Vaughton and Randle (No. 2)

[2014] FamCA 823

FAMILY COURT OF AUSTRALIA

VAUGHTON & RANDLE (NO. 2) [2014] FamCA 823

FAMILY LAW – CHILDREN – Interim Orders – Education – where parties unable to agree upon a school – where child has not attended school for several months as a result of dispute – best interests of the child – orders made for mother to select a school from designated geographical area.

Family Law Act 1975 (Cth) s 60CC
Bankruptcy Act 1966 (Cth)

C & B (2007) 38 Fam LR 1
Church & Overton (2008) 40 Fam LR 357
Goode & Goode (2006) FLC 93- 286
Rice & Asplund (1979) FLC 90-725

APPLICANT: Mr Vaughton

RESPONDENT: Ms Randle

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADC 3046 of 2010

DATE DELIVERED: 11 September 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 11 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dickson

SOLICITOR FOR THE APPLICANT: Adey Lawyers

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT: N/A

Orders

1. That the Application in a Case filed 8 September 2014 and the Response filed 9 September 2014 be listed for hearing on 22 December 2014, one day allowed, noting that the hearing will be predominantly on the papers but may involve evidence given by each of the parties only.

2. That the mother shall forthwith determine a school that the child R is to attend for the balance of the 2014 academic year provided that the said school shall be within a radius of five kilometres from the corner of X Street and AA Street, Suburb BB.

3. That upon the mother determining the identity of the nominated school the parties shall do all things necessary and sign all relevant documents as may be required to enrol the child R in the said nominated school.

4. That if by 10 October 2014 the mother has not nominated a school to which the child R shall attend then the father is to determine the school to which the child R shall attend but within the aforementioned geographical region.

5. The mother be at liberty to file one further affidavit upon which she intends to rely by 4 pm on 31 October 2014.

6. The father be at liberty to file one further affidavit upon which he intends to rely by 4 pm on 28 November 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vaughton & Randle (No. 2) 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 ADELAIDE

FILE NUMBER: ADC 3046 of 2010

Mr Vaughton

Applicant

And

Ms Randle

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The parties remain in dispute in respect of the parenting arrangements for R (“the child”) born in 2008.  This matter has been the subject of considerable judicial attention over recent months culminating in a trial heard by me on 14 and 15 November and then 6 and 20 December 2013.  On that occasion the mother and father were each represented by counsel and the Court had the assistance of an Independent Children's Lawyer. 

2. There has been some change to that status in that the father remains represented by Ms Dickson of counsel but the mother is now self-represented and there is no attendance for and on behalf of the Independent Children's Lawyer.  Judgment was delivered on 13 March 2014 and the essential terms of that order intended to be a final disposal of the parenting issues as between the parties was that the parties would have equal shared parental responsibility of the child, that the mother was required to return or cause the return of the child to the metropolitan area of Adelaide on or before 4 July 2014 and thereafter arrangements were put in place that would see the child spend time and live with his parents. 

3. In particular, and perhaps germane to the matters that I now have to consider, the child would spend school time with his father from Friday through to the following Tuesday in each alternate week.  There were also orders made in respect of the arrangements for the child to spend extended time with his parents during school holidays.  The mother, in compliance with orders made, has brought the child back to South Australia and it was considered that the matter, in terms of the dispute between the parties involving the child, had been brought to an end by the orders. 

4. Applications were made to resolve outstanding costs issues by way of determination of those orders or those costs, and then a method and manner by which those issues were to be resolved.  On 22 August 2014 those issues, together with a minor amendment to paragraph 5(d) of the final orders were resolved.  But as part of those proceedings and that hearing, it was revealed that the child had not been attending a school.  The mother makes the point that it is more serious than simply noting that since July 2014 when the mother brought the child back to Adelaide he hasn’t been attending school.  Indeed, the child hasn’t been attending school for the entirety of 2014 and, I think also some part of 2013. 

