WEMPLE & DAUTRY
[2013] FCCA 2376
•20 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WEMPLE & DAUTRY | [2013] FCCA 2376 |
| Catchwords: FAMILY LAW – Interim parenting orders for near school age child – varying levels of difficulty in parenting relationship – difficulties in interim proceedings where there is conflicting evidence between the parties – further issue of which school child should attend in circumstances where the Father says he cannot afford to pay school fees of the magnitude sought by the Mother and where she is already in debt for pre-school fees from a pre-school. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC(2)(a) & (b), 60CC(2A), 60CC(3)(b), (c), (ca), (d), (e), (f), (g), (i) & (j), 61DA, 65DAA |
| Collu & Rinaldo [2010] FamCAFC 53 Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422 McCall v Clark (2009) 41 Fam LR 483 Maluka v Maluka (2012) 45 Fam LR 129 Mazorski v Albright (2008) 37 Fam LR 518 Moose & Moose (2008) FLC ¶93-375 MRR v GR (2010) 240 CLR 461 Shaeffer v Jacobs (2011) FLC ¶93-468 Sigley v Evor (2011) 44 Fam LR 439 Vasser v Taylor-Black (2008) 37 Fam LR 256 |
| Applicant: | MR WEMPLE |
| Respondent: | MS DAUTRY |
| File Number: | CAC 1472 of 2013 |
| Judgment of: | Judge Neville |
| Hearing date: | 10 December 2013 |
| Date of Last Submission: | 13 December 2013 |
| Delivered at: | Canberra |
| Delivered on: | 20 December 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Gill |
| Solicitors for the Applicant: | Farrar Gesini Dunn |
| Counsel for the Respondent: | Mr T Hodgson |
| Solicitors for the Respondent: | n/a |
ORDERS
On an interim basis, the Court orders that:
The parties shall have equal shared parental responsibility for the child [X] (born [in] 2008) (“the child”).
The child shall spend time with the Father as follows:
(a)Each alternate weekend from after school on Friday until before school on Monday; and
(b)One overnight in the off-week (absent agreement), that night shall be on Thursday, from after school to before school Friday.
In the absence of written agreement this regime shall apply through the school holidays.
Whenever the child is in the care of her Father she should be able to telephone her Mother at any reasonable time
SCHOOLING
On a final basis, the Court orders that:
The child shall attend [S] Primary School in [omitted] commencing in Kindergarten in 2014.
IT IS NOTED that publication of this judgment under the pseudonym Wemple & Dautry is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT CANBERRA |
CAC 1472 of 2013
| MR WEMPLE |
Applicant
And
| MS DAUTRY |
Respondent
REASONS FOR JUDGMENT
Introduction
On 20th December 2013, in order to give a degree of certainty to the parties at the earliest possible time, and because of the nature of one of the issues in particular that required determination, I delivered abbreviated oral reasons in the midst of the usual end-of-year crush of urgent applications and the like. Indeed, the matter was heard in the course of the last duty week of the year because that week was the only time that could be found that suited the Mother’s Sydney-based Counsel.
Pursuant to those reasons I made orders on that date in relation to parenting and schooling. I indicated at the time that, in the event that written reasons were required (as they now are), I would expand and revise the earlier reasons. What follows are the reasons (as revised) for the orders made on 20th December 2013.
Unfortunately, they are lamentably and tediously long, the more so because they are interim in relation to the parenting (“time-with”) issue, which is of quite modest scope. For reasons explained later, including the need for the parents and the child to have a degree of certainty regarding the school the child will attend in 2014, the choice of school issue (which might also properly be characterised as a ‘parenting matter’) was considered on a final basis as well as being a matter of some urgency.
The issues formally before the Court are: (a) to formalise and regularise the otherwise informal and somewhat ad hoc but nonetheless very regular time that five year old [X] spends with her Father, and (b) to determine which school she should attend in 2014, when [X] will take the big step into kindergarten. In 2012 and 2013, she attended pre-school at the [E] (“[E]”) conducted by [G] School (“[G] School”). I understand that the [E] is separate from the ‘junior school’ of [G] School and inhabits different premises to the rest of the junior and senior schools.
Her Mother wishes her to attend [G] School, notwithstanding the financial difficulty this will entail (even on the Mother’s evidence). Her Father says that he cannot afford to pay the costs of [X] to attend [G] School, and points (among other things) to the Mother’s difficult financial situation, which includes a current outstanding debt for school fees owed by the Mother in relation to [X]’s attendance at the pre-school at [E]. He suggests another school for [X], with more manageable fees.[1]
[1] The Father’s preferred school for [X] is [S] Primary School (“[S]”) in the inner southern Canberra suburb of [omitted].
In relation to parenting proper (i.e. ‘time with’), the Mother does not oppose [X] spending time with her Father – the reality is that she has done so regularly until September 2013. Rather, from the Mother’s perspective, the issue relates to the frequency and degree of that time, and the impact of that time being spent without her older brother [Y] being present ([Y] is not the biological son of [X]’s Father).
For his part, by way of overview, the Father seeks to regularise his time with [X], which (he says) would simply reflect the regularity and duration of the time [X] spent with him (sometimes with, sometimes without, [Y]) prior to the contest between the parents over the Father’s non-payment of [X]’s school fees attending [G] School. It is reasonably clear in the Father’s material (and perhaps only slightly less so in the Mother’s) that the parenting matter only became an issue when he notified the Mother of his refusal (and inability) to pay the [G] School school fees in September 2013.
These reasons proceed as follows: (a) background and procedural history; (b) orders sought by the parties; (c) outline of the affidavit (and other) evidence; (d) outline of submissions; (e) legislative pathway & discussion; (f) conclusion.
Background & Procedural History
Procedurally, at one level this matter has moved quite quickly; at another level it has moved a tad slowly.
The original Application was filed by the Father on 25th September. In it there was no mention of orders pertaining to [X]’s schooling. However, the Father’s affidavit filed in support has detailed information in relation to the ‘school issue’, not least being his consistent record of opposition (notified to the Mother on more than one occasion) to [X] attending [G] School in 2014. He says that the parties had not discussed [X]’s schooling at mediation, and that he cannot [now] afford to pay the school fees involved.
When the matter first came before the Court on 14th October 2013, the then self-represented Mother sought and was granted an adjournment to enable response material to be filed. The matter was re-listed for further directions on 12th November at which time the Mother again sought an adjournment, this time for an interim hearing on a date that would accommodate her Counsel’s availability.[2] So far as the Court is aware she has never retained solicitors. Certainly no notice of address for service has ever been filed on behalf of the Mother.
[2] As it happened, the Mother’s Counsel, Mr Hodgson, was appearing in another Court in Canberra on this date. I stood the matter down to a time later in the day to allow Mr Hodgson to attend before this Court briefly to work out a mutually convenient future [interim] hearing date.
Orders were made by consent on 14th October for the Father to spend time with [X] twice every week, but without overnight time.
The Mother, still as a self-represented litigant, filed her Response and supporting affidavit on 22nd November.
On 28th November 2013, the Father filed an Application in a Case, together with another (like his first) very detailed affidavit. That Application sought orders in relation to [X]’s time with her Father, and in relation to which school she should attend in 2014.
It came back before the Court on 10th December when Counsel appeared on her behalf as he had done fleetingly in early November. At the hearing on 10th December Counsel for both parties provided material (noted later in these reasons), and the Mother’s Counsel was permitted to provide further evidence from the Mother, which came via an affidavit filed on 12th December, among other things in relation to various matters raised at the interim hearing, including the Father’s provision to the Court of a calendar (which he prepared) that showed the dates when [X] (or both children) spent with the Father between August 2012 and September 2013.
Written submissions on behalf of the Father were filed on 6th and 13th December. Supplementary written submissions were filed on behalf of the Mother on 12th December. I note later in these reasons the basic text of the submissions by each of the parties.
In addition to what has already been said, and again more by way of overview, the position of each of the parties is as follows.
In relation to the “time with” issue, the Applicant Father says that up until September 2013, [X] spent an average of four nights per fortnight with him, but since then the Mother has prevented [X] from spending regular time with him - overnight time in particular.
Regarding the school issue, he says that the Mother cannot afford the school fees at [G] School instancing, amongst other things, that there remains an outstanding debt of $4000 from [X]’s 2013 fees which fees will, of course, increase next year and over time. He also says that [X]’s best friend and second cousin will, or currently do attend, the school proposed by the Father. Finally, for reasons he outlines (and which are noted later in these reasons) he says that he cannot afford to pay fees of the magnitude required for [X] to attend [G] School.
Summarily, the Respondent Mother says that the Father’s time with [X] needs to be increased on a graduated basis. The Father himself seeks (and states) exactly this in his primary affidavit (filed 25th September 2013: para.64).
