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Carrick & Carrick [2022] FedCFamC2F  1692  (8 December 2022)

Last Updated: 14 February 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Carrick & Carrick  [2022] FedCFamC2F 1692 

File number(s):	SYC 3921 of 2017
Judgment of:	JUDGE ELDERSHAW
Date of judgment:	8 December 2022
Catchwords:	FAMILY LAW – PARENTING – CHILDREN – SCHOOLING – Where the mother seeks for the child to attend B School upon a position becoming available – Where in the alternative the mother seeks for the child to attend C School – Where the father seeks the child attend D School – Where there is issue as to if there is a prior agreement about the child’s secondary schooling – Where the child has a confirmed place at both schools – Where the child has distinct developmental and academic needs – Where the child is more familiar with one school over the other – Where on the balance the factors considered favour D School – Where the Court declines to make a positive finding that there is a prior agreement about the child’s secondary schooling – Where there is a question as if the school fees can be secured – Where the child shall attend D School conditional upon the father filing an Undertaking to the Court as to fees
Legislation:	Family Law Act 1975 (Cth) ss 62B, 65DA(2), 106A, 121
Cases cited:	Aldridge & Keaton (2009) FLC 93-421; [2009] FamCAFC 229 Raymond & Harold [2009] FamCA 155 Re G: Children’s Schooling (2000) FLC 93-025; [2000] FamCA 462
Division:	Division 2 Family Law
Number of paragraphs:	125
Date of hearing:	5 December 2022
Place:	Sydney
Counsel for the Applicant:	Ms Carter
Solicitor for the Applicant:	Walter & Elliott Family Lawyers
Counsel for the Respondent:	Dr Barnett SC
Solicitor for the Respondent:	Gayle Meredith & Associates

ORDERS

ON A FINAL BASIS THE COURT ORDERS THAT:

X’s Schooling

1. Provided that the father files and serves an Undertaking in the terms as set out at Notation A herein by no later than 4.00 pm on 9 December 2022, then commencing Term 1 of 2023, X born in 2011 (“X”) shall attend D School (“D School”) at Suburb E for her secondary education.
2. If the father fails to file the Undertaking as described in Order 1 herein, then X shall attend C School (“C School”) at Suburb F commencing Term 1 of 2023 for her secondary education.
3. The parties shall do all acts and things to complete X’s enrolment at D School or C School as the case may be.

Other Matters

4. Pursuant to s 121 of the Family Law Act 1975 (Cth), the parties have leave to provide a copy of these Orders and the father’s Undertaking, as described in Order 1 herein if given, to the school at which X is enrolled for her secondary education.
5. In the event either party refuses or neglects to execute any deed or instrument within fourteen days of being requested to do so for the purpose of giving effect to these Orders, then a Registrar of the Federal Circuit and Family Court of Australia be appointed pursuant to s 106A of the Act to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.
6. Pursuant to ss 62B and 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
7. All outstanding applications are otherwise dismissed and the proceedings are removed from the list of matters awaiting finalisation.

THE COURT NOTES THAT:

1. I, Mr Carrick, undertake to pay X’s tuition fees at D School (“D School’) as follows:

   (a) In 2023, the total tuition fees less $7,470; and

   (b) In 2024 and each year of X’s secondary education after that, the total tuition fess less the amount equal of one half of the tuition fees at C School, Suburb F (“C School”) for the same calendar year.

REASONS FOR JUDGMENT

JUDGE ELDERSHAW:

1. These proceedings concern which school the eldest of the parties’ children, X born in 2011 (“X”), should attend from the commencement of Term 1 in 2023, when she will enter Year 7.
2. The Applicant mother is Ms Carrick born in 1983 (“the mother”). The Respondent father is Mr Carrick born in 1983 (“the father”).
3. The children of the parties are X, Y born in 2013 (“Y”) and currently 9 years of age, and Z born in 2015 (“Z”) and nearly 8 years of age.
4. The mother’s primary application is for X to attend G School, Suburb H (“G School”) upon a position becoming available. Should a position not become available for X to attend G School by the end of the 2022 school year, the mother seeks that X be enrolled at C School, Suburb F (“C School”).
5. The father seeks that X attend D School, Suburb E (“D School”).
6. The mother relies on her affidavits filed 19 September 2022 and 25 November 2022. The father relies on his affidavits filed 25 October 2022 and 1 December 2022, and the affidavit of his mother, Ms J filed 25 October 2022.

BACKGROUND

Parties work and living arrangements

7. The mother lives at Suburb K in a home she and her partner purchased in late 2021. Prior to that, the mother lived in her own home at Suburb L.
8. The mother is employed as a professional and works four days per week. The mother’s workplace is located in Sydney’s Central Business District (“CBD”). She gave evidence that she works in the CBD office two days per week. She later said that she works in the CBD “one to two” days per week. Regardless, the mother can work in the CBD two days per week. The mother works in a shared workspace at Suburb H for the remainder of her working week.
9. On days the mother works in the CBD, she commutes to work by private car or bus. When the mother drives to work, she travels via M Road and the N Freeway. She parks her car under the building in which she works. The turnoff to Suburb E where D School is located can be made from the N Freeway.
10. The mother lives with her fiancé, who has three children from a prior relationship, aged 12, 10 and 8 years. Those children spend time with their father four nights per fortnight during school term including alternate weekends.
11. Since October 2022, the father has resided at Suburb O in rental accommodation. For about four years prior to that, the father lived in rental accommodation at Suburb F. The father is employed full time as a professional with Employer P. His workplace is in the Sydney CBD. The father commutes to his workplace four days per week by ferry or car and sometimes jogs to work. The father tries to work from home on Wednesdays.

