and the principles underlying those objects;

   b)Section 60CA, which requires the Court to regard the best interests of the child as the paramount consideration;

   c)Section 60CC, which sets out the way that the Court determines what is in a child’s best interests;

   d)Section 61DA, which deals with the presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for him or her; and

   e)Section 65DAA, which requires the Court to consider equal time or substantial and significant time with each parent where an order has been made that the child’s parents should have equal shared parental responsibility for her (in this case).

2. All of those matters have been considered where relevant. It will be seen that, due to the limited nature of this Application, some of those considerations will not be immediately relevant.

3. The Full Court of the Family Court of Australia has considered the question of the choice of school for a child in the well-known decision of Re G: Children’s Schooling.[2] The Full Court held that there was no legal presumption in favour of the residence parent (which is not relevant here, as the child lives in a shared care arrangement), the objects and principles in s.60B are to be taken into account, although the inquiry by the Court is not limited to the consideration of the best interests of the child.

   [2] [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025

Relevant matters in section 60CC of the Family Law Act

1. The choice of school for this girl will not affect the benefit to her of a meaningful relationship, nor will it expose her to the risk of physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. The Court will give some weight to the child’s wishes, noting that she is still only eleven years old and will not attain the age of twelve years until March next year.

3. The child is reported to be happy in the care of both parents.

Equal shared parental responsibility

1. Section 61DA requires the Court to apply the presumption that it is in the child’s best interests for her parents to have equal shared parental responsibility for her. The existing parenting orders already provide for equal shared parental responsibility and neither parent seeks to change that situation at this stage. It appears that it may be an issue at a final hearing.

Section 65DAA of the Family Law Act

1. The existing parenting orders already provide that the child will spend equal time with each parent. This also may be an issue at a final hearing, noting that the father seeks to reopen the parenting arrangements.

Orders that are in the child’s best interests

1. The best interests of the child are the paramount consideration but not the only consideration.

2. It appears that each of the proposed schools would offer a beneficial learning environment for this girl. It is not the task of the Court to prepare a “league table” comparing the merits of various schools in the area. The important matter is the benefit to the child of a particular school.

3. The geographical issues do not appear to me to be particularly significant. The father’s proposal appears to be considering the long term effect of (omitted) High School on the child as well as the school’s relative proximity to his home.

4. On the other hand, the mother appears to be considering the more immediate needs of the child, particularly the major step in a child’s life that is involved in the transition from primary school to high school. She feels that the child will be more comfortable at a small (religion omitted) girls school, and this appears to be consistent with the child’s wishes, although it must be said that those wishes have come from the mother’s affidavit and not through any independent source.

5. It would appear to be likely that this child, currently attending a (religion omitted) primary school in the area, would be more likely to know a number of girls starting Year 7 at (omitted) School than those starting Year 7 at (omitted) High.

6. The mother is keen for her daughter to have a (religion omitted) education and deposes in her affidavit that she is prepared to pay the fees.[3]

   [3] Affidavit of Ms Tonks 11.8.2014 at paragraph [9]

7. The father wishes to vary the parenting orders made in September 2013 and re-open the whole question of parenting. This will require a Family Report and a final hearing. The current demands on the Court mean that a final hearing will not be able to take place for about a year, and the question of the children’s education can be considered in full at a final hearing.

8. In the meantime, I am satisfied that the child should commence her high school education at (omitted) College at the beginning of the first school term in January 2015. The mother will be responsible for the child’s school fees.

Preparation for final hearing

1. Each party will need to file a trial affidavit before the final hearing. The father’s affidavit of 28 October does not comply with the Rules and should not have been accepted for filing by the counter staff at the Registry.

2. The affidavit is deficient in a number of areas, including:

   a)It is handwritten;

   b)It is not divided into paragraphs of appropriate length; paragraph 25 of the affidavit covers some eight pages;

   c)The documents annexed to the affidavit are attached either sideways or upside down; and

   d)Annexure “B” is almost illegible and has what appears to be a yellow stain on it.

3. Rule 2.01 provides:

   (1)     A document (other than a form) to be filed must:

   (a)     be set out on 1 side only of size A4 durable white paper of good quality; and

   (b)     be legible and without erasures, blotting out or material disfigurement; and

   (c) have a margin at the left side of at least 30 mm; and

   (d)     have clear margins of at least 10 mm on the top, bottom and right sides; and

   (e) be written in English; and

   (f)     be:

   (i)     printed in a font of not less than 12 points; or

   (ii)     hand-printed clearly in ink in a way that is permanent and can be photocopied to produce a copy satisfactory to the registrar; and

   (g)     have a space of not less than 8 mm between the lines of printing.

4. Rule 15.25 relates to affidavits and says:

   The body of an affidavit must be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct part of the subject.

5. The Court expects parties to comply with those Rules.

6. The Application will be listed for final hearing.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  10 December 2014