5. The consequence is that the child may well not have attended formal school education for a period that is either a year or indeed approaching a year.  In any event, it is a serious matter.  To be fair to the mother she foreshadowed it and as a result of matters that I raised in terms of the formality by which this issue should be raised she filed an application in a case on 8 September 2014 which sought a number of orders.  The first was that paragraph 6 of the orders dated 13 March 2014 be vacated or discharged.  And that order was an order by way of restraint so that the child would not be overburdened with the attendance on counsellors, social workers or psychologists without the prior written consent of the other.

6. I have indicated to the mother that I do not consider that issue to be one that should be further raised without formality and a hearing that would see whether the principles of Rice & Asplund (1979) FLC 90-725 should be exercised in that regard, that is, in respect of these interim proceedings that is not an order that I would make. The very issue of it, though, and the manner in which that order was made does raise issues that resonate more broadly in terms of the relationship of the parties. The second order that the mother seeks in her application would change a fundamental aspect of the final orders, namely that the parties do have equal-shared parental responsibility in respect of the child.

7. That is demonstrably a significant matter and whilst the mother is entitled, obviously, to bring whatever application she wishes, whether or not that order if proceeded with or that application is proceeded with is again an issue that relates to whether there is a material change in the circumstances of the child.  The corollary of those orders that she seeks, or indeed possibly a further order that she seeks is that the child be able to be enrolled in Suburb CC Primary School.  It may be the case that the mother, doing the best that she can, made reference to parental responsibility not because she seeks to fundamentally change the basis by which the parties are obligated to parent the child, but rather because she viewed the issue of parental responsibility as having a connection with the child’s education. 

8. In any event her position is, and the affidavit material that she filed is directed towards persuading the Court that the child’s best interests would be served attending Suburb CC Primary School.  The father has had an opportunity to file a response and did so on 9 September 2014.  The position that he adopts is straightforward in that the only substantive order that he seeks is an order that would enable the child to be enrolled in and to attend at DD School in Suburb A.  DD School is a private school and is part of the Catholic school system.  The mother opposes the making of that order. 

9. The affidavit material has about it significant detail but I think that it is fair to assess the position of each of the parties for whatever reason it might ultimately turn out to be based upon, and that is in respect of issues relating to the child’s schooling the parties are unable to reach agreement.  I accept that each of them has a strong trenchant view that it is the other and the other’s intransigence in respect of the matter that is the problem.  I am not going to be able to get to the bottom of that dispute today.  And it may be that, frankly, I don’t need to get to the bottom of that dispute. 

10. It may well be sufficient for the Court to note that in respect of what must be considered one of the primary responsibilities of properly functioning parents in respect of issues relating to a child or children is that they recognise the need for the child to have education and that they make decisions that enable that to have a practical effect.  In this case, for whatever reason, the person that has suffered is the child, not the parents.  They have not been able to agree and the effect of that is that the child is not in any sort of formal school education. 

11. At the commencement of the proceedings today I indicated to the parties that whilst their focus may be narrow, namely which school the child should attend in terms of the school’s identity, that I viewed the matter more substantially than that, in the sense that it was not a matter for me to select a particular school but rather it may well be a matter that I should consider reflects upon the parties ability to exercise equal-shared parental responsibility insofar as that encompasses education.  In summary, I intimated that a possible course of action of the Court might be to consider whether the order of equal-shared responsibility should be altered to one of shared parental responsibility and depending upon the evidence that is heard a determination might be made that gives sole parental responsibility in respect of matters relating to the child’s education to one or the other of the child’s parents. 

12. That is not a concluded and final position but it seems to me that the Court should not properly descend into what is likely to be a barren exercise in attempting to divine the merits of one school or another.  It might be that there are issues that encompass easily-understood concepts such as the geography of the parties, the issues relating to the extent of time that the child was with one party or the other and those matters which are perhaps self-evident but nonetheless need to be enunciated and elucidated by the parties. 

