V and J

[2004] FCWA 134

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT:	FAMILY COURT ACT 1997
LOCATION:	PERTH
CITATION:	V and J [2004] FCWA 134
CORAM:	THACKRAY J
HEARD:	19 AUGUST 2004

(ORDERS MADE

19 AUGUST 2004)

DELIVERED:	13 OCTOBER 2004
FILE NO/S:	PT 1675 of 1999
BETWEEN:	V

Applicant/Father

AND

J
Respondent/Mother

Catchwords:

Contravention - involvement of father in child's schooling

Legislation:
Family Court Act 1997

Category: Not Reportable

Representation:
Counsel:

Applicant:	Self Represented Litigant
Respondent:	Self Represented Litigant
Child Representative:	Mr L Mather

Solicitors:

Applicant:

Respondent:

Child Representative:  Legal Aid WA

Case(s) referred to in judgment(s):

Nil

1 On 19 August 2004 I dealt with the Form 18 Contravention Application filed by Mr V in relation to the conduct of Ms J.

2 The third contravention alleged by Mr V was in the following

terms:

“The respondent, Ms J due to her inappropriate actions has caused the school, the school to seek legal advice and disallow me from attending the school, interacting with J and the staff”.

3 I dismissed that contravention application on a technicality on 19 August 2004. However, I considered it important I make some considered remarks in relation to issues that arose during the conduct of the hearing. I now publish my reasons to ensure there is no further misunderstanding about the Court’s intentions in relation to some of the orders made following the defended proceedings between the parties earlier this year.

4 After the defended hearing in Bunbury lasting a number of days, I made a very large number of orders. These were designed to ensure that J V J born January 1999 has regular ongoing contact with his father. In giving my decision, I indicated that J has “a very close and loving bond with his father” and that they “have a very special relationship”. I went on to say that “Mr V has been providing a high quality of care to J during contact periods. He is most devoted to his son. He has been extremely consistent in exercising his contact and he has managed to develop a terrific rapport with his son in quite difficult circumstances”.

5 In my judgment I noted that it had been agreed by all parties that in the very near future it would be appropriate for the contact handovers to move from the supervised facility in town to handovers on Friday afternoons at J’s school. I said, “This will have the added advantage of ensuring that there is a part for J’s father to play in J’s education. It is understood by both parties that when the time is right – and it seems there might be a few weeks before the school is ready for parental assistance – J’s father will, if he wants to, be taking part in parent-help activities on the Friday before taking J back to Perth”.

6 With the consent of both parties I also made an order proposed by the Child Representative in the following terms.

“Subject to the consent of the school principal, the mother shall authorise the child’s school to provide to the father copies of all school reports and all notices from the child’s school, and advance details of any functions relating to the school, with the father to be at liberty to attend the school”.

7 In case the school was not prepared to act on the mother’s authorisation to provide copies of various documents to the father, I went on to make the following order:

“In the event that the school is not prepared to provide copies of such reports and notices, the mother shall provide copies to the father as soon as practicable”.

8 The wife wrote to the Court on 29 March 2004 seeking a large number of variations to the order of the Court. Amongst her requests were the following:

“Point number 14 –

I am asking if it would be possible to have the wording “for these specific functions” be added to the end of the final sentence. Mr V has taken this order as he can attend the school whenever they choose, resulting in the school asking for clarification on the orders from my lawyer.

Point number 14 and 15 –

Can it be left for the mother to provide reports and notices to the father as he has already upset the school and I wish for no further disruptions in our small community to affect us or J. Could the following also be added – that all communications with staff and Mr V at J’s place of schooling is to be conducted through the mother only.”

9 The Acting Principal Registrar of the Family Court responded to the correspondence in the following terms:

“Paragraph 14

The order as extracted reflects his Honour’s intentions and therefore will not be amended pursuant to the slip rule. Perusal of his Honour’s reasons indicated that it was anticipated that Mr V would be permitted to attend at the school, for example, to take part as a parent helper. Once again, however, it must be appreciated that this order does not in any way bind the school. It is a matter for the school to determine what involvement, if any, either parent will have at the school.