In relation to schooling, she says that the Father has reneged on a funding arrangement to pay for [X]’s schooling at [G] School, and in the alternative, says that if the Father pays periodic child support as assessed she will be able to afford the school fees. She also says that [X] has progressed extremely well at her current pre-school ([E]). Her pre-school report was tendered in this regard (Exhibit B). The Mother also doubts that [Z] is [X]’s best friend - as alleged by the Father.
The Mother further says that the Catholic school sought by the Father for [X]’s education is not supported by the Father’s regular faith practices. Indeed, she suggests that his faith practice is quite irregular.
For my part, and by way of general comment only, I do not propose to compare the respective schools for which each parent contends. Such matters are almost always questions of degree or impression, particularly when very young children are involved. Absent a child prodigy, or a child with ‘special needs’, as already noted, criteria for school selection must necessarily be somewhat impressionistic. This is not to deny the importance of education: far from it. It is recognised under the Family Law Act 1975 (“the Act”) (s.4) as a major long-term issue. In any event, I need not undertake such a delicate, if not fraught, exercise in educative comparison because there are, in my view, other less problematic grounds upon which the schooling issue can and should properly be determined.
In short, given (a) the Mother’s acknowledged current indebtedness already following [X]’s time at her pre-school ([E]), (b) the Mother’s lack of evidence of her capacity to fund [X]’s education at [G] School (together with the lack of information provided to the Court by the Mother regarding [Y]’s school fees at [B] School – apart from the statement that her Mother pays for half of [Y]’s fees, but with no information regarding who pays for the other half), and (c) the Father’s sworn statements of his lack of financial capacity to pay for [X]’s education at [G] School, on the material available to the Court, the Mother’s proposal for [G] School is not financially viable.
Further, given (a) that the Mother has already incurred such a debt in relation to pre-school fees, (b) the lack of any relevant detail about how she would fund future, larger fees for [X] (and with a similar lack of information regarding [Y]’s on-going school fees), and (c) the lack of detail about the arrangements the Mother has made with [G] School to pay out over time the current debt, to allow the Mother’s application would be to risk sanctioning her incurring even greater debt, and [X] having to change schools in the not too distant future.
Because of (a) the lack of relevant evidence, (b) the difficulty in any event in appraising religious practice, and (c) the course I have taken to determine the schooling issue, I do not propose to compare or comment on the various but brief contentions regarding the religious practice of either of the parents.
There is little question that the schools proposed by each of the parents will provide an adequate academic education for [X].[3] That said, the Mother contends that [X] is a gifted child and would benefit from the significant range of [albeit unspecified] opportunities that would come from being schooled at .[G] School.
[3] Annexure C to the Father’s affidavit filed on 28th November 2013 provides an extract from the web-site of the school he proposes for [X] in 2014 and beyond. Moreover, in his oral submissions, Counsel for the Mother said that the school proposed by the Father would not provide a better education than [G], but properly acknowledged that the curriculum at the Father’s proposed school is very good and has a strong focus on literacy and numeracy. Further, very fairly he said that the school proposed by the Father could be a school “equal to … [G].” See Transcript (10th December 2013) p.12.
In this regard the Father notes, and the Court may take some judicial notice of it, that extra-curricular activities at such schools invariably come at a price, often a significant one, in addition to the sizeable school fees.[4]
[4] Because both parents propose [X] attending a private school, I do not propose addressing other costs, such as school uniforms. There is no relevant evidence regarding such things in any event.
Orders have been made already for the parties to attend upon a family consultant for the preparation of a report. At the time of the hearing, and also when the abbreviated oral reasons were delivered, that date was not known. I understand that the appointment with the family consultant has now been notified to the parties, which is 16th April 2014. In the light of that appointment, and to allow for the report to issue and be considered by the parties, in the ordinary course of things, the matter would be adjourned to 20th May at 10am. However, given that the Mother has now appealed the orders made last December, and not knowing when the appeal is likely to be heard, that date will almost certainly have to be revised.
Orders Sought
The interim orders sought by the Applicant Father are as follows:
1.The parents have equal shared parental responsibility for the child [X] (“the child”) born [in] 2008.
2.Forthwith the parents do all things to enrol the child in [S] Primary School and cause the child to attend [S] Primary School commencing February 2014.
3.Both parties be restrained from causing the child to attend or be enrolled in any school save [S] Primary School.
4.The child live with her mother and spend time with her father as follows:
a) From the date of these orders until 20 December 2013:
(i)In week 1: from after school each Friday until afterschool on Monday; and
(ii)In week 2: from after school Thursday until before school Friday.
b) From 9.00am on 3 January 2014 until 4.00pm on 11 January 2014.
c) From Friday 17 January 2014:
(i)In week 1: from after school Friday (or 4.00pm if Friday is a non-school day) until afterschool on Monday (or 4.00pm if Monday is a non-school day); and
(ii)In week 2: from after school Wednesday (or 4.00pm if Wednesday is a non-school day) until before school on Friday (or 9.00am if Friday is a non-school day).
d) From 11.00am until 3.00pm on 25 December 2013.
5.When the child goes from living with/spending time with one parent to living with/spending time with another parent, the parent with whom the child was just living with/spending time with is to deliver the child to the home of the other parent, unless otherwise agreed between the parents in writing.
6.Each of the parents take all reasonable steps to ensure that the child has liberal telephone communication with the non-resident parent, and failing agreement, each Tuesday, Thursday and Saturday between the hours of 6.00pm and 7.00pm with the resident parent to facilitate the child making the telephone call to the other parent.
7.The mother ensure that she is present during any time that the child is in the presence of any member of the [omitted] family (including Mr G) during any time the child lives with her.
8.The mother and father immediately do all things necessary to enrol in and complete a recognised Post Separation Parenting Course.
The interim orders sought by the Respondent Mother are as follows:
1.That the Mother have sole parental responsibility for the child, [X] born [in] 2008.
2.That the child live with the Mother.
3.That the child spend time with the Father as follows:-
a)From after school until 6pm each Wednesday.
b)From 10am until 5pm each Saturday.
4.That in order to facilitate Order 3(a) herein, the Father collect the child from school at the commencement of the time he is to spend with her and deliver her to the Mother’s mother’s residence at the conclusion of the time he is to spend with her.
5.That in order to facilitate Order 3(b) herein, the Father collect and re-deliver the child to the Mother’s mother’s residence at the beginning and conclusion of the time he is to spend with her.
6.That Orders 2,3,5,6 and 7 as sought in the Application in a Case filed 28 November2013 be dismissed.
7.That the child continue to attend [G] School.
8.That the parties be restrained from causing the child to attend or to be enrolled at any school other than [G] School.
9.That the Mother and Father immediately do all things necessary to enrol in and complete a recognised Post Separation Parenting Course.
Evidence of the Parties
The Father’s Affidavit filed 25th September 2013: In this affidavit, the Father deposes to the following matters.
The parties commenced living as a couple in Wollongong in 2007 and separated in September 2010. There is one child of the relationship, [X], who was born [in] 2008, making her now aged five years.
The Mother has a slightly older child from a previous relationship, whose name is [Y], but is otherwise called “[Y]”, who was born [in] 2006. [Y] therefore is aged eight years.
The Father deposes that he has not seen [X] since 18th September 2013. He says that the Mother has said to him that he will not see the child until he signs paperwork to enable [X] to attend [G] School. Subject to any other evidence, the emails between the parties, dated 18th and 19th September 2013, set out at annexure A to this affidavit, support (in large measure) the Father’s contention in this regard.
When in a relationship, the Father initially worked while the Mother studied. He worked for the New South Wales Police. In January 2008 he changed jobs and commenced employment with the Australian Federal Police (“AFP”).
With the AFP, he was required to work overseas in the Solomon Islands for a period of approximately 60 weeks. During this time, he had a working pattern of 16 weeks away and then home for four weeks, three times during the 60-week deployment. The Father says that during his time while working in the Solomon Islands, he would deposit a minimum of $1000 per fortnight into the Mother’s account. He says he also paid the utility bills and that the Mother regularly used his credit card as a secondary cardholder. If necessary, and particularly in the light of the Mother’s contrary assertions regarding the Father’s financial support, such things can be verified in due course.
At paragraph 15 and following, the Father deposes that (a) he would have both children (even though he is not the biological Father of [Y]) for block periods of up to five nights and that this occurred on approximately four occasions; (b) he has had the children for three-day blocks on approximately seven occasions since August 2012; (c) often he would have the children for blocks of two nights; and (d) between the beginning of 2012 and July 2013, the Father estimates that he has had the children for “87 overnight periods”. Most of the arrangements for these periods were made via text message without incident. The Father confirms that he has a transcript of all relevant text messages – on which more later.
The Father says that in September 2012 he sought to regularise the time with the children, such as Tuesday, Saturday and Sunday one week, and Wednesday/Thursday or Thursday/Friday in the alternate week. Other times were to be worked out to help out the other parent as required. The Father says that the Mother agreed for the need for a set plan, but ultimately nothing was agreed. Indeed, in a later paragraph in this affidavit (para.50), the Father deposes that in May 2013, he raised again with the Mother the need to regularise the time the children spend with him and to have set days. He said to her words to the effect that he was not happy with the ongoing ad hoc arrangements and that he thought he would need “to get legal advice.” The Father says that the Mother responded:
You are going to rue this day. I am going to destroy you.
At paragraph 19, the Father says that between August 2012 and August 2013 he was spending two to three nights with the children every week. He says further that the time was stopped by the Mother in August 2013, otherwise noting that he did have a holiday with [X] in Bali for approximately two weeks from late August 2013. There is no contest that [X]’s holiday with her Father in Bali took place.
In paragraph 22, the Father says that he was shown an email on the AFP system by his superintendent which recorded that the Mother had sought advice from a Canberra police station in relation to “child custody arrangements and that tensions over this could escalate into violence”. The Father denied then and denies now that there were/are any allegations against him regarding family (or other) violence. As a result of this inquiry by the Mother, the Father was required to report to the AFP Ethics and Professional Standards body. He is concerned that this allegation now remains on his police employment record. He confirmed that no action was taken against him by his superintendent, or anyone else in the AFP, as a result.
On 8th August, the Mother sent an email to the Father (annexure C to his affidavit) where she says that Relationships Australia advised her to suspend the Father’s time with the children.
On 9th August 2013 the Father’s solicitor wrote directly to the Mother in reply to her email with respect to the Father’s Bali trip with [X] and also suggested that the parties attend Relationships Australia. In this letter, the Father’s lawyers also set out in some detail the reasons why the Father was not taking [Y] to Bali, which had initially been suggested or intimated.
At paragraph 25, the Father says that in January 2013 the Mother had agreed to the Bali holiday, at which time he booked flights and paid for them. In the same paragraph, the Father outlines a number of difficulties in obtaining [X]’s passport from the Mother as well as her immunisation records.
In paragraph 27, the Father says that on 14th August the Father sent a text message to the Mother to confirm [again] her approval of the Bali trip. He says that the Mother did not respond to that text message. This confirmation had previously been sought in the Father’s lawyer’s letter dated 9th August, to which there was also no reply.
On 20th August, however, the Mother sent a text message to the Father asking him to sign school enrolment forms for [X] in relation to [G] School. The Father responded by saying that it was a matter for discussion at mediation.
On 27th August there was something of a contest in relation to picking up the child from school. That was the subject of some further text message correspondence, which I need not detail further.
The Father confirmed that he and [X] went for a family holiday (that is, with members of the Father’s family) to Bali for approximately two weeks in late August and early September 2013.
The Father also confirmed that he went to [X]’s school to see her on 18th September, which is the last time that he saw her, prior to the consent orders in October 2013.
Beginning at paragraph 34 of this affidavit, under the heading “[X]’s schooling and child support”, the Father deals at some length with “the school issue.”
After noting in paragraph 35 that the parents had never previously agreed that [X] would attend [G] School, and that after separation [X] had been moved by the Mother to a day-care centre in [omitted] called the [omitted], the Father says that the Mother approached him in June 2011 to sign a registration form for [X] to start at [E] in 2012. The Father says that he questioned the Mother about moving [X] from her then day-care to which the Mother responded: “If you don’t sign the registration form, I’ll take you to Court for a property settlement.” The Father said that he signed the registration form because he did not want to end up in Court, and because he hoped that the parties could later discuss day-care and schooling issues.
Leaving aside whether or not the Father did or did not know whether the Mother was enrolling the child in pre-school ([E]), the Father says that the Mother proposed that he pay [X]’s school fees in lieu of child support. His child support assessment is $8938 per annum, which is confirmed by the assessment that is annexure E to this affidavit.
The Father says that the school fees at [G] School initially are in excess of $13,000 per annum. In February 2012 when the Father was in the Solomon Islands, he deposes that was earning a tax-free income which, as he notes later in his affidavit, enabled him (with significant reluctance, it would seem) to pay the school fees at the [E] for [X]. The Father confirms that he told the Mother in February 2012 that he did not agree to [X] going to [G] School, and that he would not pay the fees for that school. He says that the Mother then said that if he did not pay the fees, he would not be seeing either of the two children. There was a similar conversation, the Father says, in August 2012, when he returned from the Solomon Islands. He says that because he was afraid of the Mother stopping him seeing the children, he paid the school fees for the [E] from February 2012 until September 2013. He refers in particular to the email exchanges regarding school that are at annexure F to his affidavit.[5] These emails again seem to support the Father’s contentions.
[5] These annexures are almost identical to those that constitute annexure A to this affidavit.
At paragraph 40 of this affidavit, there is recorded a text message from the Mother to the Father (dated 20th August 2013) asking him to drop by the [[G] School] school to sign [X]’s enrolment form. The Father replied saying, among other things, that:
We haven’t spoken about it; need to talk about it in mediation.
In paragraph 41, the Father confirms that he attended [G] School on 11th September 2013. He requested a copy of [X]’s enrolment form. The school said that it could not find it but agreed to mail it to the Father that day. When the form had not arrived by the following day, the Father followed it up with a further email to the school.
Paragraph 42 details various exchanges between the Mother and Father regarding enrolment. Those emails are set out in annexure G. The Father confirmed that he (a) wanted to discuss the issue of [X]’s school, (b) did not give permission for the enrolment, and (c) could not afford the school fees, and instead said that he would pay child support as assessed, which would be paid directly into the Mother’s account. The Mother’s response said, among other things, that she declined permission to the school to provide the information sought by the Father. The Mother’s reply concluded (emphasis added) (I confess, somewhat curiously): “Please contact myself or my solicitor if you require any assistance.” As already noted, there has never been a solicitor on the record for the Mother, or otherwise referred to in any of the material before the Court.
The school’s response to the Father’s inquiries and requests is set out at annexure H to his affidavit. In my view, it is somewhat unusual because it confirmed that the school was seeking legal advice before responding to him. The Father confirmed to the school (a) his request for information regarding his daughter’s enrolment and (b) that he did not consent to [X]’s enrolment at [G] School. On its face, subject to further explanation, the documents provided to the Court seem simply to seek information that any parent might reasonably seek from a school. In such circumstances, why the school needed to seek legal advice is not immediately apparent from the documents currently available to the Court.
The Father also says that in the light of his difficult dealings with the school just to get information regarding his daughter, and because the maternal [relative omitted] works at the school, he has little or no confidence that he could or would be able to secure or develop an appropriate relationship with the school concerning his daughter were she to attend the school.
In paragraph 44, the Father says that while it is his signature on the registration form, it is not his signature on the [E] parents’ response form. Both of these forms constitute annexure I to his affidavit. While I make no formal finding at this stage, I confess that upon comparing the signatures, there does seem to be significant differences between them. This may prove to be a matter of some consequence if it is established that one parent has forged the signature of the other parent.
Finally, in paragraph 45 of this affidavit, the Father says that he could initially afford the school fees because he was earning tax-free income overseas (when in the Solomon Islands). He is no longer doing so and therefore cannot afford them.
The Mother’s Affidavit filed 22nd November 2013: In this affidavit, the Mother says that the Father spent very limited time with the children; that it was really only for a few hours on two days each week when he was in Australia and that there was no overnight time.
The Mother confirms that she stayed at the Father’s residence while he was overseas, but otherwise she says he did not contribute financially to the upkeep of either herself or of [X] (and presumably also of [Y]).
She confirms that there was some agreement with the Father that until November 2010, the Father would not pay child support, but instead he would pay [X]’s school fees for the [E]. She confirmed that he paid these fees until September 2013. She says he has paid no child support since that time.
In paragraph 11 of her affidavit, she says that from August 2012 the Father saw the children on more regular bases, including one overnight each week. Sometimes, she says, this would extend to two overnights. She says, however, that she cannot recall any overnight times that were greater than two nights.
In paragraph 12, she says that the Father advised her in June or July 2013 of the Bali trip, that it was a special family occasion and that those attending would include a number of [X]’s young cousins. The Mother says that she originally agreed only for a five-night holiday, and also on the basis that [Y] would also go to Bali with the Father and with [X]. The Mother says that she offered to pay [Y]’s airfare.[6]
[6] Doubtless receipts, messages, etc can be produced at trial that will confirm which account is the more accurate between the Mother and the Father regarding, among other things, the Bali trip.
In paragraph 13, the Mother says that the Father reneged on taking [Y] to Bali. I observe here that the Father’s email to the Mother of 12th September, and the earlier letter from his lawyers to the Mother dated 9th August, sets out in detail the reasons why the Father ultimately did not take [Y] on the trip to Bali. The Mother’s account is at odds with the two [documentary] contemporaneous records that confirm the Father’s reasons for not taking [Y] to Bali.
