Vance and Riley - [2008] FMCAfam 578

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VANCE & RILEY

[2008] FMCAfam 578

FAMILY LAW – Dispute about which secondary school child attends – impecuniosity of mother – child to attend more expensive school if father able to afford it.

Family Law Act 1975, s.60CC

Applicant:

MR VANCE

Respondent:

MS RILEY

File Number:

DGC 1585 of 2007

Judgment of:

Burchardt FM

Hearing dates:

20 & 21 April 2008

Date of Last Submission:

21 April 2008

Delivered at:

Melbourne

Delivered on:

20 June 2008

REPRESENTATION

Counsel for the Applicant:

Mr Williams

Solicitors for the Applicant:

Mason Sier Turnbull

Counsel for the Respondent:

Ms J.S. Elleray

Solicitors for the Respondent:

Belleli King & Associates

Independent Children's Lawyer Counsel:

Ms A.L. O'Connell

Independent Children's Lawyer Solicitor:

Robin Harrison & Associates

THE COURT ORDERS THAT:

The child [B] attend [M] School in [X] from the beginning of the school year in 2009, with the mother to pay $4,000.00 towards the school fees and the father to pay the balance.
There be a departure order of the husband’s current child support assessment so that the husband’s present and future child support be assessed at nil whilst he is responsible for 50% or any sum exceeding 50% of the school fees and ancillary costs of [B]’s enrolment at
[M] School.
There be a departure order in relation to any past assessments whereby the husband has been liable to pay child support from 2001 so that any arrears, excluding penalties, standing in the name of the husband are assessed at nil.
The amount of $4,000.00 referred to in order 1 be increased by reference to the CPI on an annual basis. The first increase will be the increase in the CPI from the date of these orders to the quarterly CPI figure for the September quarter 2009, adjusted annually thereafter to the successive September figures.
The mother is to pay her share of the fees directly to the school in December of each year.
The school not be changed ([B] not be removed) without 28 days’ notice in writing given to the mother.
The mother not approach [A] without [A]’s prior consent in writing.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

DGC 1585 of 2007

MR VANCE

Applicant

And

MS RILEY

Respondent

REASONS FOR JUDGMENT

The Applicant Mr Vance is the father of [B] (“[B]”) who was born in 1997. [B] is now in her last year of primary school. Mr Vance wants her to go to [M] School in [X] for her secondary education.
The Respondent mother Ms Riley wants [B] to go to [C] School at [Y].
Orders were made on 21 November 2007 by consent which resolved all other parenting disputes between the parties in relation to not only [B] but also in relation to another child of the relationship, namely, [A], born in 1991. All that remains is this relatively short point as to which school [B] goes, together with a minor ancillary point about child support payments.
It is a measure of the intensity of the dispute that this seemingly small issue should have taken several days of hearing and given rise to the necessity of the appointment of an Independent Children's Lawyer, the commissioning of two family reports and a further independent expert report as to the merits of the two schools.
For the reasons that follow I am disposed to order that [B] attend

[M] School, provided that the mother pays $4,000.00 in fees towards that school and the father pays the balance if he is able. If he is not able to do so, I will order that [B] go to [C] School and that fees be paid equally by each parent.

The Factual Background

The father was born in 1950 and is in good health. He is now 57 years old.
The mother was born in 1960 and is now 48 years old.
The parties married in 1984 and separated in November 2000.
There are three children of the marriage, [B] and [A] already referred to, and [N] born in 1988.
Following the separation the mother re-partnered relatively quickly with her now husband Mr R and, although the parties present differing reasons for this, Ms Riley's relationship with [N] and [A] has been, for present purposes, sundered for quite some years. Both [N] and [A] remain not only estranged from their mother but contemptuous of her.
[B] has lived in a shared arrangement since 2001, and as I have earlier said, consent orders were made last year whereby a shared arrangement continues.
Both [A] and [B] are very interested in pony club and the like, although it is not clear whether [B]'s interest is quite so focused as that of [A].
Following separation, the parties entered into orders by consent before the Family Court of Australia on 2 February 2001. The mother asserts and the father denies that she accepted a substantially lesser figure than she might otherwise have been entitled to on a clear understanding that the father would pay private school fees for the children on an ongoing basis. She asserts further that she forewent any enforcement of child support entitlements because the father was paying private school fees.
It is common cause that both parents always wanted their children to go to private school. When they lived in Melbourne, which they did until they moved to [Z], they contemplated sending their children to [W] School.
The orders made in 2001 had an annotation to this effect:
The court notes … that the husband intends to pay the school fees of the said children at [P] School or similar school as long as he can afford to do so.
In the ultimate, [N] was educated at [P] School for the whole of her secondary education and [A] was there until she was removed from school at the end of 2006. The father paid all the school fees relevant to this education.
[B] went to [B] Primary, where she still is, on the unilateral decision of the father because he could not afford to pay the school fees for all three children.
The father sent [A] to [M] School in [X] in 2007, where he asserts [A] has done outstandingly well and her results, previously a matter of concern to him, have improved markedly.
The father's relationship with [N] is presently at best in a state of flux. The report of Ms Neoh dated 19 November 2007 suggests to me very strongly that that relationship is at least for the present time itself broken off, even though this has not altered [N]'s ongoing lack of desire to have anything whatever to do with her mother.