13. But that is a very different inquiry to one that suggests a particular school has a quality about it that recommends it over another.  There is nothing in the affidavit material filed by the parties on an interim basis that suggests this child has any special or particular needs other than the mother’s position which is the child is functioning at a high level.  The father would not appear to disagree, and to that extent that points to the need for this child to be in some form of education rather than not.  That does not mean that I intend to stop the parties bringing evidence if they want to in respect of matters relating to particular qualities of school if that is the argument that they want to run, but I think it is fair and proper that the parties understand at least the initial view that the Court holds in respect of its ability and my ability to make a determination that one school is better than another because of some empirical quality of the particular school. 

14. It would not be proper for this Court to descend into an argument that a private school is better than a state-run school.  It would not be proper to look at the size of the school or the extent of acreage of its ovals or indeed where it might form or fall in respect of some table of performance as may be determined by the relevant department.  There may, of course, be cases where a child has a particular need and that need, whether it be language, kinship, music, some other academic or sporting focus of that school that might at least lead the Court to consider those issues, but they are not matters in this case. 

15. I view the dispute between the parties as, frankly, one that essentially relates to geography and not something more detailed or targeted than that.  This case raises issues that resonate in many other proceedings and that is the extent to which the Court should really make or descend into what I might describe as the minutiae of decision-making particularly when they relate to parental responsibility.  In that regard I refer to matters raised by his Benjamin J in the Church & Overton (2008) 40 Fam LR 357 where his Honour said at paragraphs 47 and 48 the following:

    Courts exercising jurisdiction under the Family Law Act have a statutory obligation to resolve conflicts relating the parenting of children. This does not mean that the Court takes over the role of parents. There are limits on the ability of parents to make decisions regarding their children. The most obvious example is their ability to consent to certain medical procedures. In the absence of a Court order made by this Court the defining tenor of the Family Law Act is to empower parents to take responsibility for making decisions regarding their children free from arbitrary or unwarranted interference.

16. Those matters or similar matters were raised by Altobelli FM (as he then was) in the decision of C & B (2007) 38 Fam LR 1.  His Honour said at paragraphs 113 to 115:

    There are some matters of parental responsibility that are simply best left to parents to decide.  This is one of those issues where on the facts of this case the law should not intervene.

17. In that case it was a matter about how the religious aspects of the child should be determined.  The short summary was that the Court was of the view that it should have a limited role in respect of matters relating to religious education.  I raise those matters from those decisions only to indicate that the dispute between the parties as to which school is not simply – is not as simple as that and that the behaviour of the parties raise the very real possibility that the selection of the school will not end matters relating to the dispute as to the child’s education.  

18. It may well be that even once the school is determined there will be issues relating to curriculum, extracurricular activities and a range of other issues that affect the child in his school life.  I suspect, and it may be that the mother by her own sense of the matter would agree, that the issue is not one of school but rather one of parental responsibility in respect of education that might need to be at least the first consideration in terms of a resolution of that issue and a removal of the parties’ ability to bring each and every aspect back before this Court for determination. 

19. Ms Dickson, however, properly raises that previous statements made by me suggest that what I would be looking at today would be a resolution or a determination of the schooling issue.  She did not, and her client did not consider, that I might take a more broad approach and that is to consider whether the issue should not be one of school selection but one of determination that one party or the other should have the responsibility – the parental responsibility for the child’s education.  With that submission I think I am obliged to agree. 

20. And so that will mean that subject to any resolution that the parties come to between now and the time this matter is relisted for hearing I will need to set an appropriate time for argument.  Whilst it might change at this stage the most reliable date that both parties are available and counsel are available is Monday 22 December 2014.  And again, if other dates become available whilst I may well contact the mother and the father’s solicitor to ascertain whether the parties would wish to seek an earlier date or are available for that I think it is proper that at least there be some regimen to how the matter is to go forward and I accordingly intend to list the matter for argument on 22 December.