The Mother says she feels intimidated by the Father and that if she refused to allow the Father to go to Bali with [X], he would not pay [X]’s school fees. I observe: the fact is (and which is confirmed by the Mother) that the Father had paid [X]’s school fees since August 2012. There is no suggestion, let alone any allegation, that he had ever stopped paying them prior to September 2013, when payment of fees actually ceased.
In paragraph 14, the Mother alleges an (undated) incident where the Father’s partner is said to have screamed at the Mother, among other things, words to the effect:
We are going to take [X] off you...
This stands in contrast to the Father’s Initiating Application (and later Application in a Case), which makes plain that he is seeking only a graduated increase in his time with the child. This is to say that whatever may or may not have been said between the Mother and the Father’s partner, the applications before the Court are clear in the parenting orders sought.
In paragraph 15 of her affidavit, the Mother says that after [X]’s return from the Bali trip, she started to wet the bed. The Mother does not say if/when the bed-wetting stopped, or whether, for example, she took [X] to see any doctor or other health professional to assist with this issue. Presumably, if the matter was serious and or ongoing, the Mother would have sought professional help.
The Mother also says that she is [now] solely responsible for the child’s financial support, and that she was not prepared to allow [X] to spend time with her Father (emphasis added) “unless we attended a mediation or unless there were court orders which would ensure that she would be returned to my care after spending time with the applicant”.
This is a curious paragraph. I say this because (a) the text and other messages before the Court, attached to or referred to in the affidavit material, confirm that, on more than one occasion, the Father has sought that the parties attend mediation (but which has never taken place), and (b) the Mother never alleges in any of her material that the Father has ever kept the child (or children) from the Mother at the end of any time that she (or they) spent with her Father.
The Mother confirms that consent orders were made on 14th October for [X] to spend time with her Father twice every week.
In paragraph 17, the Mother says that overnight time between the Father and the child is not yet in [X]’s best interest. The Mother says [X] is concerned at being separated from her older brother and that [X] is not particularly familiar with the Father’s residence and has not stayed there overnight. It is unclear if this refers to the Father’s earlier residence in [omitted] (where [X] had often stayed overnight) or the Father’s relatively newly acquired residence in the Canberra suburb of [suburb].
The Mother says [X] is well settled at [E], has friends there, and is progressing well. She also says that “[Y] attends this school”.
This statement in relation to [X]’s brother cannot be correct. [Y] clearly does not attend either the [E] (he is too old) or [G] School; and [B] School is at a geographically separate location from both the pre-school and [G] School. Giving every allowance for being a self-represented litigant, it is unclear why the Mother would put such a clearly erroneous statement in her affidavit.
The Father’s Affidavit filed 28th November 2013: In this affidavit, the Father confirmed his opposition (as previously notified to the Mother) to [X] attending [G] School (which is a school conducted under the auspices of the Church of England faith tradition). The Father says he wishes [X] to attend a co-educational school, which [G] School is not. Further, he wishes [X] to attend a Catholic school (he notes that the child and the Mother are both Catholic, as is he).
The Father says that the school fees for [G] School will, in fact, be $11,850 per annum, which fees do not include mandatory fees and levies and the like. He also notes that the Mother’s debt for both children is $7361. The invoice confirming this outstanding amount is annexure B to this affidavit. The invoice was issued on 13 September 2013. It also records that at that time, there was an overdue component of $1153.30.
In paragraph 8 of this affidavit, the Father lists various reasons why the school he proposes ([S] Primary School in [omitted]) is appropriate. Those benefits include its affordability (annual school fees of approximately $1200 plus levies). He lists various friends and relatives who attend the school, which includes a young relative, [name omitted], who also went on the Bali trip with [X].
In paragraph 10, the Father denies the Mother’s assertions regarding his lack of time with both children. For example, he sets out arrangements for 12th August 2012. And at annexure D, he provides a printout of nine and a half pages of 260 or so text and other messages between the parents between August 2012 and August 2013, regarding arrangements for the children.
In my view, these messages are significant, particularly in these interim proceedings, because of (a) their volume, (b) their content, and (c) their contemporaneity, as a record of what was taking place between the parents, over a quite significant period of [recent] time, in relation to the care of, and time which, [X] (and [Y]) spent with her Father (and with her Mother, of course). While they do not appear to be a complete record of messages between them, nonetheless, the volume and regularity of them (which are never challenged in any of the Mother’s material) show, amongst other things, that the parents, for a very significant period of time, have been able to co-parent both children with a remarkable and very pleasing level of cordiality, co-operation and courtesy. Unfortunately, all of these very positive aspects changed, according to the messages (and the Father’s account of events) suddenly in September 2013 when the Father advised the Mother that he would not continue to pay [X]’s school fees at [G] School, both for the balance of 2013, and beyond.
There is also a passing reference to a play arrangement for [X] to spend with her friend [Z], who I infer is the same [Z] referred to in the body of the Father’s affidavit, who will also attend the school which is preferred by the Father.
It is also clear from this large number of messages that the time spent between Father and children on a very regular basis included overnight time. The messages complement the calendar/diary that was provided to the Court by the Father in the course of the hearing on 10th December 2013. Although not assigned an exhibit number at the time, the Court formally allowed the calendar/diary to be put into evidence, on the proviso that the Mother had an opportunity to comment on it. That opportunity was given to her, and she filed a further affidavit on 12th December 2013.[7]
[7] See the general discussion at Transcript (10th December 2013) pp.25-26.
In my view, and without making [as yet] any formal finding, the very large number of messages (primarily “txt messages”) between the parties set out in annexure D to the Father’s affidavit filed on 28th November, on their face seem quite reasonably to support the Father’s Counsel’s contention in relation to the said “diary” recording the number, regularity and frequency of occasions that [X] spent overnight with her Father between August 2012 and September 2013.
It is also clear from those messages that the Mother [also] proposed set days as suggested by the Father (for example, see text messages dated 11th September 2012, 11th February and 3rd August 2013), but again, nothing came from the Mother’s confirmation that ‘set days’ for the children to spend with their Father would be beneficial to all.
And it is clear from these messages that the Father would regularly drop the children to school and/or to and from the maternal Grandmother; that two days with overnights was a common and regular arrangement; and they also record that, for example, both children were excited at spending time with him in December 2012.
In a text message sent on 11th February 2013 regarding parenting arrangements, the Mother asked the Father if he could have the children ‘extra days next week.’ Such a request was not an infrequent occurrence by the Mother. According to this and other text messages, often it was to enable her to have some extra time without the children to prepare for some exam or to finish a particular thesis or paper she was working on at the time.
In another text message (21st March 2013), the Mother again requested the Father, at late notice (which she acknowledged), to care for the children and have them that night, because she was unable to find a babysitter. The Father readily agreed, but indicated that he could not pick them up from school. In other messages, the Father confirmed to the Mother that he did not like being called on as a late notice ‘baby-sitter.’
Among the messages, for example, on 27 April 2013 (time 9.04), is a voice message following a missed call, obviously from [X] to her Father, in which she said:
Hi Daddy, I can’t wait to see you. I love you.
Text messages in May 2013 continue to evidence the regular and extremely co-operative parenting between the parties, which include arrangements for “time with” the children and for drop-off and other arrangements involving the maternal Grandmother.
In one of a number of a text messages sent on 8th June 2013 (time: 21:37), it reads:
[Mr Wemple], would it be okay to have the kids Monday and wed this week instead of thurs so kids can do to dinner?
In response, and not only on this occasion, the Father said to the Mother that he did not want to have the children on separate days each week. He pointed out that it was not in their best interests and that it was disruptive.
Into July 2013, the Mother was still requesting/promoting [X] (or both children) to spend time with the Father. For example, in the course of a number of text messages on 17th July 2013, the Father said:
Just Saturday is no good. Either fri-sat or sat-sun. Kids at our house next weekend is good.
The Mother replied (emphasis added):
Next weekend, as in 27 July? A second day is okay every second weekend. It would be easier to negotiate the second day on an ad hoc basis as it has to fit in with in my work, my mum and whenever you have guests or are going somewhere. [Y] probably won’t come for two nights in a row, but [X] will probably not mind.
The Father responded on the same day as follows:
Yes, as in 27 July. Ad hoc is no good on the extra day. The day has to be set so we can plan stuff. If you need us to look after them extra days, we don’t mind, as long as we’re asked two days earlier. So which is it, fri-sat or sat-sun? We have been trying to get this organised for months. Why is it only now that you’ve decided on this?
The Father sent the following, related text message to the Mother, as part of the on-going discussion, on 23rd July (time: 18:01):
I would like [X] either Friday and Saturday or Saturday and Sunday nights this weekend. It is my weekend to have them. It’s not okay that I have them just one night this weekend because you and your mum have been away. I didn’t say anything when I was there, because I didn’t want to argue in front of [X], so I’m giving you a choice: if I don’t hear back from you, I will assume that it means I get [X] Saturday and Sunday. If [Y] doesn’t want to stay both nights, that’s his choice, but he is more than welcome to stay both.
