Choosing School – a recent Federal Circuit Court case

Barlow & Gunn [2015] FCCA 2817 (22 October 2015)

Last Updated: 11 November 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

Legislation:
 Family Law Act 1975 , s.60CC

Kirkland v Granger [2007] FamCA 1471
Re G: Children’s Schooling [2000] FamCA 462

REPRESENTATION

ORDERS

(1) That the parents do all acts and things necessary to enrol the children to attend (omitted) College at the commencement of the school year in 2017.
(2) From the commencement of the school year in 2017 until they graduate high school, the parties shall do all acts and things to ensure that the children attend (omitted) College.

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

MLC 11113 of 2013

Applicant

And

Respondent

REASONS FOR JUDGMENT

1. The issues the Court has to determine in this case are narrow. The proceedings were transferred from the Family Court to the Federal Circuit Court to determine the outstanding issue of parental responsibility with respect to decisions concerning education and choice of schools for the children.
2. Initially there was a dispute between the parties as to whether or not they should attend a (religion omitted) high school. They attend a (religion omitted) primary school. However, this issue was no longer an issue in dispute at the hearing because the reality is that the mother cannot afford to send the children to a (religion omitted) high school unless the father pays half. The father says he is unable to do that.
3. The disagreement about the children’s schools primarily relates to the logistical challenges that the parents face. The logistical challenges are made worse by the fact that neither proposed school is well serviced by public transport. Both schools are in growth areas and are relatively new having only been established in the last five or six years. It is for this reason that there has been so much focus on driving distances from the parties’ respective homes and workplaces.
4. Apart from the issue concerning parental responsibility the issues I am asked to determine are as follows:
   1. Whether or not X should complete her primary school years at (omitted) Primary School or attend (omitted) College in (omitted) in 2017 when she will be in year five. Her older brother Y, under the mother’s proposal will commence year seven at (omitted) College in 2017.
   2. Whether or not the children should attend high school at (omitted) College in (omitted) or (omitted) Secondary College.
5. Final consent orders were made on 24 December 2013 which provided for the parents to have equal shared parental responsibility and for a shared care arrangement whereby the children spend eight nights a fortnight in their mother’s care and six nights a fortnight in their father’s care. It is not in dispute that the children spend the majority of their time with the mother during school holidays.
6. Order 9 of the 2013 consent orders restrain the father from leaving the children in the sole care of his father Mr R or allowing the children to be in the presence of his father without another adult being substantially present and supervising the children.
7. The mother brought a further application to the Family Court in April 2015. The parties entered into further consent orders on 25 June 2015. Those orders provided that if the father decides to move in with his father Mr R, then he must give the mother seven days written notice; in the event he does live with his father, the father’s overnight time be suspended and the children spend time with the father during daytime periods only, on Saturdays and Sundays from 9am until 7pm on alternate weekends and during school terms, each week from after school until 7pm on Wednesdays and Thursdays. The orders also permitted the mother to enrol the children at (omitted) College and (omitted) College with a notation that the father did not agree to the children attending either of those schools. Order 6 transferred the proceedings to the Federal Circuit Court for a half day hearing to determine the question about which parent should make the decision about what secondary school the children will attend.
8. The parties also resolved the property proceedings in the Family Court with consent orders made on 15 December 2014.
9. The father represented himself at the hearing. It is clear that the father sees the problems as being caused by the mother moving to (omitted). The father remains in the former matrimonial home in (omitted). It is necessary to remind the father that the issue before this Court related to school or schooling only. The reality is that the mother lives in (omitted) and works in the (omitted) and that the father lives in (omitted) and works in (omitted). The parties and the children have to work around this reality.
10. There is no doubt that (omitted) College is significantly closer to the mother’s home than the father’s home. It is for this reason that the mother makes the proposal in her orders sought to collect the children from school on Wednesdays and Thursdays with the father to collect the children from her home when he finishes work. She says she was doing this in the past until there was a falling out. The mother proposes that she will collect the children from the father’s home every Thursday and Friday morning at 7.45am and drive the children to school in (omitted). She also proposes that the father collect the children from her home at 5.30pm on Wednesdays and Thursdays and every second Friday. She says that her proposal means that she will be sharing the driving responsibilities with the father. The father did not indicate that this is something he would want to take the mother up on. He may prefer to use before or after school care.
11. The mother has the assistance of her parents who live close to (omitted). Her father currently assists by picking up the children from school on Monday. Her father gave evidence in her case. He is clearly devoted to his grandchildren and gave evidence that if the mother needed him to, he was able take the children to school and pick them up from school every day including from the school that the father proposes. I accept that the paternal grandfather is genuine in that offer but of course the reality is that it might be a lot more burdensome and tiring than he might anticipate. He is not a party to the proceedings and his assistance cannot be relied upon in a substantial and ongoing basis, although I have no doubt he will continue to assist when he can.
12. The mother works three days a week. She gave evidence that in October or November each year she can choose which days she is going to work the following year. The father suggested that her timetable was variable and that she was not able to guarantee that her work arrangements would be as she expected. He appeared to be confusing work days with the timetable. The mother has been working in that employment for the past 14 years and I accept her evidence on this point.
13. The mother says that the school in (omitted) is more appropriate for the children because the children spend more time in her care. The mother readily acknowledged that this time is marginally more during the school term but says that during school holidays, the father has never sought to spend half the holidays with the children. The consent orders from 2013 provide that in the absence of the father seeking more time with the children that for his week the term time orders continue. This means the mother has the care of the children for the greater period during the school holidays. She says the children should have the opportunity to participate in extra-curricular activities and spend time with their friends in their local area. This in combination with the fact that the mother has the children for an extra night during school terms is a relevant factor.