21. At this stage neither party is seeking to present oral evidence in respect of matters relating to the particular qualities of their preferred schools, or indeed any schools, and on that basis then – and if they were then I have indicated that that evidence would have to be given orally and that I would be unlikely to place any weight at all on documents annexed to affidavit material.  But neither party is asking me to do that and I can therefore perhaps assume that the issue is something that is going to be determined by more broadly understood concepts of geography and ability to access particular schools and the like, but that will be a matter to be seen. 

22. That, of course, does not end the problem because demonstrably a date on either 22 December 2014 or indeed an earlier date would simply indicate that the likelihood of the child attending school for the balance of the 2014 academic year is remote.  The situation at present is that the child is at home.  He is fortunate in that the mother in these proceedings has a qualification in the education field but the mother, frankly and properly, tells the Court that she does not consider that what she is doing with the child should be considered as the equivalent of home schooling and all that that entails, and she does not disagree with the proposition that I put to her that it is to be considered inadequate as compared to the advantage that the child would receive of being enrolled in a school in formal school education. 

23. There are issues relating to the child’s inter-relationship with other children of his age.  There are issues relating to the formality of class and lectures – and lessons.   And there is formality to the child returning to some form of normalcy in circumstances where, even in their most pessimistic gloom, neither of these parties could possibly imagine that the child should not be enrolled in school in 2015 academic year.  The matter needs to be brought to an end.  But equally I am less interested in the sensitivities and sensibilities of the parties and far more interested in the child having at least some pathway determined for him which will see him reintegrated into a school system and able then to more properly cope with whatever the final decision is about where the child is likely to go to school, or indeed who will make that decision and how that decision can be made. 

24. When I consider the affidavit material of the parties I ignore the dispute between each of them as to the arrangements that each of them sought in respect of the child but I centre upon and focus in respect of the child’s current circumstance.  Clearly he is not attending school. He needs to attend school.  The mother says that the school should be geographically close to her because in terms of the arithmetical considerations she is the primary carer in respect of the child and that simply arises from the manner in which the fortnight is divided between the parties in terms of in whose care the child is resident. 

25. The second is that she resides in the Suburb CC area and she annexes a lease which confirms that she has a tenancy of six months between – expiring in January of 2015.  She also says that as a result of where she lives her daughter, Z, is enrolled in a school in that locality in a secondary school and that that enrolment was appropriate because the curriculum in the senior school provided support for that child’s intended university education.  In any event and notwithstanding the matters I raised with the mother that her lease arrangements could not be considered as certain, the mother’s position was that she had some confidence that the lease would be renewed when it comes to its expiration date, and in any event she has made a commitment to that area (my summary). 

26. It is not proper to try and unpick whether in the circumstance it was reasonable or not for the mother to reside in Suburb CC or I have to take the mother’s position and the father’s position as I now find them in terms of weighing up the respective proposals.  This is not a matter of me seeking to change where the mother lives or indeed to tell the mother that she can or can’t live in a particular area.

1. The father’s position, obviously, is that he understands that where he lives at Suburb EE, which is some 50 kilometres away, the options in respect of schools closer to where he lives are more limited and so his position is that whilst he has a particular preference for the school as I have indicated it, nonetheless he concedes that there should be – and there could be other schools that are somewhere geographically equidistant between the parties.  It is ultimately not necessarily a matter of equity in the sense of a school being equidistant between the parties. 

2. That would be to some extent disrespectful to the parties but also not necessarily assisting the child in terms of the long-term arrangements.  But it may be that those factors of geography need to be brought to account at this stage of the proceedings simply because the needs for the child to be in some form of school education dramatically and significantly outweigh the alternative which is that he will not be in any school education.  I also have to take into account that, whilst the arrangements would require the mother to make – to travel more often, equally the child is with the father significantly and substantially, and I have to bring to account the very real distance that he would have to travel with the child. 