Consent Orders and current arrangements

12. Pursuant to Consent Orders made in 2018 (“the Consent Orders”), the parties have equal shared parental responsibility for the children, the children live with the mother, and spend half of each short school holiday period and two weeks of each summer school holiday period with the father. Under the terms of the Consent Orders as originally drafted, the children spent each alternate weekend with the father from after school on Friday to Monday morning, Wednesday from after school to 7.00 pm in Week 1 and from after school on Wednesday to the commencement of school on Thursday in the other week.
13. The term-based arrangements were varied in August 2021 to reduce the alternate weekend by one overnight, such that the children return to the mother on Sunday evening.

Events since the 2018 Consent Orders

14. The parties commenced cohabitation in 2008, were married in 2009 and separated on 4 December 2016. At the time of separation, the parties lived at Suburb Q. X was in kindergarten at Suburb Q Public School. The mother and children remained in the Suburb Q property until mid-2018, when that property was sold.
15. On 22 March 2018, the parties executed a Binding Child Support Agreement pursuant to which the parties are to each pay fifty percent of the secondary school expenses for the children.
16. It is common ground that:

    (a) In mid-2018, the mother moved from Suburb Q to Suburb R, and X moved to S School;

    (b) In January 2019, X was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) by a paediatrician; and

    (c) In mid-2019, the mother moved from Suburb R to Suburb L, and X changed to T School from Semester 2 of 2019.

17. On or around 10 June 2020, the parties submitted an enrolment application at D School for the three children.
18. By letter dated 3 February 2021, X was offered a place at D School. The parties signed the “Confirmation of Enrolment Contract” for D School. The mother applied her signature on 14 February 2021 and the father on 17 February 2021. A non-refundable fee of $2,700 was paid, comprising of a $500 Acceptance Fee and a $2,200 Confirmation of Enrolment Fee.
19. In her oral evidence the mother agreed that, on 10 February 2021, she wrote to the Registrar of D School asking whether X’s Enrolment Contract had been dispatched as she had not yet received it. The mother conceded that she was following up the enrolment because it was in X’s best interests to have a place confirmed for her at D School for 2023, although she added that this was only to keep X’s “options open”.
20. There is no dispute that in Term 1 of 2021:

    (a) The parties attended an information evening at D School;

    (b) X attended five debating workshops at D School; and

    (c) X attended D School’s Open Day.

21. On 8 June 2021, the mother emailed the father to request that he prepare a comparative analyses for: all three children to attend D School; for X to attend D School and for Y and Z to attend U School; for all children to attend V School; and for all three children to attend C School.
22. In August 2021, the mother advised the father that she and her new partner would be moving to Suburb K. The children were moved to W School (“W School”) at Suburb K from Semester 2 of 2022. The father says he was unhappy about the children leaving T School but ultimately agreed to W School on the basis of the mother’s assurance that X would attend D School for secondary school. The mother says that the children’s attendance at D School was still only an option.
23. An exchange of emails took place between the parties between 23 and 31 August 2021 on this issue. On 23 August 2021, the mother wrote:

Dear [Mr Carrick]
The Principal has asked if we could please confirm enrollment [sic] at [W School] for [X], [Y] and [Z].
I know your preference was to keep [X] at [T School]. However, I would like you to consider the following ...

24. The father replied:

[Ms Carrick]
As far as I am concerned we agreed that [Y] and [Z] will go to [W School] in ter 1 2022 [sic], while [X] will stay at [T School] before going to [D School] in year 7.
This is the compromise I agreed to previously.
I understand your concerns about [D School] fees for 3 girls. I propose we honour the commitment to send [X] and I am willing to discuss a suitable second (cheaper) alternative for [Y] and [Z].

25. On 24 August 2021, the father wrote:

[Ms Carrick]
I thought I’ve made my position pretty clear, is there something you’re unclear about?
I would’ve liked the girls to stay at [T School] and go to [D School] in year 7, however I’ve compromised because of the changes you’ve decided to make in your own living arrangements. To be clear, these compromises adversely impact me.
I suggest mediation would be a waste of time and money.

26. On 30 August 2021, the mother wrote:

Hi [Mr Carrick]
In order to get you over the line to agree to enrolling the girls at [W School] commencing Term 4 this year please see the below propositions:

• Sunday nights – change to a mutually agreed night eg every second Wednesday night;
• Senior schools – agree that [D School] is preferable given proximity to work for us both but would equally like you to consider a cheaper alternative as a default option. As discussed, I am open to any schools you would like to consider which may be more affordable. The Principal at [W School] said girls tend to go to [G School] ([Suburb H]), [C School] ([Suburb F]), [D School] and [AB School];
• As discussed, I will look at [C School] and [C School] ([Suburb E]).