Paragraphs 14 and 15

The orders as extracted reflect his Honour’s intentions. Again, it should be noted that the order is not binding upon the school. If the school is not prepared to provide copies of reports and notices to Mr V then the obligations falls upon you to do so.

No order was sought for Mr V to be required to communicate with the school only through you. It is therefore not possible for the order to be rectified pursuant to the slip rule in the manner that you propose.”

10 In the meantime, the mother’s solicitors, Shaddicks Lawyers, had written to the Principal of J’s new school on 29 March 2004. I regard that letter as being a most unfortunate document which gave the Principal of the school an entirely misleading impression of the intention and effect of the orders of the Court. The school Principal sensibly sought his own advice from independent lawyers. They provided advice on 2 April 2004. I understand from the evidence that the school has subsequently (appropriately enough) acted in accordance with the advice it received.

11 The Child Representative was provided with copies of the relevant correspondence and wrote to the mother and to the Principal on 10 May 2004. I entirely agree with the views expressed by the Child Representative to the school. Lest there be any doubt in the matter, I make the following observations:

(a)	The manner in which J’s school is to organise his education and to deal with his parents is a matter entirely for the school.
(b)	J’s mother has been given the right to make decisions relating to J’s long term care, welfare and development, so long as she consults with J’s father before making any such decisions. It gives her no right to give instructions to the school in relation to the way in which the school is to deal with J’s father.
(c)	The intention of the Court is that J’s father would be as involved in J’s education as any other loving and committed parent would be involved. The Court accepts, however, that matters relating to the child’s education should be left to the Principal and teachers. Nothing the Court says should interfere in what the school determines is best for J’s education. However, on the information available to the Court, it would appear to be very much in J’s interests for his father to have ongoing and meaningful involvement in his education.

12 The advice given by Beere May & Meyer to the Principal of J’s school in their letter dated 2 April 2004 is wrong in almost every material respect. Specifically:

(a)	The mother is not “the custodial parent”. Concepts of “custody” were removed from the Family Law Act in 1995. Previously, parents who had “custody” of children also had the right to make a variety of decisions associated with the care and upbringing of the child. Those rights no longer exist. The mother has only those rights conferred upon her by the terms of the Court order.
(b)	The school is not required to send all correspondence and communications in relation to J to his mother. Ideally, the school would copy to the father any correspondence sent to the mother or/for the father, although that is a matter for the school to determine. The school may communicate either with the mother or with the father or with both of them, as the school sees fit.
(c)	The school may send the Gazette or other school publications to the father if it wishes to do so regardless of whether the mother has provided her consent. The advice given to the contrary by the school’s solicitors is in direct conflict with paragraph 14 of the orders made by the Court.
(d)	The school may allow the father access to the school or contact with J at the school whenever the Principal considers fit. The father’s right to attend at the school is not governed by the terms of the Court order although it would be anticipated that he would probably only attend the school on days when he is collecting J, when he has some arrangement with the school to attend to help in the class or when there is a function that parents would ordinarily attend.

13 It is the Court’s intention that a copy of these reasons will be provided by the Child Representative to the school. In the future, if the school has any doubts about its position in relation to matters such as these, it may consider it more appropriate to seek guidance from the Child Representative rather than from its own legal representatives. However, that too is entirely a matter for the school to determine.

14 I am concerned that the actions of the mother and the advice received by the Principal from the mother’s solicitors and from the school’s solicitors may have resulted in the father’s association with J’s new school having got off to “a bad start”. I have made no findings about the manner in which the father has behaved on his visits to the school. However, he would have been justified in being exceedingly upset and distressed as a result of the orders of the Court being interpreted in the way they have been.

15 I repeat the comments made above concerning my earlier findings about J’s father. He has a great deal to offer the boy and could be of considerable assistance to the school in assisting in J’s education. The Court trusts that these explanatory remarks will assist the school in the future to understand the Court’s intentions. For all intents and purposes the mother has no greater “rights” in relation to J than does the father save where there is an issue that relates to his “long term care, welfare and development”. There should be very few such issues which arise in relation to J’s education.

I certify that the preceding [15] paragraphs are a true copy of the reasons

for

judgment delivered by this Honourable Court

Associate