The Arguments about Which School is Appropriate

The father says that [M] School is a better school than the [C] School for which the mother contends. He says that it is better suited to [B]'s needs because it will provide a higher academic input, with more assistance in areas where she might be deficient.
Both parties advanced assertions about the relative travel time to and from the schools for which they contend, but it should be noted that I do not regard the travelling time from either of the homes of the parents to either of the proposed schools as being sufficiently excessive to be of any great moment.
Likewise, although each party sought to promote the school of their choice as being more appropriate, as being more in tune with [B]'s interest in matters equestrian, once again the evidence does not in my view show that there is likely to be a significant difference, in terms of the benefits provided to [B], at either school in this regard.
The critical question in this case is money. There was a substantial argument as to how much the various schools contended for really cost, but it seems clear to me on any view that the actual amount of moneys that would be required to be paid out for [B] to go to [M] School will be well over $14,000.00 per annum, whereas the amount for

[C] School is about $3,600.00.
A third school, [P] School, which has been suggested as an alternative on occasions by the mother, would cost in excess of $6,000.00 per annum. It should be noted that although [P] School has been promoted by the mother as an alternative on various occasions, this was not seriously contended for in the ultimate by counsel on her behalf and I do not regard it as an appropriate alternative choice. It is sufficient to say that [P] School is not the first choice of either parent.

Deliberation

Neither party sought to cross-examine any of the experts who have filed reports and I am therefore entitled to draw conclusions on their untested opinions.
Although the report of Ms Neoh appears to arrive at a somewhat different set of conclusions to those expressed in an earlier report by Ms Manya in 2006, I find the report of Ms Neoh to be compelling.
Ms Neoh had the benefit of the psychometric testing which was not available to Ms Manya. In any event the conclusions of Ms Neoh are closer in time, and are not in my view if read carefully, substantially opposed to anything in Ms Manya's earlier report.
Ms Neoh came to the conclusion that Mr Vance is likely to be lacking in insight and dogmatic and controlling. She also found that:
People who score as Ms Riley did may be psychologically unsophisticated and resent suggestions that their difficulties may be even party psychological. They may blame their personal problems on others and show a preference for giving up rather than facing a crisis, which creates difficulties in their relationships.
It is sufficient for me to say that the way in which this case has been conducted by the parties only goes to confirm to me that Ms Neoh's remarks are entirely accurate. The affidavit material filed by the parties, together with the way in which counsel cross-examined, of course on their instructions, shows that the parties do indeed possess the qualities discerned in them by Ms Neoh.
While the transcript of the proceedings and the material in the affidavits ultimately speaks for itself, I would point to two matters in particular to illustrate the sort of material to which I refer.
On the part of the mother, counsel repeatedly referred to [M] School in disparaging terms as an elitist school. As I pointed out, there is nothing to support that proposition. [M] School is certainly expensive but there is nothing to suggest that it properly requires the description "elitist."
By way of contrast, counsel for the father submitted on his instructions that the mother ought to be made to work. He was very disparaging of the failure of Ms Riley to obtain any work for many years.
I found Ms Riley's description of her incapacity to work, which she attributed to emotional fragility on her part, wholly credible. While it must be exasperating for Mr Vance to be aware that his former wife effectively has a life unfilled with any remunerative endeavours, the fact is that Ms Riley impressed me indeed as being a person who is so overborne by her perceptions of her former husband's controlling of her and her unhappy experiences in the relationship, (with the added superimposition of the qualities correctly in my view attributed to her by Ms Neoh), as to make her genuinely unable to work both now and into the foreseeable future.
Ms Neoh found at page 12 of her report that:
This is a family with a long history of strong feelings and bitter estrangements. What was most noticeable when speaking with all family members was the degree of focus on the separation.
It is entirely clear to me from the materials filed and the evidence and submissions presented, that that is an accurate assessment.
Ms Neoh went on to find on the same page that:
My assessment suggested that [B] is at the vortex of her family's arguments and it seemed that arguments tended to rage around her. I consider that [B] is under very great pressure in her family, and while she enjoys all of her family and appears to be the most well adjusted, the pressure on her is intense and detrimental to her development. I consider that [B] is immature and vulnerable, may be very influenced by her elder sister and/or father, and that her stated wishes should be considered unreliable. It was my assessment that [B] was likely to say or do anything to avoid any confrontation or further pressure.
I am not in a position to comment directly on the assessment of [B] because of course I have not seen her, but the assertions about [B] being at the vortex of the family's disagreements is in my view entirely correct, and I otherwise accept the force of the professional experience of what Ms Neoh had to say in that extract.
Additionally, as counsel for the Independent Children's Lawyer pointed out, the report of the independent expert Mr Storey into the two schools has not been the subject of challenge. It is clear that [M] School is the better school, although it is equally clear that [C] School is perfectly acceptable.
I accept the submissions of the Independent Children's Lawyer that there are bus services to both schools, and I accept the submission of the Independent Children's Lawyer that there will be sufficient equine interest at both, and that [B] would have friends at both schools even though as I find her best friend [H] does indeed go to [C] School.
As counsel for the Independent Children's Lawyer submitted, this case is all about money.