Could you please let me know if you will now let them enrol for term 4? The principal keeps asking me what is happening.

27. On 31 August 2021, the father responded:

Thanks [Ms Carrick]
I will agree to the girls going to [W School] from term 4 based on you allowing me to switch that Sunday night that has become very difficult for me following your move.
I appreciate you agreeing to [D School] as the preferred option. Of the schools listed below, [D School] is the only one I am agreeable to. You are obviously welcome to look at other schools at your volition.

28. On 31 August 2021, the mother replied:

Thank you, will you please let [W School] know?

29. In her oral evidence, the mother conceded that her email of 30 August 2021 gave the impression that D School is the preferable school for X for Year 7 and that, by this time, X had a place at D School, she had signed the Confirmation of Enrolment, and the non-refundable fees had been paid.
30. The mother’s email is confusing. The connotation of the word “preferred” is that D School sat at the top of a vertical hierarchy. Yet, to “equally consider” places D School and the “cheaper alternative” on a horizontal plane without primacy to either. Yet further, the description of the “cheaper alternative” as the “default option” re-establishes a vertical hierarchy but, this time, the “cheaper alternative” operates until overridden by something else. As to compound the confusion created by this email, D School, as the “preferred option”, seems to have been the overriding alterative as to immediately render the need for a “default option” redundant; and the “cheaper alternative” was not identified.
31. What is clear, however, is that the mother wanted to get the father “over the line” with respect to W School.
32. The father’s response on 31 August 2021 also lacks clarity. He too referred to D School as the “preferred option” but took no issue with the mother looking at other schools “at your volition”.
33. The father says that he agreed to X attending W School from Term 4 of 2021 on the basis that she would continue to D School in 2023. However, the father’s email reads:

I will agree to the girls going to [W School] from term 4 based on you allowing me to switch that Sunday night that has become very difficult for me following your move.
(Emphasis added)

34. The father’s reference to D School being the “preferred option” is disjunctive to the basis for his agreement to enrol the girls at W School in Term 4, being “to switch that Sunday night”.
35. Further, the father was aware that the mother would continue to make enquiries about schools other than D School. The mother’s reply of “thank you” does not alter this analysis. From the context, she was thanking the father for agreeing to enrol the children at W School in Term 4, agreeing to D School as the “preferred” option, and his tolerance for her to look into other schools.
36. In light of the foregoing, it is my view that, although D School was favourably considered by the parties, there remained a level of fluidity as to what school X should attend.
37. Senior Counsel for the father invites the Court to positively find that the parties reached an agreement about X attending D School from Term 1 of 2023 based on the passage of emails in August 2021. I decline to make such a finding.
38. On 15 October and 19 October 2021 respectively, the mother submitted an application for X at C School and G School. The mother notified the father of these applications on 19 October 2021, after the fact. The mother asked the father to sign the enrolment form to G School, which he did not do.
39. The father deposes that the first time the mother mentioned G School or C School was after she had moved to Suburb K and she asked him to sign an enrolment form. The father restated his position that X was to attend D School.
40. In his oral evidence, the father conceded that the mother had referred to C School as early as 8 June 2021 in the email that is marked “Exhibit M4”.
41. In late 2021, the mother took X to an interview at C School.
42. In November 2021, the mother moved to Suburb K. The alternate weekend arrangements for X, Y and Z were altered such that the father returns the children to the mother on Sunday evening rather than through school on Monday. The mother deposes that the reduction in time was requested by the father.
43. The email exchange on 30 and 31 August 2021, and the father’s oral evidence, places this “request” into context. The father was annoyed that the mother had moved the children’s primary residence to Suburb K, and changed their schools again, with the effect that it was no longer reasonably practicable for them to travel from his home to Suburb K on Monday morning and for him to get to work in the CBD. His request to change the Sunday night to another agreed night was intended to manage the issue resulting from the mother’s move to Suburb K.
44. On 5 January 2022, X received funding under the National Disability Insurance Scheme (“NDIS”) for 24 months. According to the NDIS Plan, X’s short term goals are:
    • I will be supported to build my skills in understanding my emotions, my responses to these emotions, being able to articulate what has caused the particular emotional response, and build skills to regulate these responses with greater ease and certainty.
    • I will be supported to build my life skills at an age appropriate level, in order to increase my independence and reduce my need to rely on other peoples help and direction on a constant basis.
45. X’s medium and long term goals are:
    • I will be supported to build my social skills such as social greetings and conversations, appropriate spatial awareness, and appropriate touching of other people, in order connect and cultivate long lasting friendships that I can grow with.
    • I will be supported build my communication skills, eye contact skills, speed and clarity of my words and sentences, syntax and diction skills, in order to be better understood and reduce my frustrations when I am trying to communicate with those around me.
    • I will be supported to build my capacity with my fine and gross motor skills in order to be able to access my everyday life and activities with greater ease, less fatigue and greater enjoyment.
    • I will be supported to build my skills such as bus travel, reading time tables, telling the time and understanding time management, and social skills, in order to build my capacity ready for my transition into high school next year.
    • I will be supported to build my understanding of age appropriate body awareness and privacy, resilience in situations beyond my control, regulating sensory responses to stimuli around me like loud noises and crowds, and learning to respond to people around me with gentleness and awareness of my own aggression levels, in order to maintain relationships with my peers and family at an appropriate level.

• (Emphasis added).

46. In relation to all of X’s goals, the NDIS Plan identifies that she will be supported as follows:

I will engage with my allied health providers to build my capacity and skills in my areas of concern. I will be provided with opportunities to practice these skills in the home, learning and community environments. My Local Area Coordinator may provide support, if required to identify and connect with services or providers who can assist me to achieve my goal ...

47. Under the NDIS Plan, X receives $5,735 for “Core Supports” and $26,607 for “Capacity Building Supports”. “Capacity Building” includes:
    • ...skills such as bus travel, reading time tables, telling the time and understanding time management, and social skills, in order to build my capacity ready for my transition into high school next year.
    • ... resilience in situations beyond my control, regulating sensory responses to stimuli around me like loud noises and crowds ...
48. Among other things, X’s NDIS funding is intended to assist her with the very skills that she will need to manage getting to and from secondary school by public transport.
49. There is no dispute that, in March 2022, X:

    (a) Attended an Open Day at D School;

    (b) Attended an Open Evening at C School;

    (c) Was offered a place at C School for Term 1 of 2023; and

    (d) Attended an Open Evening at G School with the mother.

50. X’s Semester 1 of 2022 school report records that X’s achievement is “sound”. X’s standardised National Assessment Program – Literacy and Numeracy (“NAPLAN”) results for 2021 rated her above the national average for reading, writing, language conventions and numeracy. It is common ground that X is an intelligent child.
51. On 1 August 2022, G School wrote to the father to inform him that:

... unfortunately at this stage, we are oversubscribed for enrolments in [Year 7 for 2023], and it is unlikely that we will be in a position to make further offers of enrolment. [...] We will keep your application on file and if we are able to make more offers in the future, we will be in touch.

52. There has been no further correspondence from G School since 1 August 2022. The mother did not obtain an update from the school for the purpose of the hearing on 5 December 2022, nor did her counsel wish to be heard against the father’s opposition to my enquiry as to whether such an update might be adduced. The evidence about the status of a position for X at G School is that, and I so find, there is no place for her, the cohort is oversubscribed, and it is unlikely that a place will become available.
53. On 25 August 2022, the mother took X to the “Taste of Year 7 Day” at C School.
54. On 21 October 2022, the father and X attended “Orientation Day” at D School. X undertook an optional swimming trial that day. In her oral evidence, the mother accepted that X was comfortable to be left at D School for the “Orientation Day” as she went to work and the father was diverted to a different part of the school. Prior to the “Orientation Day”, X received a letter from her “buddy” at D School welcoming her to the school, who wrote:

Hey [X]
My name is [[AC]] and I will be your [D School] Orientation buddy! I am in the [AD] Homeroom at [D School] and [AE] colour house. You will be in [AE] too! There are eight different home rooms, [AD], [AF], [AG], [AH], AJ, [AK], [AL] and [AM]. We start the day at 8.20 in the homeroom where we go through notices and talk with our friends! The teachers are so welcoming and kind during the process of getting used to your class and helping us to have fun. When it comes to sporting events and more, we get placed into our house colours. There are six different houses, [AN], [AO], ..., [AP], [AQ] and my personal Favourite, [AE]...

55. On 17 October 2022, the mother took X on the bus to D School. The mother deposes that the trip was difficult for X.
56. On 31 October 2022, the father emailed W School to inform the school that he would no longer be contributing to Y and Z’s school fees and that all correspondence should be directed to the mother. On 5 November 2022, he told W School that he was not obliged to pay for primary school costs and that:

[The mother] will determine whether she wishes to keep the girls enrolled and cover the school fees going forward.

57. When asked what the effect of his decision about school fees for Y and Z may have had on them, the father said that there would be no effect, but rather it would affect the mother. The father later conceded that, if the mother determined to not keep the girls at W School as his email on 5 November 2022 contemplated, their primary schooling would be disrupted, contrary to his view that they should have stable schooling. In my view, the father’s decision was made without regard to the destabilising effect it may have had on Y and Z.
58. On 6 November 2022, the father texted the mother:

See you in court. Whatever the judge says, are you planning to get orders for [Y] and [Z] to go to some shit school. I’m willing to do court for each child individually to get each of them the best education possible.

59. While these text messages were disrespectful and careless, their inclusion in the evidence does not assist me in deciding the issue of the X’s secondary schooling.

X’S NEEDS

Parties’ impression of X’s needs

60. The mother deposes at paragraph 17 of her affidavit filed 19 September 2022:

[X] has been diagnosed with Autism Spectrum Disorder Level 2 and Attention Deficit Hyperactivity Disorder. To my observation those conditions present [X] with significant social, emotional and practical challenges on a daily basis. In particular [X]:

a) Has sensory processing difficulties including severe pragmatic language difficulties;

b) Suffers from high levels of anxiety;

100. Requires significant assistance with daily tasks such as getting dressed, brushing her teeth, packing her school bag and the like with these tasks taking much longer than one would normally expect of an 11 year old. It generally takes me around 45 minutes to get [X] ready for school each morning as I am regularly required to remind her to stay on task and tell her what needs to be done next;

d) Needs a simple, stable and consistent routine;
e) Requires weekly support from a speech therapist and an occupational therapist.

61. The mother said in her oral evidence that X wakes up at about 5.30 am but is slow to get ready for the day.
62. X has recently started to take Ritalin for her ADHD. The mother said that X is responsible enough to carry her medication with her when she visits the father’s home and takes it when she considers she requires it.
63. The mother distinguished between X being capable of managing her own prescribed medication and her concern that X may not be able to catch a bus on the basis that X experiences sensory overload and struggles with lists of instructions. The mother said a bus trip involves a number of steps which may be challenging for X who is a literal person who may feel overwhelmed in a crowd. By contrast, taking medication does not require this type of planning.
64. I am not convinced by this distinction. The catching of a bus is a learned task. X also receives Capacity Building funding under the NDIS to assist her in this specific regard. By contrast, the decision to take a prescribed medication involves the exercise of mature, adult judgement.
65. In his oral evidence, the father agreed that X needs additional help but does not necessarily agree with the mother as to the extent of this. The father accepted that X has a low tolerance for change. He said this was why he was so upset about the changes to her primary schooling. The father agreed that X could find it difficult in crowds. The father did not consider that X had any particular issues with emotional regulation, or aggressive or inappropriate behaviour. He described her as a lovely and polite girl, but does not naturally gravitate to communicating and is a “reserved child”.
66. The father was less willing to accept the diagnosis of Autism Spectrum Disorder (“Autism”) given it was based on information from the mother and X’s teacher, of which he was not involved in the process and so his perspectives on X were not included. He nevertheless said the he was not medically qualified to comment on the diagnosis. That said, the father accepted that:

    (a) X gets anxious and likes routine;

    (b) A shorter commute to school for X would be ideal;

    (c) X may find it difficult to use public transport to travel to and from school difficult at first and would need assistance. However, he said that she is a very intelligent girl; and

    (d) X’s anxiety may be exacerbated if she has to navigate public transport to D School, but said this will be the case regardless of the arrangements given the distance between the two homes and, as such there will be a need for a plan.

Occupational therapy assessment

67. In May 2021, the mother arranged for X to be assessed by an Occupational Therapist. The reason for the referral was “Difficulties with performance of school tasks, social skills, confidence, independence and planning of daily tasks”.
68. The assessment results were:

This assessment examined [X]'s underlying mechanical, sensory and cognitive abilities impacting on her participation in activities at home and at school. It has been reported that [X] has difficulty with handwriting, writing, social skills and personal care tasks.
In the area of social skills [X] is having difficulty with confidence, self-esteem, maintaining friendships and joining in conversation and activities with peers. [X] is aware of her difficulties socialising with peers and is motivated to develop these skills.
In relation to mechanical abilities, [X] was observed to have difficulty adopting and maintaining a functional pencil grip. This is impacting on her handwriting legibility and fluency. [X] has difficulties with dynamic movement in her fingertips, which impacts on all tasks that require fine motor precision e.g. handwriting and tying shoelaces.
In relation to sensory processing, [X]'s mother reported that she is having difficulty processing a number of senses including vision, touch, body awareness and body and motion. Sensitivity to these inputs is having a significant impact on her emotional and behavioural responses and is reducing her participation and task performance.
[X] also demonstrated difficulties with visual motor integration, specifically visual perception. She appeared to rush through visual perception tasks, impacting on the accuracy of her responses.
Difficulties with cognitive strategy use for attention, recall, planning and motor execution are also impacting on [X]'s participation. As a result, she is demonstrating difficulty independently completing tasks which involve executive function. Multi-step tasks which involve focusing on important details, ignoring distractions, knowing how long an activity should take and completing tasks within set timeframes are a challenge for [X].
Such activities include independent writing, completing her morning routine and organising her belongings.
[X] demonstrated and was also reported to have difficulties with motor planning. This means that she has difficulty generating, planning, organising and sequencing new movements and tasks. Motor planning is the ability to plan 'what' to do and 'how' to do it. It is the ability to plan the steps of a movement and is essential for skills such as writing and sequencing actions in personal care.
Finally, [X] demonstrated difficulties with higher order thinking and problem solving, specifically regarding sequencing and answering negative questions. This is impacting on her ability to develop her social skills and independently complete multi-step tasks. It helps to explain why she has difficulty planning and using strategies to achieve a goal.

69. Senior Counsel for the father contends that limited weight should be given to the Occupational Therapist’s report because it was obtained for assistance with difficulties of school tasks and social skills, not which school X should attend. I do not accept this submission. The wider analysis of what school will be in X’s best interests requires me to have regard to the whole child. This includes any difficulties she may have when managing public transport to get to and from school.
70. That said, the father had no part in the Occupational Therapy assessment. Information appears to have been gathered from the clinician’s direct observation and administering of tests to X, and from reports and the completion of diagnostic or evaluative questionnaires by the mother and X’s teacher. Had the father be involved in the assessment, he may have provided different or additional information which may have been relevant to the assessment.

Psychologist’s assessment of May and June 2021

71. On 21 May 2021 and 18 June 2021, X was assessed by Ms AR, a clinical psychologist (“the psychologist”) who opined that X meets the diagnostic criteria for Autism.
72. On 20 June 2021, the mother emailed the father as follows:

Hi [Mr Carrick],
I think I mentioned to you that the OT recommended that [X] get additional assistance and re-assessment from a developmental pediatrician.
[Ms AZ] (OT} provided recommendations which has been helpful - both psychologist (for complementary therapy} and a developmental pediatrician to reassess the ADHD diagnosis now that some time has lapsed. Apparently, from when she was assessed 3 years ago to now there is a big jump developmentally. Hence the reassessment.
I organised an initial psychologist appointment which has come round quicker than expected - for tomorrow - sorry I did mean to give you the heads up earlier and so I can pay this myself if you like. Her name is [Ms AS] and she's based in [Suburb AT] so I can try and facilitate those appointments and we may not need too many. I think she works on the social aspects and given [X] is having difficulty at the moment perhaps this will help her navigate that.
In terms of development pediatrician reassessment perhaps we can discuss? Kind regards
[Ms Carrick]
(Emphasis added, otherwise per the original)

73. In her oral evidence, the mother said she believed she told the father about the psychologist’s assessment in advance of the appointment. When taken to her email of 20 June 2021, and comparing that date to the dates on which the psychologist’s assessment occurred, as recorded on the front page of the report, the mother said she could not recall if she told the father about the appointment in advance.
74. I do not accept this evidence. The email of 20 June 2021 was sent after the second of the two appointments and indicates that the mother had organised an “initial” appointment “for tomorrow” adding “sorry, I did mean to give you the heads up earlier so I can pay for this myself if you like”. Plainly, the initial appointment occurred on 21 May 2021, a month prior to the email. The second appointment occurred two days before the email.
75. The notion of giving the father a “heads up” is misplaced where the decision for X to be assessed in this way is as aspect of equal shared parental responsibility. The information provided to the father as to who would undertake the assessment was “Ms AS” at “Suburb AT”. The mother suggested the father could have asked for more information from her if he wished to know more. The information the mother provided to the father about the identity of the assessor was plainly inadequate. The mother conceded that she had not given the father a reasonable opportunity to participate in the assessment.

Psychologist’s advice of August 2022

76. On 5 August 2022, the psychologist emailed the parties to offer some general information about the criteria X’s school should meet based on her profile of ADHD, anxiety and Autism. The email stated that she was not familiar with “the schools” and it is not apparent from the email what schools were identified to her.
77. The criteria that were identified were structure and routine (noting that “most schools provide that”); “as little change as possible”; smaller class sizes to reduce sensory input; familiarity with the school and the area; that it is usually not ideal to have a long travel time, “being local has its advantages”; and that the learning support team/diversity team have a big impact.

CONSIDERATION

78. As this matter concerns parenting arrangements for a child, the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”) apply. In deciding whether to make a parenting order, the Court must regard the best interests of the child as the paramount consideration.
79. Counsel for the parties variously referred me to the authorities of Aldridge & Keaton (2009) FLC 93 – 421; Re G (Children’s Schooling) (2000) FLC 93 – 025 and Raymond & Harold [2009] FamCA 155 and I thank them for that assistance.

Primary considerations

80. There is no issue that X benefits from a meaningful relationship with each of her parents. Neither party asserts that there is a risk of abuse, neglect or family violence within the family. There are no family violence orders in place.

Additional considerations

81. There is no probative evidence of X’s views.
82. I decline to make a positive finding that there is a prior agreement about X’s secondary schooling.
83. I have no reason to consider that X’s relationship with each of her parents, siblings and paternal grandmother is good.
84. Given X is entering a new stage of school and her current school ceases at Year 6, the effect of a change in her circumstances of schooling is inevitable. She will need to adjust to a new environment, new school programs, new after-school activities and new peer groups. She is likely to feel fatigued and anxious as she adjusts to this, irrespective of the school she attends.
85. As to the corollary of a change of circumstances, being familiarity:

    (a) It is common ground that X will know some girls in Year 7 at all three proposed schools. X’s paternal cousin, AU, completed Year 12 at D School in 2022. In 2022, X attended D School to see AU’s visual art exhibition. X will have peer connections at all three schools. At D School, she will have a familial alumni connection, which is not replicated at the other two schools; and

    (b) X attended an “Orientation Day” including swimming trials, received a letter from her buddy, and based on that letter’s content, met the buddy at the “Orientation Day” who then accompanied X to the Art Show, participated in five debating workshops and also went to the Open Day. X’s exposure to D School has occurred over at least two years. By contrast, she has attended a “Taste of Year 7 Day” at C School, Open Evening and an interview. X has had some limited contact with G School.

86. On balance, the issue of familiarity favours D School.
87. Each parent has taken the opportunity to participate in decision making about X’s choice of secondary school.
88. Each parent has fulfilled their obligation to maintain the children. The father was not legally obliged to pay the fees for W School. His withdrawal of funding reflects poorly on his attitude to the mother.

Which school can meet X’s developmental and academic needs?

89. The mother submits that the Court cannot make a qualitative assessment of the different schools as they are all independent Catholic girls’ schools. I do not accept that submission. In order for the Court to evaluate the totality of the relevant matters relating to X’s best interests as a whole child, to the extent I am able, I need to consider what each school may offer to X.
90. In terms of whether the schools can accommodate X’s unique needs, the mother accepted that, as at 30 August 2021:

    (a) She had already received the occupational therapist’s and psychologist’s assessments. The mother’s reservations about D School not being suited to X’s needs arising from Autism does not accord with her nomination of D School as the “preferred option” after receiving that diagnosis; and

    (b) The “default option” to which “equal” consideration would be given was based solely on being a “cheaper alternative”, not an alternative that could better accommodate X’s needs.

91. All three schools can meet X’s need for pastoral care, peer support, learning support and well-being support. All have relatively small classes. Each of the schools will offer structure and routine. There is no evidence that permits me to rate one above the other with respect to these measures.
92. There is no suggestion that each of the schools is anything other than a mainstream secondary school that teaches the NSW curriculum. There is no reason to believe that X’s educational needs would not be met at any of them.
93. I attach no weight to the “Best High Schools in NSW 2021” webpage adduced in the father’s case. There is no material that allows me to understand the provenance of the data used to compile the document, nor the methodology that was applied to it.
94. As to academic performance and opportunities, the mother accepted that D School had better overall Higher School Certificate results than C School and G School. Of the three proposed schools, only D School offers the opportunity to undertake the International Baccalaureate, which may be of interest to X, who is a high achieving student. These matters favour D School.
95. The father says that sports facilities are on-site at D School whereas they are off-site for C School. I accept that it is convenient for X to have all of the school’s facilities on one site having regard to X’s difficulties. This favours D School.

Reasonably practicability

96. There is no place for X at G School. The cohort is oversubscribed, and it is unlikely that a place will become available.
97. Counsel for the mother did not wish to be heard in relation to my question about adducing up to date evidence in that regard and did not ask that delivery of judgment be delayed. I accept that it is important for X to know where she will go to school in Term 1 of 2023 before the end of Year 6 so that she can accommodate that information into the way she interacts with her Year 6 peers. I will dispense with any further consideration of G School.
98. X has a confirmed place at both D School and C School. The comparison thus reduces to a comparison of those schools.

Travel times and transport modes

99. Under the current parenting arrangements, X will travel to school from her mother’s home nine mornings per fortnight and from her father’s home one morning per fortnight. She will travel to her mother’s home after school seven afternoons per fortnight and to her father’s home three afternoons per fortnight.
100. The paternal grandmother, whose evidence was unchallenged, lives at Suburb O and works part time at Suburb AV. She offers to assist with transport but her offer to drive to Suburb K is limited to “on occasion”. It is not the paternal grandmother’s responsibility to transport the children. Nor is it her evidence that she would drive the additional distance to Suburb H.
101. Whether X attends D School or C School, she will need to learn to catch a public bus from and to Suburb K to either Suburb F or Location AW most days for school. To do this, she will need to manage public transport, read timetables and be able to cope with unexpected events. She has NDIS funding to assist her with this.

Travel to and from C School

102. The travel time from the mother’s home to C School is about 20 minutes by public bus. The mother’s intention is that X would travel to and from school from Suburb K by bus.
103. The travel time from the father’s home to C School is about 59 minutes by public bus. C School is in the opposite direction to the father’s workplace, although he says he tries to work from home on Wednesdays so may be able to collect X from school on those days. If X is to be driven to school on alternate Thursday mornings, the father is likely to require the paternal grandmother or a nanny for assistance.
104. The bus to and from C School from the mother’s home goes through Suburb AX where X attends speech and occupational therapy.

Travel to and from D School

105. The travel time from the mother’s home to D School by public transport is about one hour and six minutes. The bus route to D School involves a change of bus at Location AW and Suburb AY. The travel time from the mother’s home to Location AW is about 27 minutes or 36 minutes to Suburb AY. The change of bus may be difficult for X.
106. The mother can work in the CBD two days per week and commutes via Suburb AV and the N Freeway. She passes the Suburb E turn-off and could deliver X to school on those mornings and collect her on the way home. In her oral evidence, the mother agreed D School has after school activities which may interest X. This would mean X could be engaged in an activity until the mother arrives to collect her after work. In the morning, Y and Z might have to go to before school care on some days or her partner could assist with transporting them.
107. If X catches the bus to D School from Suburb K:

     (a) The paternal grandmother, who lives at Suburb O, has specifically offered to collect X from Location AW or Suburb AY and drive her to D School. This would remove the need for X to manage two buses. The drive by private car from Location AW to D School is about 10 minutes, and less from Suburb AY; and

     (b) The father can collect X from Location AW and transport her to D School on his way to work and in the afternoons on the return journey. He positively associates this with an opportunity to have one-on-one time with X.

108. From the father’s home, the travel time from Suburb O to D School is about 25 minutes by bus or 15 minutes by private car. The father is able to drive X to school on his way to work.
109. The bus from Location AW travelling to Suburb K also passes through Suburb AX, where X attends speech and occupational therapy.
110. On balance, travel time by bus from the mother’s house to C School of about 20 minutes compared to the travel time to Location AW of about 27 minutes is substantially the same. There is an additional travel time of 10 minutes from Location AW to D School which can be traversed by private car thus removing any difficulty associated with a second bus. On the days the mother works in the CBD, she can deliver X to, and collect her from, school by private car.
111. In terms of accessing the school during the day in the event of an emergency, or for any other reason:

     (a) D School is more accessible than C School for the mother on the one to two days per week that she works in the CBD;

     (b) C School is more accessible than D School for the mother on the two to three days per week that she works in at Suburb H;

     (c) D School and C School are equally accessible to the mother on the day she does not work given she appears to have no fixed commitments on that day;

     (d) D School is more accessible than C School for the father on the four to five days per week that he works in the CBD; and

     (e) D School and C School are equally accessible to the father on the day he may work from home.

112. D School is equally accessible as C School to the mother during the school week should there be an emergency or other event involving X. She can work in the CBD two days per week. D School is clearly more accessible to the father than C School. It is advantageous to X to have parental “back up” when she is at school regardless of which parent cares of her on the particular day. This favours D School.
113. Pausing there, on balance, the factors considered thus far favour D School.

School fees

114. The remaining question is whether X’s fees at D School can be secured. This is a critical issue because, absent secure funding, her place at whatever school she attends may be jeopardised and result in a disruption to her secondary education should she need to change schools again. The need for X to have stable schooling is obvious.
115. The annual tuition fees of:

     (a) C School are $13,780 for Years 7 to 12; and

     (b) D School are about $23,260 for Years 7 and 8, increasing to $25,860 for Years 11 and 12.

116. The parties Binding Child Support Agreement obliges each to pay half of the tuition and related school expenses for the children. Clause 4.6 and 4.7 relevantly provide:

4.6 That subject to clause 4.7 herein the father shall pay 50% of:

4.6.1 all private hospital, medical, optical, orthodontic and dental and other health related expenses in respect of the children not able to be recovered from Medicare or the private health insurance policy referred to in Clause 4.8.1 herein except that in relation to such expenses other than day to day medical and dental expenses and urgent and emergency treatment the mother and father will agree to any such treatment before it is undertaken;
4.6.2 that subject to clause 4.9 herein, tuition fees, excursions, school related extracurricular activities, uniforms, books and school related technology costs in respect to the children's education from the time each child commences secondary school until each child completes her secondary education except that such expenses will only be payable by him at private schools if the husband and wife agree in writing that the children will attend private schools.

4.7 That in the event the father is unemployed for a period of 3 consecutive months that during the period that he is unemployed the payments pursuant to Clauses 4.5 and 4.6 herein be suspended.

117. The mother deposes that it will be prohibitive for her to pay half of the D School fees but she can afford fifty per cent of the C School fees.
118. The father has offered to pay the fees of D School over and above the equivalent of half the tuition fees for C School. Senior Counsel for the father put on the record that this offer is only open until the end of Term 1 of 2023 and retrospective for Term 1 of 2023.
119. The father is indicating through his offer that he has the capacity to meet the majority of the fees for D School for the whole of X’s secondary schooling. So much is clear from the words of proposed clause 4.9 which reads:

That in the event [X] attends [D School] (“D School”) for her secondary education, that the mother will pay $7,470 towards her tuition fees for the 2023 school year and in relation to tuition fees for each year thereafter the equivalent of one half of the tuition fees referable to [C School] and the father will pay the balance of the fees at [D School].
(Emphasis added)

120. The mother says she would feel uncomfortable if the father paid more than fifty per cent of the fees as he may use it as “leverage” against her. She points to the father’s withdrawal of fees for Y and Z at W School in November 2022. For that matter, the father at one point said he was being controlled by the mother. Both parties are unconvincing in this regard. It is apparent that each party runs interference on the other having regard to such matters as the manner in which the mother arranged X’s psychological assessment and the father’s decision to withdraw from contributing to Y’s and Z’s fees for W School.
121. The only jurisdiction I am invited to exercise is to make a parenting order as to X’s school, under Part VII of the Family Law Act 1975 (Cth). I can make ancillary or machinery provisions to give effect to the primary order. However, in my view, that would not extend to making a positive order that operates to amend an underlying contract.
122. However, I can, and will, make an order that X’s enrolment at D School is conditional on the father filing an Undertaking to the Court, modelled on the proposed clauses 4.6.2 and 4.9 of the Child Support Agreement by no later than 4.00 pm on 9 December 2022. This timing is to ensure that X knows which school she will attend in 2023 before the final week of Term 4 of Year 6 begins.
123. If the father fails to file the Undertaking in the prescribed time, then X will attend C School. While there are various features of C School that are less optimal than D School, security and stability of X’s enrolment is a weighty factor.
124. Whether the parties enter into an amended Child Support Agreement is a matter for them although to do so would consolidate the liability for enforcement purposes.

CONCLUSION

125. For these Reasons, I find it is in X’s best interests to attend D School from Term 1 of 2023 for her secondary education subject the filing of the Undertaking as to fees, but otherwise to attend C School.

Associate:

Dated: 8 December 2022