3. I discount the mother’s position that she has no ability to travel because of her car being unregistered and the possibility that because of some action that is being taken that she will be bankrupt and that her car would be lost.  There is no evidence to that effect and I have to assume, as I would, that under the relevant provisions of the Bankruptcy Act 1966 (Cth) a person’s motor vehicle in circumstances that I would imagine apply to the mother is likely to be considered as “exempt” property. But in any event that, of course, would be an issue for further consideration when this matter comes back as to whether the father’s position would be such that the mother has a restriction or an inability to travel because of any order that he seeks in another Court or another place.

4. The decision, however, that I have to make in respect of an interim order is, nonetheless, a decision that has to be given some rigour and form and format.  In the decision of Goode & Goode (2006) FLC 93-286 the Court acknowledges that in respect of interim proceedings the reasons are entitled to be brief and that there are, by necessary implication, significant impairment to a Court being able to garner and make a decision based upon all of the relevant facts. That is, it is just simply not – it’s not an option. The information is truncated and it is relatively narrow and I take those matters into account.

5. The pathway, however, must be considered and to that extent I refer to paragraph 82 of their Honour’s determination which identifies what has been described by their Honours as the legislative pathway and it requires, at first instance, the identification of the competing proposal of the parties, that I identify the issues in dispute in the interim hearing, that I identify any agreed or uncontested relevant facts, and that I give consideration to matters in respect of section 60CC of the Family Law Act 1975 (Cth) (“the Act”) that are relevant. I, of course, apply section 60CC whenever I need to determine whether an order that I consider should be made is an order that is in all the circumstances in the interests of the child.

6. It seems to be axiomatic that the child’s interests are better served at school than not.  It is also the case that the parties are not able to reach that arrangement and if I accede to each of their separate requests in the sense of the way forward that would see the child not attending school for the balance of 2014. The mother concedes properly that doing the best she can her informal home schooling is an inadequate alternative to a formal school education.  The parties therefore need to understand that the Court has given the matter significant and proper reflection in attempting to determine what orders, if any, should be made in the interim. 

7. The mother does have, however, certain aspects to her history which are important namely that she is qualified in an education field.  She is the one that suggests to the Court that issues – that there are going to be some impediments to her;  whereas the father’s position is a little more generous in the sense that he understands that as part of his care arrangements there will need to be significant travel by him in any event.  In all the circumstances of this case I proceed on the following basis.  Firstly, that it would not be proper for me to make no order in respect of the child attending school.  Therefore the child should be enrolled in a school. 

8. Thirdly, geography is important and I intend to make orders that would fix a point that is not geographically equidistant to the parties or between the parties – to do so would be artificial – but rather to adopt a geography that is, in a general sense able to be accommodated by the father without an excessive travelling time but is also probably to the travelling advantage of the mother in circumstances where I do not accept she has the level and the extent of the impediment in relation to transport that she says.  Without deciding matters of parental responsibility there needs to be a method and a mechanism by which a school is selected. 

9. I do not propose to do that because it would be arbitrary but I do propose, in respect of the limited topic of a school, to set a geographical area but give the mother the ability to select the school that the child will attend between now and the making of any further order.  I emphasise that in giving the mother that option does not pre-determine matters of education because I view the issue of education to be a significantly wider and more expansive problem than just simply the school at which the child attends. 

10. The immediate issue is the distress that the child is suffering by not attending the school and the concern that the Court must have that under no circumstances could it be in the interests of this child to be at home without any hope of education and all the benefits that that entails.  It is, again I repeat, not to the credit of the parties that this dispute has been raised and accordingly the Court needs to intervene again, not to assist the parties but to promote the best interests of the child. 

11. What is therefore proposed is that the mother will have the ability to select a school at which the child is to attend with such school to be within a radius of five kilometres from the corner of X Street and AA Street, Suburb BB. If the mother is not able to make that decision then the father will have the same opportunity thereafter. So that’s what I propose to do.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 11 September 2014.

Associate: 

Date:  29 September 2014