Conclusions

The parties have not really conducted this case in a way that focuses attention upon where [B]'s best interests lie. I am required to do so consistent with the Family Law Act 1975.
I note the following remarks at page 13 of Ms Neoh's report:
In relation to [B]'s schooling, I am in no position to assess the educational suitability of the parents’ choices. So far as schooling impacts on family relationships, there is at least the possibility that allowing her to attend the same school as [A] for one year of overlap might provide Ms Riley to become involved in [A]'s life and the potential to improve their relationship. However, there is also the obvious risk that by attending the school, the delicate balance in [B]'s life might be tipped in her father's favour and expose [B] to even greater pressure.
That passage must be approached with some qualifications. First, as things presently stand it would clearly not be in [B]'s best interests for her mother to seek to approach the school and [A] because [A] does not want to have anything to do with her. Any attempt by the mother to do so would in my view be likely to give rise to stress and tension which is not in [B]'s best interests.
However, I do not think that this will occur, because all the evidence is that the children would be sent to school and returned from school by bus. Even if I am wrong in this conclusion, I will in any event direct the mother not to approach or seek to approach [A] without [A]’s prior consent in writing.
There is in my view a genuine benefit available to [B] in going to the same school as her elder sister albeit this will only be for one year. This will mean that her first experience of travelling to school will be with her elder sibling with whom she has a good relationship. Although one must approach with caution the question of how much assistance a child in the last year of school will provide to a junior sibling in their first year of school, nonetheless it seems more probable than otherwise to me that the presence of [A] for one year with [B] at the same school is a benefit to her.
Furthermore, and ultimately, I think this is a simple matter.

[M] School is clearly the better school. Mr Storey said it was a five star facility compared with [C] School's three stars, although it should be emphasised again [C] School is perfectly satisfactory.
It is in my view self evident that going to a better school is more likely than otherwise to be in [B]'s best interests.
This brings one to the question of money. I accept the explanation offered by Ms Riley about her earlier offers to pay for the fees at

[P] School which was to the effect that when she made that offer she thought the fees were lower than they now turn out to be.
I accept the evidence of Mr R and his wife that their income is somewhere around the $50,000.00 a year mark, and given their mortgage and other financial commitments I accept their evidence that $4,000.00 is the maximum per annum that they can pay for school fees.
I reject as wholly unreasonable the father's assertion that the mother should be compelled to work under the pressure of the powers of the court in relation to contempt. On the evidence it is clear to me that

Ms Riley simply is not able to work now, and is not likely to be able to do so in the foreseeable future. While Mr Vance's frustration with this situation is understandable, looked at objectively I am afraid that I have to say that I think his lack of sympathy does him no credit.
That being so I am prepared to accede to the father's desire that [B] go to [M] School. The difficulty is he will have to pay the rest of the fees himself.
If he is not able to afford to do so, then it is quite clear in my view that [B] should go to [C] School.
The fact is that while Mr Vance's financial circumstances are far from clear, he was able to pay the school fees for both [N] and [A] for a number of years, and he will be stuck with paying for [A], which he intends to do irrespective, and [B] together for only one year. It is a matter that he will have to make his own choice on.
So far as Mr Vance's finances are concerned, while his tax return is clear on its face, the financial accounts of his business are more opaque. The business appears to have had in the 2007 financial year gross earnings of about $140,000.00 and a gross profit from trading of $112,000.00. The expenditure was said to total $81,000.00 but of that expenditure $46,000.00 was salaries and wages, and it is by no means clear whether all of that was paid to Mr Vance or just part.
If all of it was paid to Mr Vance, the additional expenses are only worth about $35,000.00 and would leave a total income of about $80,000.00 a year rather than the $55,000.00 declared.
I should make it plain that I am not able to form any final conclusions about Mr Vance's income, nor do I do so. The evidence about his various property sales and the like was far from easy to construe.
What I am clear about however, is that the $4,000.00 asserted by

Mr and Mrs Riley is indeed the maximum they can pay. While once again the figures as to the various properties they had bought and sold involved some measure of confusion, in the ultimate I think it was comprehensible and I accept that matters are as they say.
I should interpolate and say that I found both Mr R and Mrs Riley to be credible witnesses. While Mrs Riley is plainly a woman of somewhat brittle personality, she impressed me as being honest and direct in her answers.
If the father does not wish to or is not able to pay the balance of the school fees for [M] School then as I have said [C] School is the other option.
No party seriously suggested that [P] School was a better option.

The father indeed had removed [A] from that school and opposed it as a school for [B].
The mother only suggested [P] School as an alternative when asked to do so by the father's solicitors.
[C] School is perfectly satisfactory academically and would cater for [B]'s equestrian interests. While she would not have her sister there for the first year, her best friend [H] goes there and I accept that she is likely to have friends from the community at either school she may attend.
The diminished level of fees that would be payable by all concerned would free up funds for other expenditure which would no doubt at least in part benefit [B] either directly or indirectly.
I have done my best in these reasons for judgment to approach the issues in the light of the legislative requirements. It is readily apparent however, that the particular issue in dispute, namely which school [B] attends, does not fit all that readily in the various matters set out in s.60CC of the Family Law Act 1975 (“the Act”).

I have already set out those matters which seem to me to best indicate where [B]'s best interests will be met, but to the extent that it is practicable to do so I will make a few additional comments on the provisions of s.60CC of the Act.
I do not think that the child's relationship with either parent will be significantly disturbed whichever school she goes to. While I accept that the mother thinks that this proceeding is simply part of the father's ongoing persecution of her, I do not think that the shared time arrangements will be disturbed by the choice of school. [B] will still be spending half her time with her mother and there is no reason to suppose that the relationship will be damaged by the choice of school. Conversely, the same applies to the father in the event that the school is [C] School. (Section 60CC(2)(a)).
Whatever the views of the parents I do not think that the choice of school will raise any question of protecting [B] from physical or psychological harm arising out of abuse, neglect or family violence. (Section 60CC(2)(b).
In the light of Ms Neoh's report I have given little weight to [B]'s expressed view that she wishes to go to [M] School. (Section 60CC(3)(a)).
Once again, I do not think that the choice of school will impact in any significant way upon the relationship that [B] has with either of her parents or any other relevant persons including Mr R and her siblings and her half step siblings. (Section 60CC(3)(b)).
Section 60CC(3)(c) is of relevance to the choice of school, although I think both parents would struggle to foment the relationship with the other one.
Section 60CC(3)(a) has already been dealt with above in relation to the expressed views of [B].
The orders I propose to make are those least likely to lead to the institution of further proceedings. (Section 60CC(3)(l).
To the extent that I have otherwise expressed myself above, the matters to which I have referred are those matters that are relevant pursuant to s.60CC(3)(m).
I have turned my mind as I am required to to section 60CC(4) but in the particular circumstances of this case it is not necessary to add anything further arising under this section.
For the above reasons, I will have prepared minutes of orders which provide for [B] to attend [M] School next year with the mother paying $4,000.00 and the father paying the balance, but in the event the father is unable and/or unwilling to do so, the child will attend [C] School and the parties will pay equally.

The Child Support Issue

I will hear further submissions from the parties on this point, which may in part be influenced by the father's choice as to which school [B] attends.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Brooke Evans

Date: 20 June 2008