The next message shown in the sequence is from the Mother on the same date, but not until the recorded time of 21:19, as follows:
If you would like [X] Saturday night that is fine, she needs to be home at 12pm Sunday, please let me know if there are any problems. Thanks, [Ms Dautry].
Again, the cordiality and co-operation is clear.
On 24th July, there are some unfortunate and strange exchanges between the parents which refer to the Father taking [Y] to [sport omitted]. They are prefaced by the Mother advising the Father that she had not agreed to two consecutive nights for the children on a permanent basis. It is sufficient to note the following from those messages:
[Father] Ad hoc for either fri-sat or sat-sun, not ad hoc for the second night. Hence, the reason I am asking you to decide this week for fri-sat or sat-sun
The Mother replied: “One night, then.” The Father responded: “No ad hoc, thanks.” The Father responded a little later (time: 11:21) saying:
I’m entitled to a full weekend, not just one night. Where is [X] going to be Friday and Sunday nights if she’s not with me???
The Mother replied:
This conversation is repetitive so forget the weekend, it is too difficult to organise. Are you having [Y] and [X] tonight? If so, will you take [Y] to [sport omitted] practice at 5 pm?
The Father responded:
Of course we’re having them tonight or have you forgotten that you agreed to Wednesdays as well?
The Mother replied, rather conditionally it would seem (emphasis added):
The question was about [sport omitted]. If you’re not taking him, you can’t have them.
The Father then said:
So now you want to threaten me with not seeing my daughter if I can’t take your son to [sport omitted]?? Unlike you, I don’t go back on my arrangements when it suits. Of course I will be taking [Y] to [sport omitted]. It is an important part of him growing up, just like it’s important for [X] to have time with her Father.
I might note here that in none of the myriad of messages between the parties is there any hint, or allegation, of any fear or anxiety on the Mother’s part in dealing with the Father.
In paragraph 12 of this second affidavit the Father sets out some earlier email and text exchanges between the parents which commence on 15th October 2011. Again, they highlight the cordiality and the detail of parenting arrangements that were able to be made between the parents and how co-operative they were, and had been for quite some time.
In paragraph 14, the Father rejects the Mother’s contention that [X] has not spent any relevant time away from [Y], and he gives a range of examples by way of date, place and event, in one instance, confirmed by text message between the Father and [Y] when [X] was in his care. The copy of the text message is set out in Annexure E to the affidavit.
In paragraph 17, the Father sets out details of [X]’s time that she has spent with him that is more than two consecutive nights. Those extended nights, according to the text messages set out in paragraph 17, begin in July 2013. Absent any evidence to the contrary, on their face, the text messages seem to support the Father’s contention of the Mother’s regular agreement to [X] spending time with her Father and for it to be more than two consecutive nights.
In paragraph 18 and following, the Father sets out a range of recent difficulties that he has had in trying to speak with the Mother from late October 2013, and similarly, his difficulties in attempting to speak with [X].
In paragraph 20, the Father notes that [X] tells him that she has been regularly left to spend nights with the maternal Grandmother. The Father says that he knows this because on each occasion that he spends Saturdays with [X], pursuant to the consent orders made in October 2013, he has picked her up from the Grandmother’s house, where she has slept overnight. The Father also expresses concern that sometimes [X] is not appropriately dressed, even to including sometimes being found wearing her brother [Y]’s underwear and socks.
The Father further notes that the Mother lives in a two bedroom house with [Y] and [X] sharing a room. I need not detail at this time any of the Father’s concerns about the children sharing a room at this age and stage, but he flags it for the future.
The Father confirms that the Mother has never raised with him any issue regarding [X] bedwetting; he says he saw it raised for the first time in the Mother’s affidavit. He also deposes that [X] regularly says how much she wants to spend time with him, especially in his new house where she has her own room.
The Father also disputes that he does not pay child support. Indeed, at annexure G to his affidavit, he attaches his latest child support account and statement for October/November 2013, which (he says) shows that he is in credit with his child support payments.
The Mother’s Affidavit filed 12th December 2013: In this affidavit, the Mother outlines briefly the Anglican faith tradition pursued or practiced at [G] School, and she refers again to the Father’s alleged lack of Catholic faith practice.
The Mother acknowledges that there will be a change in routine necessarily for [X] in 2014, even if she were to go to [G] School, which will mean that she will have less contact with her brother, who goes to [B] School.
The Mother lists a range of [X]’s friends who will be going to [G] School. She also confirms that she was unaware of the Father’s preferred school until she read it in his affidavit material. The Mother confirms that she currently owes $4000 in fees for one term at [E]. She says the school has shown forbearance in school fee payments and for some extension of time for payment. Details of such time and payment are not provided.
The Mother does not comment on the larger outstanding school fee balance (as set out in the invoice of September 2013 to which I have earlier referred) in relation to [Y]’s school fees. The Court simply does not know what, if anything, remains outstanding for [Y] in addition to the outstanding fees for [X]. Indeed, the only information given to the Court regarding [Y]’s fees is that half of them are paid for by the maternal Grandmother. There is no information regarding who pays for the other half, or what impact [Y]’s fees have, if anything, on the Mother’s capacity to pay for [X]’s school fees. And as earlier noted, there is no information from the Mother regarding the ‘time-payment’ arrangement she has secured with [G] School regarding the outstanding fees. Among other things, the Court does not know if this ‘arrangement’ is also intended to cover any future fees, and or whether there is any “cap” on such forbearance, such that once the debt reaches a certain level, the time-payment deal lapses. The Court simply does not know; the Mother has provided quite scant information regarding her financial arrangements – internal and external.
Again, the Mother alleges, as she has done in her earlier affidavit, that the Father has reneged on a previous agreement to pay [X]’s school fees. No details are given in this regard, for example, when or how such an agreement was reached.
In paragraph 10 of this affidavit, the Mother asserts that if the Father pays child support, she will be able to pay school fees. She goes on to say:
… I believe that I would be able to afford to meet the ongoing school fees pending the resolution of any financial proceedings between the applicant and myself regarding adjustment of property and departure from child support assessment.
There are no property proceedings on foot between the parties in this Court, or (so far as the Court is aware) in relation to child support. In such circumstances, the intent and detail of the Mother’s just quoted assertion regarding her financial circumstances remains, at the moment, rather opaque. As she notes at the beginning of it, it is [only or primarily] a statement of “belief.” The factual bases for it are not set out other than in the most general terms.
The Mother deposes that her weekly income is approximately $800 (unfortunately, no information as to the source of her income is given, such as the name of her employer, the position she holds, etc); that she receives $50 per week child support from [Y]’s Father; and that her Mother pays for one half of [Y]’s school fees at [B] School. She also claims not to receive any child support from the applicant Father in this matter. This is so, notwithstanding the Father’s documents attached to his affidavit material, which confirm that he pays it.
The Mother also says that she is looking into other means of “income earning”. Again, unfortunately, no details are provided.
The Mother says again that [X] is well settled at [E]. The direct or other relevance of being settled at [E], which pre-school she will no longer attend because Kindergarten now beckons, is not immediately obvious. Further, the reality is that because [G] School is at least on a different campus to [E], [X] will have to move schools to a different, albeit proximate, geographical locality in any event.
In conclusion, the Mother says that the schooling issue is all about the money, namely that the Father is not prepared to pay for school fees.
For completeness, notwithstanding her Counsel seeking leave on 10th December for the Mother to respond to the Father’s calendar/diary (noted earlier regarding [X]’s time with her Father between August 2012 and September 2013) that was tendered at the interim hearing, the Mother makes no mention of or reference to it in her responding affidavit. Likewise, as I have already remarked, she does not comment on (or indeed challenge) any of the messages set out in the Father’s material, notably in annexure D in his affidavit filed on 28th November 2013.
Outline of Submissions
The Father’s Submissions (filed 6th December 2013): The primary focus of these submissions relates to [X]’s time with her Father. At the outset, Counsel for the Father drew a direct link between the impasse between the parties regarding the choice of [X]’s school (and payment – non-payment of school fees) and the cessation of [X]’s time with her Father.
The submissions then note the contest between the parties “as to who was exerting the threat of financial and litigation pressure upon the other.” Counsel also notes the contest regarding the extent of the Father’s financial support to the Mother (and [X]).
Counsel then outlines the non-contentious matters, thus: (a) [X]’s holiday with the Father (for 13 nights) in Bali between 27th August and 9th September 2013; (b) the regular time [X] had spent with the Father since August 2012 (on the Mother’s account, this was generally weekly; on the Father’s account, it was two to three times per week); and (c) that in September 2013, the Mother ceased to allow the Father to spend time with his daughter.
To this should obviously be added that consent orders were made in October 2013 for the Father to spend time with [X] twice each week, but which did not provide for overnight time.
The submissions simply conclude by contending that regular time for [X] to spend with her Father (including overnight) was important in the promotion of a meaningful relationship between Father and daughter.
In relation to the school issue, Counsel contended that the only matter raised by the Mother in support of [X] attending [G] School in 2014 was set out in para.18 of her original affidavit, filed on 22nd November. That brief paragraph referred to [X] attending [E] for two years, and the Mother’s desire that [X] “continues to attend this school.” It also records that the child was well settled there, feels secure, has numerous friends and is progressing well. As earlier noted, the Mother further [incorrectly] contended that “[Y] also attends this school.”
Counsel says that the Father sets out nine reasons why [X] should not attend [G] School and instead attend the school proposed by the Father. It is also noted that it is far from clear “that the parties will be in a position to fund such an arrangement [for [X] to attend [G] School] in the long term.”
The Mother’s Submissions (filed 12th December 2013): The submissions are themselves styled as being “supplementary” to those that were put orally on 10th December. The primary focus of these submissions relates to the school issue, and then in relation to the “time with” matter.
In no way critically, these submissions repeat, in large measure, what is set out in the Mother’s affidavit material, and also what was put in Counsel’s oral submissions on 10th December 2013.
Summarily stated, they contend that [X] has spent the last two years at [E], and that to attend [G] School would be a continuation of that schooling. [X] is progressing well at school, and has numerous friends at [E] who will continue on to [G] School.
The Mother’s Counsel contends that the Father raises no criticism of [X]’s education. It is further submitted that the Father has never taken [X] to attend Mass, in accordance with Catholic faith practice.
Counsel also submits that the “primary reason” the Father advances for the change in school is because of his inability to pay the fees at [G] School. In this regard, Counsel says that the Father “provides no detailed evidence as to present income or financial position or as to why he is no longer able to pay [X]’s school fees as he has done in the past.”
I simply observe here that the Father set out in his affidavit material noted earlier in these reasons exactly why he is no longer able to pay the school fees sought by the Mother, namely that he no longer earns tax-free income as he did when he was on assignment with the AFP in the Solomon Islands.
Counsel repeats the Mother’s contention that (a) if she is paid child support as presently assessed, she believes she will be able to meet the fees at [G] School, and (b) the Mother has not received any child support since separation. Counsel does not address the documents from the Child Support Agency that are annexed to the Father’s affidavit material.
I simply note here that, on the Father’s documentary evidence from the Child Support Agency, he has been paying child support regularly. Notwithstanding this occurring, the Mother has already incurred a significant debt for pre-school fees. How she can maintain a submission that if child support is paid at the assessed rate she will be able to afford [even] higher school fees is not immediately apparent on the material currently available to the Court.
Finally, Counsel submits that (a) [G] School provides a stable and secure educational environment for [X], (b) the children (including a cousin of [X]) referred to by the Father in his material are either not known to the Mother or do not have the relationship with [X] for which the Father contends; and (c) [G] School is a convenient walk from the Mother’s residence.
Finally, regarding the school issue, Counsel contends that it is such a serious step that it should not be done at an interim hearing, but instead should await until there is a family report and oral evidence from both parties.
In relation to this last submission I simply observe:
(a) In none of the earlier court events (i.e. prior to the hearing on 10th December 2013) was there a challenge to when/how the Court should deal with the matters put in issue between the parties, including fixing the date for the interim hearing to accommodate the Mother’s Counsel in particular;[8]
(b) At the time of the hearing on 10th December, the only thing known about the family report was that it had been ordered, and a date would be notified to the parties in due course. In the usual course of things, such appointments from this registry are usually allocated in three or four months from the date of the order. As things have transpired, and allowing for the Christmas-January recess, a date has been allocated in mid-April 2014;
(c) Final hearing dates in this Court in this registry are already listed out until the second half of 2014. This was advised to both Counsel (with the parties present in Court) in the course of the hearing on 10th December;[9]
(d) Not to make a decision about school would leave the parties still in contest, and precisely over the same issue. This would also be in circumstances where the Court has uncontested evidence that the Mother has already incurred a significant debt for unpaid school fees, and has been required to enter into some deferred-payment scheme for them, the details of which she has not put before the Court. Further, the Mother’s evidence remains at a significant level of generality and aspiration regarding her income and capacity to pay the substantial school fees required at [G] School. Finally, the Mother provides no evidence in relation to her son’s school fees at [B] School, other than that her Mother pays for half of them.
(e) Not to decide this issue would leave the parties with the prospect of [X] (perhaps) having to change schools at a later, and therefore likely more disruptive, time, instead of commencing school at the beginning of the school year, which grows ever-more imminent.
[8] At the hearing on 10th December 2013, Counsel for the Mother submitted that the schooling issue should not be dealt with at such a hearing and should await a report from a family consultant.
[9] See Transcript (10th December 2013) p.21.
For completeness, I should also record that at the outset of the hearing on 10th December, Counsel for the Mother sought to adduce further evidence from the Mother in response to the Father’s Application in a Case filed on 28th November. Instead, I suggested to Counsel that his client could put on an affidavit that would reply to matters raised by the Father. Then followed this exchange (emphasis added):[10]
[10] Transcript (10th December 2013) p.4.
HIS HONOUR: Well, there were a range of issues raised. But, obviously, it’s subject to hearing from Mr Gill. We only have a very limited time this afternoon because I have got a range of other matters listed also for urgent hearing. I’m just thinking out loud whether or not it might be possible to deal with whatever other matters that your client wishes to put before the court by way of either just a very, very short affidavit in reply and you can annex anything else. I mean, I don't want to be stringing this out so that someone, you know, has to reply to this and someone else has to reply to that, etcetera.
MR HODGSON: No. Of course, your Honour.
HIS HONOUR: Because, ultimately, a decision has to be made and reasonably quickly in terms of – well, really, both issues. But certainly the schooling one, obviously, the sooner people know the better. But is there any difficulty with proceeding in that way? Again, I would just be concerned if we get into any oral evidence, that we’re not going to finish this afternoon.
MR HODGSON: Yes. Well, your Honour, it’s really only the matters I would seek to respond to. It would be just the – the matters relating specifically to the schooling. I mean, I can indicate from the bar table what they are or what my client would say, if that assists on an interim basis. But, I could endeavour ‑ ‑ ‑
HIS HONOUR: But – sorry. But I thought that really amongst other things that the schooling issue really is to be dealt with, effectively, on a final basis is it not?
MR HODGSON: That would be my – that certainly would be my submission, your Honour.
HIS HONOUR: I mean, it’s just got to be dealt with. End of story.
MR HODGSON: Yes.
After this exchange, Counsel for the Mother then moved to interim parenting (“time-with”) matters.
Later in the hearing, Counsel for the Mother again raised the matter of interim or final hearing regarding the “school issue” and in response to the Father’s Counsel opposing any adjournment of its consideration and determination.
After noting that a report would not be available for months, and that the “school issue has been on the table for months”, the following further exchange took place (emphasis added):[11]
[11] Transcript (10th December 2013) pp.8-9.
HIS HONOUR: Why can’t I determine both of these issues of time with and schooling, but especially schooling; a) on the basis of what’s before the court; b) if I give your client a very short time to put on whatever other things that you have intimated she wishes to ..... – yes.
MR HODGSON: Would that be today, your Honour, to try and get an affidavit together today? Or ‑ ‑ ‑
HIS HONOUR: Well, no, I’m sort of thinking, you know, say if your client is able to put on affidavit, say by lunch time on Thursday, something like that, just so that she has at least a little time to put on whatever the things are that you have indicated. I can hear submissions, and then if there’s anything further, because I want to be able to, I don’t know how of course, but I want to be able to give everyone some decision before the court rises on 20 December.
MR HODGSON: Yes your Honour.
HIS HONOUR: Because parties need to know what they’re going to do, and the child needs to know what she is going to do next year for schooling, does she not?
MR HODGSON: Yes. No, no, that’s – without any doubt, that’s .....
HIS HONOUR: So procedurally, what insuperable problem might that course pose, Mr Hodgson?
MR HODGSON: Your Honour, I’m happy to try and put an affidavit on within the next couple of days, and if I can make submissions based upon my undertaking that what my submissions will be about will be what will be in the affidavit, I’m happy for that course if that’s suitable to your Honour. And I can also tender – seek to tender some material, obviously today which I have, being the school report and various other – some other school documents and other bits and pieces. But if I can indicate to your Honour, that – and respond specifically to those matters that are in the affidavit which deal with the school issue, I know there has been ‑ ‑ ‑
HIS HONOUR: Certainly, but obviously they would need to be in the most abbreviated form; I understand that.
MR HODGSON: Yes, of course.
HIS HONOUR: Yes. ....., but I grant leave to the mother to put on an affidavit which must be limited to no more than five pages by midday on 12 December, dealing specifically with a [sic] school issue. And Mr Hodgson, you have until close of business on that day to put on any written submissions of no more than two pages, which would obviously be supplementary to whatever else we hear today.
MR HODGSON: Thank you. Yes, I’m happy with that course. Yes, your Honour.
It is convenient at this juncture also to note that towards the end of his oral submissions regarding parenting (i.e. the ‘time-with’ aspect), the Mother’s Counsel said (emphasis added):[12]
MR HODGSON: And it doesn’t appear that the father asserts that he spent long, continuous periods such as half-school holidays, or whatever, with the child. It has been fairly short overnight periods so that he has – that he asserts he has spent with the child. So, your Honour, the mother essentially would seek that the status quo – assuming the orders that your Honour had made in October continued. Obviously, it may well be that your Honour will consider that it’s appropriate in the circumstances for the father to have some time overnight.
[12] Transcript (10th December 2013) p.23.
It might be said that this submission by the Mother’s Counsel could be taken as no opposition to some limited, overnight time for [X] to spend with her Father. Indeed, a little later in his submission, Counsel said:[13]
So it may well be that your Honour would be minded to make some order that permitting the father to have some time during the school holidays, for some – would, in my submission, a short block period, having regard to [X]’s age and having regard to previous circumstances which have existed, and there seem to be an implicit semi-concession by the father in his original affidavit that any orders that should be made should be of some sort of graduated nature than suddenly imposing upon the child a situation of, it would appear, five nights – five nights in every fortnight period to the father.
So, certainly, in my submission, that it would be appropriate, if your Honour were minded for there to be overnight contact, for that to be graduated in, and for some, perhaps, review of that situation to occur after your Honour’s orders have been implemented for some time, basically to ascertain how [X] is coping with that, how she’s coping with the separation from the mother, how she’s coping with being separated from her brother, [Y], during these periods of time….
[13] Transcript (10th December 2013) p.23.
In relation to parenting, and primarily in relation to the ‘diary’ submitted by the Father, Counsel for the Mother submitted that from August until December 2012, when [X] and [Y] “appeared” to stay overnight at the Father’s residence, there were significant periods when the Father did not see [X]. It was further submitted that between December 2012 and July 2013, there were three occasions only when [X] spent three (3) consecutive nights with her Father.
Counsel noted that the Bali trip where [X] spent 12 consecutive nights with the Father is the longest continuous period she has spent alone with him. He further submitted that otherwise she alone has spent no more than 3 consecutive nights with the Father in a sixteen month period. And it was further submitted that since 9th September 2013, [X] has not spent any overnight time with her Father.
To state the obvious: this last submission conveniently overlooks the [acknowledged] fact that the Mother stopped the Father having time with [X] in September 2013, and which was only restored pursuant to consent orders made in October.
Counsel then provided his assessment of the ‘diary’ and set out, according to it, the number of nights [X] has spent with the Father between August 2012 and December 2013. For reasons just given, I do not intend to consider the “nil” entries for October – December 2013.
Counsel submitted that on the basis of his analysis of the diary, the pattern of time [X] spent with her Father was “irregular and infrequent.” On the basis of this, and in the absence of a report, Counsel said that the Court should be cautious in the exercise of its discretion in making orders for [X] to spend continuous nights with her Father. In the event that the Court considered it to be in [X]’s best interests to spend time with her Father, it should be on a graduated basis.
The Father’s Submissions in Reply (filed on 13th December 2013): Briefly, these submissions point to the Mother’s confirmation of her current outstanding debt to [G] School in relation to school fees. The Father’s Counsel submitted that the Mother cannot afford [X]’s attendance at [G] School.
Next, Counsel observed that the current child support assessment is based on [X] living with the Mother “100%” of the time.[14] In the Mother’s final orders sought, set out in her Response filed on 22nd November 2013, the Mother “concedes” that on a final basis [X] should spend regular nights with her Father on a fortnightly basis. It was submitted that this would have the result that there would be less child support payable to the Mother, which would impact further on the Mother’s [lack of] capacity to pay [G] School fees. Further, it would be more disruptive to [X] to start at [G] School and then be forced to leave the school because of her Mother’s inability to pay the fees.
[14] Exhibit A is a letter from Child Support to the Mother, dated 22nd November 2013, which confirms that based on information recently received, as from 9th September [X] is 100% in the Mother’s care, and on this basis, an assessment of child support will be in the sum of $1001.25 per month (until 30th June 2014). After that date, it will rise to $1302.00 per month.
Regarding the ‘diary’ and the Mother’s Counsel’s submissions in relation to it, the Father’s Counsel pointed out that the information it records has been mis-interpreted. Counsel submitted that the diary entries had been incorrectly understood as referring only to “day-time” between Father and daughter. However, as Counsel observed at the time, and in my own reading of it, the diary makes reasonably clear when the time has been for only during the day, such as the entry for 16th July 2013 which simply records the initials of the children followed by the entry “(day)”.
The correct understanding of the diary, it was submitted, indicates [X]’s time with her Father is approximately double that for which the Mother contends. Thus, the frequency and regularity of nights [X] spent with her Father between August 2012 and September 2013 is: August 2012 – 9 nights; September – 10 nights; October – 8 nights; November – 12 nights; December – 9 nights (6 of them with [X] only); January 2013 – 4 nights; February – 10 nights; March – 13 nights; April – 8 nights; May – 12 nights; June – 5 nights; July – 11 nights; August – 6 nights; September – 8 nights.
In conclusion, but still by way of observation only: absent any other evidence at trial, the extensive and unchallenged (by the Mother) contemporaneous (mostly “text or SMS”) messages between the parties from August 2012 until September 2013 that are set out in or annexed to the Father’s affidavit material support the Father’s account of the regularity/frequency, and duration of [X]’s (and [Y]’s) time with him.
The Legislative Pathway & Discussion
The legislative pathway must be adhered to, and not in any formulaic way. It is a legislatively mandated means, albeit a cumbrous one, to one specific end: to enable the Court, in the exercise of its discretion (in this instance, in the regularly perilous situation of an interim hearing where there is little or no uncontested evidence, and in otherwise urgent circumstances), pursuant to s.60CA of the Act to determine what orders are ultimately and paramountly in the best interests of the child who is the subject of the proceeding.
For current purposes, the following summary of principle by Brown J Mazorskiv Albright in relation to Part VII of the Act is sufficient (noting, of course, the relevant statutory changes to the primary and additional considerations in relation to “family violence”). Respectfully, I adopt Brown J’s overview of relevant sections (and principles) of Part VII of the Act. Her Honour’s comments should, of course (as I have said), be considered in the light of relevant statutory changes, for example, to s.60CC(3)(c).[15] At [3] – [6] her Honour said:
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[15] (2008) 37 Fam LR 518. Her Honour’s remarks in relation to the “twin pillars” have been consistently cited with approval by the Full Court, for example in Moose & Moose (2008) FLC ¶93-375; McCall v Clark (2009) 41 Fam LR 483; Sigley v Evor (2011) 44 Fam LR 439; Shaeffer v Jacobs (2011) FLC ¶93-468; Maluka v Maluka (2012) 45 Fam LR 129.
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” At [20] - [26], her Honour outlined a range of relevant considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[16]
[16] Brown J’s remarks in this regard have been endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335] similarly approved Brown J’s remarks.
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) – (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationship with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Against this overview of principle, I note the following.
It is regularly recognised (as I have already noted) that making orders in interim proceedings, where there is limited or much contested evidence, is a difficult exercise.[17] It is especially so when there are elements of risk or urgency involved. In this case, there are really (or primarily) only elements of urgency. But precisely because of that urgency, some of which came about because of the procedural lags occasioned when the Mother was self-represented, it means that the Court does not have the benefit of a report. In a large number of matters (including this one), it must necessarily make interim decisions on the basis only of contested evidence.
[17] See in particular, the Full Court’s comments in Goode at [81] and [82].
Other than briefly at the hearing on 10th December, at none of the prior court-events was there any application that the matter should be adjourned until a report was available. Given the need (and obvious desire) of the parties to have the matter determined on an urgent basis (particularly regarding which school [X] would attend), the Court did not, on its own motion, adjourn the matter until a report was available.[18] Further, as previously noted, Counsel for the Mother ultimately agreed for the matter to proceed on the basis that the Mother had an opportunity to put further affidavit evidence before the Court (which she did) and that Counsel could address any other matters in supplementary submissions (which he did).
[18] See the discussion by the Full Court in Vasser v Taylor-Black (2008) 37 Fam LR 256.
Indeed, as remarked earlier in these reasons, at the time of the hearing in December 2013, the Court did not (and could not) know, other than in general terms, when a report would be obtained. This was noted to Counsel at the time, and that it could be approximately four months or so until an appointment with a family consultant was secured. And to record again, a final hearing would not be available until some time into the second half of 2014. To leave both issues – school and ‘time-with’ – until a report became available, in my view, did not serve the child’s best interests, or those of her parents for that matter.
Again by way of general observation, and subject to what is said later in these reasons, there is sufficient evidence from both parties (with different emphases, to be sure) to confirm that [X] has historically spent, both in terms of frequency and duration, not insignificant time with her Father, such as the holiday to Bali in August/September in 2013, and as recorded in the very significant number of text and other messages that are set out in, or annexed to, the Father’s two affidavits filed in the proceedings.
The evidence, in my view, particularly having regard to the extremely good communication between the parties prior to September 2013 regarding parenting, only supports rather than negatives the presumption in s.61DA of the Act in relation to equal shared parental responsibility. That order should be made.
To the degree that the Court can determine in interim proceedings any matters in accordance with the legislative pathway, there is no doubt at least that [X]’s primary carer has been and will remain her Mother.[19]
[19] I have already noted the Full Court’s frank acknowledgement of the regular difficulties that attend interim proceedings in Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422 at [81] & [82].
In general terms at least, it seems not to be challenged that [X] has a good relationship with both parents. There is a contest between the parties regarding the time [X] has spent (and the regularity of it) with her Father, as well as (on the Mother’s evidence) regarding the Father’s exercise of responsibilities in relation to child support.[20]
[20] In what follows, I should be taken to follow sequentially, without necessarily naming each sub-paragraph, the order of additional considerations as they appear in s.60CC(3).
Without making any formal finding, and as I have already remarked, the extensive messages between the parties over a very considerable period of time, recorded by the Father and set out in or attached to his affidavit material, as well as what is recorded in the diary tendered on his behalf, suggest strongly that the time that [X] has spent with her Father has been both regular and significant, including very regular overnight time.
Save for what is recorded in one very positive “voice message” left for her Father, there are no relevant “views” of the child to consider.
By all accounts, [X] has a good and close relationship with her older brother, [Y], a child of the Mother from a previous relationship. The parenting arrangements proposed will not, in my view, impact adversely on [X]’s relationship with him.
Apart from inference, there is no evidence before the Court regarding [X]’s relationship with her maternal Grandmother who seems to have a regular role in caring for her. Likewise, other than passing reference in the affidavit material there is nothing before the Court regarding [X]’s relationship with the Father’s partner. Such matters will, presumably, be attended to either in the family report and or through later affidavit evidence if the matter proceeds to trial.
Again the volume of messages between the parties, and the long period to which they refer, point to the earnest way in which both parents have communicated and made parenting arrangements regarding [X] (and her brother).[21] Both parents, in different ways, have sought to raise the importance of attendance at mediation to resolve the ‘school issue.’ The messages indicate that the Father, in particular, has sought this often and over a significant period of time, but to no avail.
[21] See s.60CC(3)(c).
Although the Mother contends that she has been, or feels, intimidated by the Father, and apart from the incident recorded in an email shown to the Father by his Superintendent regarding the Mother’s concerns that the parenting matter might escalate, there are no allegations of family violence for the Court to consider.[22] Indeed, the messages record no hint of concern by the Mother in her dealings with the Father. Up until 2013, cordiality, courtesy and co-operation have been features of the parenting relationship. Such features only make the current contest even more regrettable.
[22] This should be taken as the Court’s consideration of the matters set out in ss.60CC(2)(b), 60CC(2A), and 60CC(3)(j).
Nor are there any issues about the practical difficulty of [X] spending time with her Father, or that either parent cannot reasonably provide and care for her when she is in their care.[23] Again, the extensive messages between the parties put before the Court challenge any issues in this regard. Certainly there is no suggestion by the Mother against the Father in this regard in any of those messages. In my view, this also speaks (to some degree at least) to the capacity of each parent to provide for [X] (and [Y]). Further, given the relative proximity of the parents’ living situation in Canberra, I do not understand there to be any issue regarding the child’s change in living circumstances under the orders the Court proposes.[24]
[23] See, for example, s.60CC(3)(ca) and (e), (f) & (g).
[24] See s.60CC(3)(d).
The limited scope of the orders proposed, in my view, is least likely to lead to the institution of further proceedings. This is so because both parties propose a cautious and or graduated approach in the Father’s time with [X]. Again, in the light of the so-called ‘documentary history’ recorded in the messages between the parties, the time proposed by the Court is very modest and fits in readily with the regular (but regularly ad hoc) approach to parenting between August 2012 and September 2013.
In such circumstances, and without making any finding, it is nonetheless difficult not to link the Mother’s desire for [X] to attend [G] School, and the Father’s refusal to pay the fees for that school, to the Mother’s sudden denial of [X] spending time with her Father. Such is suggested, in any event, in the Father’s submissions. Absent resolution by consent, such matters will doubtless be explored at some length at the trial. Subject to when the appeal is determined, that trial will now likely not be until quite some time into the future.
Parenting Orders: Conclusion
In my view, [X] needs proper and regular time with her Father. Until the detail of the family report is available, having regard to the precepts and responsibilities of the Court in the legislative pathway in Part VII of the Act as summarised by Brown J in Mazorski v Albright, and in accordance with [X]’s best interests (s.60CA), on an interim basis, the time with her Father should be from after school on Friday until before school on Monday each alternate weekend, and one overnight in the off week from after school one day until before school the next day; that night is to be agreed as between the parties. In my view, this is a modest but regular arrangement (a) until there is a report, and (b) which is supported by the regularity of [X]’s time with her Father as recorded in the detailed history of messages between the parties put before the Court.
In the absence of such agreement that night in the off week shall be Thursday night. Also in the absence of written agreement and until the family report becomes available this regime should also apply for the school holidays as well.
[X] should be able to telephone her Mother at any reasonable time when she is in the care of her Father (and vice versa). There will also be an order for equal shared parental responsibility.
The time that I propose, in my view, is not only in [X]’s best interests, but it also conforms generally to the prescriptions of section 65DAA in relation to substantial and significant time, especially where (a) there are no issues of impracticability; (b) the Father does not seek an order for equal time (certainly not on an interim basis); and (c) there are no general or specific issues that either parent cannot, or will not, adequately provide for [X], having regard to her age and needs, in any relevant respect.
The comments just made regarding compliance with s.65DAA should be understood, of course, in the light of the High Court’s comments in MRR v GR, particularly at [13] and [15].[25]
[25] MRR v GR (2010) 240 CLR 461.
The School Issue
As already intimated much earlier in these unfortunately long reasons, such matters are invariably difficult.
I have already outlined in general terms the competing contentions by the parties, not least by the Mother as to [X]’s giftedness and the continuity, such as it is or might be, regarding school and friendships between the [E] and [G] School. For my part, however, there are some significant flaws or problems in the Mother’s arguments: most of them are financial.
Firstly, her affidavit filed on 12th December is unfortunately couched in considerably general terms. These range from the lack of detail about her research position: it is not specified if she is employed on a permanent, part-time or some other basis; nor is there detail as to the institution at which he is employed.
In this same affidavit, particularly at paragraphs 8 and 10, the Mother confirmed that (a) she already remains in debt to the school in the sum of $4000 for the 2013 pre-school fees at [E]; (b) she has already entered into an arrangement for the extended payment of these fees; and (c) she would be dependent on funds from a variety of sources (including child support) to meet [X]’s fees; her direct income is very imprecisely defined. And further, apart from passing reference in the course of Counsel’s submissions that the debt in relation to her son’s school fees is now paid (in circumstances where her Mother pays half of his fees anyway), there remain many gaps in the Mother’s financial detail before the Court which serve only to give even greater concern about her capacity to meet her financial obligations in relation to fees of the magnitude required for [X] to attend the school that her Mother most earnestly wishes her to attend.
The Father confirms, as I have already said, that he cannot afford to pay [X]’s school fees at [G] School even if he were minded to agree to the Mother’s proposal.
In all of the circumstances, in my view, it is not in the child’s best interests, or the parents’ best interests either, to incur the very substantial cost of school fees where the Court cannot be confident and, in fact, is extremely doubtful that the fees can or will be paid. Moreover, it seems to me that it is a recipe – or at least a potential one – for disaster to be dependent to any relevant degree on the forbearance of a school to allow school fee debt to be incurred and the outstanding fees to be placed on a time payment plan, particularly in circumstances where even before school begins there is already a very significant debt outstanding from the previous year’s more modest fees.
In all of these circumstances, the orders in relation to schooling, as sought by the Father, should be made. In my view, they too are in [X]’s best interests.
Finally, it remains simply to make the following observation. Boiled down, the evidence suggests that the parties are inherently good parents, who have co-operated very well for a significant period of time in relation to [X]’s (and [Y]’s) care and other arrangements. Unfortunately, they are now at an impasse over money for school fees (not to mention a sizeable outstanding debt owing by the Mother), and a school for five year old [X] to attend. One hates to think of the cost already borne, and the costs to come (financial, emotional and other), on the parents and both children if this litigation continues. I trust that this might be a sobering thought. It is for the parents alone to contemplate.
I certify that the preceding one hundred and ninety-one (191) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 3 February 2013
2
6
1