High School in Dispute

High School in Dispute

Bach & Bach [2016] FCCA 26 (13 January 2016)

The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FCCA/2016/26.html

Issues

15. The sole issue between the parties appears to be the choice of high school for their daughter to attend at the beginning of Term 1 2016.

Evidence

16. The Father relied on his affidavit of 9^th September 2015, filed in support of his Application, although he also deposed that he continued to rely on his affidavits filed on 12^th August and 12^th November 2014.
17. There does not appear to be any particular matters of relevance in either of the two affidavits from 2014. Paragraphs [14] to [33] of the Father’s affidavit deal with his wish for X to attend (omitted) College at (omitted).
18. The Father’s reasons for the child to start High School at (omitted) School appear to be:
    1. The child’s current primary school, (omitted), is a feeder school for (omitted) School;^[1]
    2. The parties’ son Y attends (omitted) School, where he has just completed Year 11;^[2]
    100. Although he signed an application form for X to attend school at (omitted), he does not want the child to go there;^[3]
    4. The school fees for (omitted) are approximately $18,000.00 per annum, but the estimated fees for X to attend (omitted) School would be approximately $6,000.00 per annum, as the fees would be discounted because she would be the second child attending the school;^[4] and
    5. He cannot afford the school fees for (omitted) but he estimates that he can afford to pay half of the annual school fees for (omitted) School.^[5]
19. The Father deposed that he informed (omitted) both orally and in writing that he withdrew his consent for the child to attend school at (omitted).^[6]
20. On 5^th August 2015 the Father contacted the Registrar at (omitted) School and states that he was informed X would be given priority to be enrolled as a student because she is a sibling of a child already attending the school.^[7]
21. The Mother relied on her affidavit of 27^th October 2015, filed in support of her Response.
22. In her affidavit, the Mother set out her reasons for wanting X to attend school at (omitted) School in paragraphs [20] to 54].
23. It is the Mother’s evidence that she and the Father had both considered that (omitted) was their first choice for X to attend.^[8] She and the Father attended an interview at (omitted) in mid to late March 2014 and were later informed by letter that the child’s enrolment at (omitted) was successful.^[9]
24. The child has expressed enthusiasm at the prospect of attending school at (omitted).^[10]
25. The Mother deposed that on 13^th September 2015 she telephoned the Registrar at (omitted) School and was informed that there were no current vacancies at the school, but X would have a higher position on the waiting list because she is the sibling of a current student.^[11]
26. The Mother deposed that the school fees for (omitted) are approximately $16,290.00 per annum plus incidental costs. However, the fees for X in Year 7 would be $13,290.00 because the Mother has already paid a deposit of $3,000.00 in 2014. From 2017 the parties’ son Y will no longer be attending school. The Mother stated that she and the Father currently pay approximately $10,000.00 per year for school fees and incidentals for Y and X together.^[12]
27. The Mother expressed the opinion that “(omitted) is a school that very much meets X’s needs”.^[13]
28. The Mother also deposed that it is her intention once these proceedings are completed to purchase a property in an area that will be accessible to (omitted).^[14]

Conclusions

29. The Full Court of the Family Court held in Re G: Children’s Schooling^[15]that:
    1. The best interests of the child are the paramount consideration;^[16]
    2. there is no legal presumption in favour of the residence parent and, correspondingly, no hurdle or onus faced by the other parent, that is not to say that the reality of the children residing predominantly with one parent has no relevance;^[17]
    100. it is a question of weight to be put on or should be placed on either party’s assessment of the benefit to the child of a change or otherwise in schools;
    4. where prima facie two schools are satisfactory, weight should be placed on a school that is closer;
    5. the objects and principles in s.60B are to be taken into account;^[18] and
    6. the best interests of the child involve a consideration of the relevant matters in s.60CC(3) of the Family Law Act 1975.
30. There is no evidence that either of the two schools would not offer the child a good secondary education. The parties appear to have investigated the situation with the two schools and formed a view that their particular choice of school is suitable for the child, although the father’s concerns about the estimated expense have clearly changed his view about sending X to (omitted).
31. It certainly was the case that the parties originally agreed that X should go to (omitted). There has been a submission that neither parent will be able to afford to send the child there in the present circumstances.
32. What is important is that the child has to go to High School at the commencement of the first school term this year. She has a confirmed place at (omitted), but she does not have a confirmed place at (omitted) School.
33. If it is the case that the parents are unable to meet the child’s school fees, then it is likely that the child will have to be withdrawn and placed into a school which the parents can afford. That may be the local High School.
34. At this stage, as the child has a confirmed place at (omitted), I am satisfied that her best interests indicate that she should start her High School education there and I will order accordingly. The question of the feasibility of the parents paying the child’s fees can be argued at the final hearing.
35. There is no order in force about parental responsibility, although the Mother in her Response to an Application in a Case seeks an order that the parties should have equal shared parental responsibility. It is certainly the case that subsection 61DA(3) of the Act provides that when the Court is making an interim order, the presumption of equal shared parental responsibility applies unless the Court considers that it would not be appropriate in the circumstances, but there is a final hearing due to take place in about five weeks’ time.
36. Section 61DB of the Act provides that if there is an interim parenting order in relation to a child, the court must, in making a final parenting order, disregard the allocation of parental responsibility made in the interim order.
37. In the circumstances, there seems to be little point in making an order in relation to parental responsibility.