14. The mother says the children are a strong source of support for each other and she thinks that the children would be of support for each other if they started (omitted) College in the same year despite the fact that Y would be starting high school and X would still be in primary school. With respect to this issue, the father strongly opposes the mother’s proposal and says that it would be in X’s best interests to complete her primary school years at her current school. In that regard, he places a lot of reliance on an email from an Ms E from the Department of Health and Human Services wherein she states the children would benefit from remaining at the same primary school following their parent’s separation. Ms E did not provide this email in the context of the current dispute about schools. Her email is dated 23 June 2015. It is brief and primarily refers to issues relating to the paternal grandfather. Ms E was not available for cross-examination. It is certainly a common recommendation, and a matter of common sense that ideally, they should remain at their school after their parents’ separation, as a school often represents a safe haven for the children away from the conflict between their parents. The mother points out that by the beginning of 2017, the parents would have been separated for four years, therefore that recommendation carries less weight. I accept the mother’s submission in that regard.
15. The real issue of the children attending (omitted) College at the same time is about logistics, assuming that the mother’s proposal is accepted. I place more weight on the inconvenience of having the children at two different schools which are not well serviced by public transport than I do on the children starting at the same school at the same time. If the father is successful in his proposal then this issue does not arise as his proposed high school does not have a primary school attached to it and he does not propose to take X out of her current primary school.
16. The mother says the advantage of her proposal is that the children will not have to attend before or after-school care and will not spend periods of time at home unsupervised. The children currently do attend after-school care on Mondays. The mother says that is so that X can attend her swimming lesson which can be on either Monday or Tuesday afternoon
17. The father says that the children have not expressed an interest in extra-curricular activities and are not sporty. He does acknowledge leaving the children unsupervised on alternate Fridays for about an hour or so and proposes to continue to do this. He says he is able to take his lunch hour later in the afternoon so that he can collect the children from school assuming they attend (omitted) Secondary College and return to work. The father says there is nothing wrong with this and thinks that it gives the children a sense of responsibility. The mother disagrees with this, pointing out that the children are only nine and eleven and she feels that even in their early high school years, they need to be supervised so that they get into a good routine, doing homework and so on.
18. The mother opposes the children attending (omitted) Secondary College not only because of the distance and the difficulties with public transport but because of that school’s performance. At paragraph 35 of her affidavit affirmed and filed on 2 September 2015, she says that she and the father had a conversation about that school before they separated and said that they agreed that they did not want the children to attend that school because it had poor VCE results as well as poor numeracy and literacy results. The majority of its students are socially disadvantaged and the school caters for children going onto vocational training. The father did not cross-examine the mother about this paragraph. The performance of the school has some significance.
19. It is agreed that the children’s NAPLAN results show that the children are advanced in literacy and about average in numeracy.
20. The father sought to rely on the travel estimates and the driving distance as shown on printouts from Google maps in some instances but sought to query their accuracy in other instances. It is simply not possible for the father to pick and choose which Google maps he wishes to rely on. At best, the maps provide some general guidance but they cannot be relied upon as being accurate in various traffic conditions.
21. The father places a lot of emphasis in maintaining a meaningful relationship with the children and the loss of quality time with the children if the mother’s proposal is successful. I do not accept the father’s submissions in this regard. Whilst there will be greater travel time for him and the children will either be in after-school care or in the mother’s care, there is no evidence to suggest that his relationship with the children will suffer in any real way. It is not simply a matter of counting out the hours that are available in the day. It is notable that he does not maximise potential time he could spend with the children during school holidays. This is not a criticism of the father. It is likely that this just reflects the reality of the father’s work commitments and the fact that he does not have family members who can assist him with child care.
22. The Court also cannot ignore the fact that the June 2015 orders provide for the possibility that the father may only see the children during the day if he chooses to move in with his father. The father says he does not intend to do so, but that order cannot be ignored.
23. The mother’s position at the end of the hearing was still that she would like to have sole parental responsibility for the children’s education. I indicated at the end of evidence that I did not think that the evidence supported an order modifying the equal shared parental responsibility order in place currently to provide for one parent to have sole parental responsibility for decisions relating to the children’s education. This is not a case where one parent is disinterested in the children’s education or where there are issues of family violence or any necessity for there to be injunctions preventing one parent from attending the children’s school. Both parties are actively involved in their children’s care and are interested in their education. Allocation of sole parental responsibility regarding education to either the father or mother would effectively disenfranchise the other parent who has significant responsibility of the children is likely to cause resentment and increase conflict between the parties which would have a negative impact on the children.
24. The choice of school is one of the categories of major issues which parents who have equal shared parental responsibility should exercise together. In circumstances such as this when the parents are unable to agree, the task falls to the Court. See for example Kirkland v Granger [2007] FamCA 1471.
25. For reasons I have discussed I do not think it is in the children’s best interests that one of the parties has sole parental responsibility for decisions with respect to the children’s schooling. The issue left to determine is the choice of schools.
26. The Full Court of the Family Court considered the proper approach to schooling issues in Re G: Children’s Schooling [2000] FamCA 462. The Full Court found that the trial judge had erred in giving preference to the proposal of the residence parent. It is necessary to consider the competing proposals of the parties. However, this is not to say that the Court should ignore the reality of the children’s living arrangements. In that case, there was some evidence about the children’s views and anxiety about changing schools which whilst not determinative are relevant considerations. There is no evidence about these issues in this case. Whilst the mother says the children are close, the reality is that when they attend (omitted) College, one will still be in primary school and the other will be in high school on different schedules and are unlikely to interact much with each other.
27. The Full Court has also identified other relevant factors as being:

the views of the child when appropriate;
any prior agreement in selection of schooling;
any change to existing arrangements;
any anxiety the child may experience as a result of changing peer groups;
the views of the parties about the effect of the change on the child;
travel time to school; and
costs of education.
The Court made the point that this list is not exhaustive and that the relevant factors will vary in accordance with individual circumstances.

28. I turn to the relevant subsections of section 60CC of the  Family Law Act 1975  (Cth) as the issue in dispute is a narrow one. These orders will not affect the meaningful relationship the parties and the children enjoy. I have no evidence as to the children’s views. There is no issue of concern about the parents’ capacities to provide for the children’s needs or for their attitudes towards the responsibilities of parenthood. The issue in this case is really about the practical difficulties in getting the children to and from their schools and their parent’s home. I suspect that if the schools in the parents’ areas were well serviced by public transport the parents would have been able to reach an agreement.
29. On balance in my view the factors favour the mother’s proposal. This is primarily because the children spend more time in her care during the holidays and the during school terms.
30. In my view the children should attend (omitted) College at the same time, again because of the logistics. Given the lack of public transport available to the schools, it makes sense to have the children attend the same school rather than two different schools which would involve more inconvenience for the parents.
31. The mother has offered to provide the father with additional support in taking the children to school and having the children in her care until the father is available to collect them. The father did not indicate any inclination to take the mother up on that offer. In those circumstances I will not make those orders. The father may prefer to make alternate arrangements. If he decides he would like the mother’s assistance, he can approach her about that.