Picano & