WP and WDJ - Children's Schooling
[2003] FMCAfam 597
•5 December 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WP & WDJ: CHILDREN’S SCHOOLING | [2003] FMCAfam 597 |
| FAMILY LAW – Children – change of circumstances – residence – children’s schooling – best interests of child. COSTS – Circumstances justifying order. Family Law Act 1975 (Cth), ss.60B; 65E; 68F; 117 Re G: Children's schooling (2000) FLC 93-025 |
| Applicant: | P W |
| Respondent: | D J W |
| File No: | PAM 2113 of 2002 |
| Delivered on: | 5 December 2003 |
| Delivered at: | Parramatta |
| Hearing date: | 5 December 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
The Applicant appeared on his own behalf.
| Solicitor for the Respondent: | Ms Bevan |
| Solicitors for the Respondent: | Sarah Bevan & Associates |
ORDERS
All that part of the Application filed on 29 April 2003 relating to the child N L W born 7 April 1988 is withdrawn.
The remainder of the Application relating to the child A C W born
18 November 1992 is dismissed.The Applicant is to pay the Respondent’s costs of these proceedings in the sum of $2250.00.
The Applicant is given four (4) months in which to comply with the costs Order.
The Application is removed from the Pending Cases List.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 2113 of 2002
| P W |
Applicant
And
| D J W |
Respondent
REASONS FOR JUDGMENT
Application
The application before the Court is an application by the father for certain orders relating to the schooling of the children, N and A. The mother, in her response, had opposed these orders. Between the time when this matter commenced and when the matter was heard, the child, N, had been accepted for the G Selective High School for years 11 and 12 commencing in 2004. This placement at high school is one that is acceptable to both parties and indeed meets their wishes. The applicant indicated to the Court that as a result he did not seek to proceed any further with orders relating to the child, N. Accordingly, that part of the application will be withdrawn.
The part of the application that is in contention relates to the parties' daughter, A C W, who was born on the 18th November 1992. A is currently at primary school where she is in year five. The application is in these terms:
a)Should an application for A to enrol in year 6 in 2004 at S P Grammar School at P be successful, then she attend that school with a view to her continuing into high school in 2005 at S P.
b)Should a place not become available for year 6 in 2004, then an application be made for her to enrol in year 7 in 2005.
The consequent orders that were sought were set out to provide that if A were able to gain a place at S P in either 2004 or 2005 then on and from the 1st January of the year in which she commences at that school, that the current orders of the residence be varied to provide that A should reside with her father rather than her mother and that the mother would have contact with her at certain times. The application is opposed by the mother.
The history of the matter is that the parties were married on the 31st May 1981 and they separated in June of 1997 and were divorced in December of 1998. There are three children of the marriage, T, born on the 15th October 1985 and therefore aged 18, N, born on the 7th April 1988 and aged 15 and the subject child, A, born on the 18th November 1992. She is currently aged 11.
The orders that are currently in force relating to the children's residence are consent orders which were made on the 29th August 2002 at the Federal Magistrates Court of Australia at Parramatta before Barnes FM. As a consequence of those orders, T, who is now an adult, lives with the father, N and A live with the mother. T attends P High School, which is a selective high school. He is in Year 12. He is currently going through the strain of the Higher School Certificate.
N attends N High School but, as I indicated earlier, he will go to G High School in 2004 to start Year 11. G, as I have mentioned, is a selective high school. The child, A, attends the D R primary school where she is in Year 5. Previously A has attended R primary school for kindergarten and Year 1. She then went to T E public school where she was in year two. She has been at the D R public school since the year 2001 where she has done year's three to five.
The mother has formed a new relationship and there is some evidence that the father has too, although neither of those parties has played any prominent role in these proceedings.
The mother currently lives at W but has made arrangements to move to the S suburb of T. The difference in distance is a matter of only a few kilometres and will be of no effect. The father lives at K.
It is common ground that the communication between the parties is not good. There is a history of some acrimony between them and this has been reflected in the proceedings and also in the Family Report. At the hearing of this matter on Wednesday 3rd December I heard evidence from the father and from the mother. The Family and Child Counsellor or welfare officer who prepared the Family Report, Mr R H, also attended Court and was available for cross-examination.
The issues before the Court are seen by the parties in different ways and that became clear even during the hearing. The father has always maintained that the thrust of his application is towards the educational needs of the child rather than residence and that residence will only become an issue once the educational needs are decided. The mother sees the father's application as a disguised version of a straight out application to vary the consent orders relating to A's place of residence.
There have been preliminary proceedings. There was an earlier application where indeed what is known as a Rice and Asplund1 application was made, asking the Court to dismiss the father's application as no change to the circumstances sufficient to warrant reinvestigation of the issue of residence had been shown. That application was heard before me and I dismissed it, so the matter proceeded.
1 (1979) FLC 90-725
There was a further interlocutory application made by the father to permit the child, A, to attend for an interview at S P Grammar School for the purpose of assessing her suitability to attend at S P to commence year six in 2004. That application was opposed by the mother but again I took the view that the application should be granted as it was relevant to the proceedings to know whether in fact the child would be able to attend S P in 2004 or indeed in 2005.
The father's position is that the question of the child's schooling is the paramount consideration; the primary focus of his application, and that the question of where the child lives will only follow on from that.
He made it clear during the proceedings that he would wish A to attend S P whether or not she remains living with her mother or whether she resides with him. I am satisfied that I should deal with the application in the way that the father submits is appropriate, namely, that the question of the child's schooling is the primary issue.
The Family Report, which was prepared subject to my direction, perhaps seemed to deal with the matter the other way, that the question of the child's schooling or the appropriate school for the child, was more or less left as a factual issue for the Court to determine and the counsellor concerned concentrated mainly on the residence issues. In the Report it was made clear that A impressed as an intelligent young girl who loves both parents and did not wish to be placed in a position of having to choose between them. She did not express a strong view either way about change of residence. She acknowledged that should she change residences she would miss her friends but was hopeful that she might maintain these relationships through the Internet.
That belief was seen by the counsellor as not entirely realistic and he took it as more indicative of her desire to appear unaffected by any decision and therefore impartial in the decision making process. The counsellor took the view that the parents appeared to making decisions in isolation from one another, with the result that the children are placed in the centre of the disagreements and are uncomfortable about this.
The counsellor interviewed the child, T, who is now an adult, and T gave his opinion, for what it is worth, that A should remain living with the mother. He was not able to give any strong reasons. The father is of the view that the reasons given by T are as much related to the stressors of the relationship between the father and T as they may be in a consideration of A's position.
It is noteworthy that T indicated that he had been living with his father, that he was going through the HSC and expressed some view that upon obtaining employment he may return to live with the mother. Where T chooses to live is not a decision for this Court to make as he is an adult. The father's view is that the child, A, should attend S P Grammar School and commence there for year six and then go on to high school. His view about commencing in year six is that it would ease her transition into high school, she would just go on.
The mother opposes this and opposes this quite strongly, both going into S P at year six or going to S P for high school. She says that if A is to go to a private school rather than a high school it should be the C A High School, which is situated in D R, W.
C A is a high school in the Catholic system and I have been provided with material from both C A and also from S P Grammar.
The father's position is that if A goes to S P he will pay for it. If A is to go to C A, his view is that the fees, which are significantly less, are ones that can be met by the mother.
The mother disputes this. She says she cannot afford C A and gave some evidence as to what she thought that the fees were based on what she was told by a work colleague. The belief of the mother as to what the fees would be differs significantly from the material quoted in the printout from the web site that the father submitted and which I admitted into evidence. On the material given by the father, C A would not be as expensive as the mother believes.
The evidence appears to be that so far as S P Grammar or C A are concerned, both of them appear to be good schools which offer a variety of activities which would assist their students. C A is part of the Catholic system and not surprisingly would give priority to children of the Catholic faith, particularly children from the local parish. I was given no evidence as to the religious beliefs or particular faiths of the parents so I cannot make a pronouncement as to the likelihood of success regarding a place at C A High School is concerned. I am aware, however, that S P Grammar would accept A and indeed they would be prepared to make a place available for her in year six in 2004, which is what the father would prefer.
What the Court must look at from the point of view of legal principles, are the best interests of the child. I was not referred to any authority but I have had the opportunity of reading the decision of the Full Court of the Family Court in Re G: Children's schooling (2000) FLC 93-025. That was an appeal from a decision of a single Judge of the Family Court. In that case the full Court reaffirmed that the best interests of the child was the paramount consideration. The Full Court made it clear that the wishes of the children concerned and appropriate siblings was a matter that the Court would take into account.
The Full Court made it clear that the earlier decision of Newbery (1977) FLC 90-205 is no longer good law. That was a decision where it had been held by a single judge that the parent with whom the child resides has the right to choose the school. What the Full Court said was that there is no legal presumption in favour of the residence parent but that is not to say that the reality of the child residing predominantly with one parent has no relevance. As in Re G: Children’s schooling (supra), the principles set out in section 60B of the Family Law Act 1975 are not of a great deal of assistance. I note that this is not a case where there has been a prior agreement between the parties as to whether the child would be attending a particular school or a private school generally. I note that neither of the child's brothers attends a private school but each of the boys is either attending or is about to attend a selective high school. I was of course reminded of the matters that the Court must consider relating to the welfare of the children set out in section 68F(2) of the Family Law Act.
The question of the school is a matter that I would consider first. The mother is of the view that the child, A, is of above average intelligence but not significantly above average intelligence. The counsellor described her as intelligent but the mother's view is that the child academically is not as bright as either of her brothers. Accordingly, she does not believe that the child would necessarily have the intellectual ability to benefit from the type of education, which a school such as S P would offer. Unlike her brothers, who, as I said, are in or are going to selective high schools, which is agreed by the parties as clearly to their benefit.
The father's view is that the mother is perhaps not taking as positive a view of the child's ability to respond to what he sees as a superior eduction as she might and his views are, as a principle, that parents should do all that they can to give their children the best possible education consistent with their means and with the arrangements in their lives. It is for this reason why S P appeals to him. I have had the opportunity of reading through the material from S P and I certainly have no doubt that it is a school that would offer a good education to a child and would certainly offer education abilities, certainly for a child who wishes to go on to tertiary education.
At the same time, the material provided about C A would seem to indicate that it too would offer appropriate educational opportunities and the mother would be of the view, if finance were not a problem, that that would be a good school for the child to attend because it is situated quite close to her workplace at W. One of the mother's concerns about S P is its location in the C area near P, which would involve a degree of travel and inconvenience.
The father is somewhat critical of the primary education that the child has received. He is critical of the fact that she has been to three different primary schools. As I indicated earlier, she went to R public, then she went to T E and then she went to D R where she now is. The material would indicate that she seems to be doing reasonably well. The father does not believe that she is as happy at that school as the mother seems to be but that is very much a matter of opinion.
The mother believes that it would not be appropriate to move A from D R school. It is a school where she says the child is happy, she has friends, it is accessible from where she currently lives and will be accessible from where she will be living with the child next year. It is a consideration, however, that the second limb of the father's application, that if the child is to go to S P that she should reside with him. The question of distance and travel would be a matter that the travel would be far easier if the child were to live with him and whereas if the child were to go to S P would still remain living with her mother at the new residence in T it would involve a considerable amount of travel for the child which would not necessarily be in her best interests. It is significant that the child then would be no longer living with her elder brother N, although I note the fact that the more older brother, T, currently resides with the father. On the statements that T made to the counsellor that may not be the situation in 2004 if he obtains employment. He told the counsellor that he was thinking that he might reside with the mother.
The child's wishes are not strong one way or another and certainly it is a view that the child seems to have a strong and positive relationship with each parent. She loves each parent and enjoys the time with them. She has certainly made inquiries about S P Grammar as to what would happen, what would she be able to do etcetera. I do not take that as such to be a strong wish to attend S P, rather than quite reasonable inquires by a child, whose schooling was being decided by one or other parent, as to what the situation would be like if she goes there.
There is no issue that the child has a good relationship with each parent. There is no issue that she seems to have a good relationship with her siblings and they with her. There is no issue that the parents have the ability to meet A's needs financially. The father's financial position appears to be better than that of the mother but there is no suggestion that the mother is not in a position where she cannot meet the child's needs. As far as dealing with the child's intellectual needs, it is the father's view that he is playing the stronger role there, that he has a greater consideration for the child's intellectual needs than the mother.
He appears somewhat frustrated that the mother does not appreciate that if the child does not go just to the local high school, N, but were to go to a school such as S P, that this would be an educational benefit to her. The mother denies that that is in fact the case.
The lack of communication between the parents is a matter which would have an emotional effect on this child and there is perhaps a query as to whether the parents appreciate the effect that being torn between two parents, each of whom they love, can have on children. This is not a case where the Court is looking at any risk of harm to the children. There are no apprehended violence orders. There are no family violence allegations. This is not a situation where there are any particular issues of ethnicity or Aboriginality that need to be taken into account. There are no other matters such as a particular religious upbringing or lack thereof, which the Court needs to take into account. The best interests of the child is the paramount consideration.
I am of the view that this is an application where the primary focus is on the child's education and the father's view that once the school is decided, then the question of residence may then be considered, is the view that I consider that I should adopt. I have read through all of this material carefully. I have no doubt that both S P Grammar and C A High School would offer suitable high school accommodation for this child. I am mindful of the fact that she is in year five and is about to go into year six. The mother believes that the child should remain in year six at D R where she has been since year three.
She acknowledged that there had been changes to primary schools and gave evidence that she had promised the child that once she got to D R that there would be no more changes and the child would complete her primary education at the one school. There is some strength to this argument. The father's view is that if A were to commence at S P Grammar in year six rather than at high school, that this would give her a head start or an easier transition into high school.
Certainly, if the child is already on the same premises and knows her way around the school in year six, there is a reduced transition to high school because the child does not need to become familiar with premises, the school rules and the general operation of the school, the school culture so to speak. She is already there.
Against this, there is no evidence that it is the practice of S P for children to start at year six rather than starting year seven as is the case with most high schools, be they public or private. The child would be taken out of her normal school environment where she is familiar, and in the normal course of things, in year six, would be in amongst a group of children that she was not aware. Unless there was a large intake of children commencing the school in year six, she would be one of the few new children in an established group. If, as is the case normally, the child were to commence high school in year seven, whatever high school that may be, she would be one of a group who were all commencing together and would be dealt with as a group. It is common practice that school systems conduct orientation programs to deal with the transition from primary school to high school.
If I were considering this application the way the mother believes that I should consider this application, namely that this is no more than an application to change residence, I would not be persuaded that it was in this child's interests to do just that. I am, however, considering this matter in the way that the father urges upon me, to look at the child's schooling as the immediate consideration and then to look at residence as a consequence of that decision. In this case I am not satisfied that it is in the child's best interests to leave her current primary school and go into year six at S P Grammar or for that matter any other school.
I am of the belief that it would be to this child's benefit to continue her primary education in the school where she is currently enrolled. There is nothing before me which would indicate that the primary education which she is receiving at D R is not in her best interests. She would remain amongst her peers in an atmosphere which she knows and where it appears that she seems to be doing well. Perhaps not as well as the father thinks that she could but I am not satisfied that there is a ground for her to change schools in primary school yet again.
It certainly appears to me that it would not normally be in a child's best interest to go to four different schools for her primary education. The educational system is certainly set up to cope with the transition from primary school to high school.
It is for those reasons that I am satisfied that A should remain at D R and do year six at D R Primary. There would certainly appear to be shown therefore no circumstances which would justify the change of the child's residence. The father's application for the child to go to high school at S P would perhaps have been on stronger ground had the Court been looking at what would happen in year seven. Against this, however, is the consideration that according to the father's current work arrangements, even though there is evidence that his work arrangements are flexible and he has a sympathetic employer, it would still leave the situation where if the child were to go to S P and if she were residing with the father she would, if necessity, spend some time in after school care before her father would be able to attend to her. By comparison, with the mother's arrangements, this does not seem to be the case.
A proposal to change residence which would separate A from her brother, N, would not seem to be in her best interests unless there was some evidence that she was going to spend some more time with her elder brother, T, as the evidence from the Family Report seems to suggest that the contrary may be the case. If the situation were to arise in 2004 that N and T were living with their mother and A were living with her father, or even in 2005, then I would have doubts as to whether that was in the child's best interests.
It is for these reasons then that I propose to dismiss the application.
Costs
Ms Bevan, the mother's solicitor, has made an oral application for costs to be awarded in favour of her client for the final hearing. She pointed out that the father had been unsuccessful in his application for final orders. She does not seek costs for either of the two interlocutory applications brought by the father, as he was successful in both of those.
The matters that I have to consider are, as Mr W reminded me, the starting point in sub-section117 (1) is that each party to proceedings shall bear his or her own costs. Sub-section (2) provides that if the Court is of the opinion that there are circumstances that justify it, the Court may make such order for costs as it considers just. That gives the Court a discretion but there are some guidelines in sub-section (2)(a) as to how that Court should exercise its discretion. The point about the financial circumstances of the parties is relevant and it is put to me by Mr W that the apparent financial disparity between them is not as great as would appear at face value just by considering the relative salaries and in fairness Ms Bevan has conceded that there is some force to that point and I believe that there is.
There is no dispute that he is paying a significant amount of child support per month and he has contact with the children on a regular basis and pays for a variety of things for the children's benefit. This is not a case where either party is in receipt of assistance by way of a grant of legal aid. As far as the conduct of the parties to the proceedings is concerned, the matter was heard on Wednesday and I expressed appreciation for the focussed and sensible way in which the proceedings were run. I would have expected no less from counsel but Mr W also prepared his material in an appropriate way and dealt with his side of the case in an appropriate way. This is not a case where the proceedings were necessitated by the failure of a party to comply with any previous Court order. It is a case where the applicant has been unsuccessful in the final hearing, notwithstanding the fact that he was successful on two interlocutory applications.
It is not a matter where there was any offer of settlement that would be taken into account and that tends to occur more in financial matters before the Court. There is of course no general principle that costs orders are not made in children's matters and even though that alleged principle is sometimes put up to me in this Court, I am mindful of the fact that the motivation for the father's application, as I referred in my decision, was securing the most advantageous educational situation for originally his children but in the application before me, his daughter.
I take all those matters into account. I accept the fact that the matters in respect of N had resolved to the parties satisfaction prior to the hearing and I accept the fact that the father was, if you like, committed to the final hearing of his application unless he were to withdraw completely.
There did not appear to be any middle ground as the parties were even apart on the question of C A High School, which was not in fact put up in the mother's response as an order that the Court should make.
On balance I am satisfied that this is a matter where the father's application has been unsuccessful. The mother was obliged to obtain legal representation to meet the application. I do not know her educational qualifications, although she certainly did not appear to me to be as articulate as the father is and it may well have been that whilst the father was capable of arguing a case before the Court, the mother may not have felt herself in that position. The father, I would say, was more capable in arguing his case than many unrepresented litigants and it should not be said that the Court encourages people not to be legally represented. I would make it quite clear that the reverse is true.
The fact is that the application has been unsuccessful and I believe that the mother should have some relief in costs and I propose to make an order on the question of costs. I am also of the belief that until a Court has decided whether or not it should make a costs order, it should not even consider the quantum of costs, they are two separate issues. I am of the view there should be some relief.
I indicated that I would make an order for costs on the basis that the application was wholly unsuccessful and I have had figures put to me by Ms Bevan which amount of $5137.50, which includes an advocacy loading for the hearing on Wednesday, and indeed I am quite satisfied that counsel appeared. The point at Mr W makes in reply is not that he disputes that the figures are correctly worked out from the rules but that an order for costs of that magnitude would not be reasonable and that it would be more punitive. He points out that again the motivation of his application was one intended to go towards the best interests of the children.
I am mindful that sub-section 117(2) whilst allowing a costs order in certain circumstances:
Permits the Court to make such order as to costs and security for costs as the Court considers just.
I have already commented on the fact that the application was well prepared and well run. It was certainly not a frivolous application and it was an arguable case. The unfortunate situation is, as far as the applicant is concerned, is that after considering all the evidence at some length, which I was not in a position to do and most reluctant to do on the spot, that the decision has gone against him. I am of the belief that an order for costs of the magnitude in excess of $5000 would be unnecessarily punitive and I am not of the belief that such an order would be just.
It is for these reasons that I make the Orders set out at the commencement of this decision.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 19 January 2004
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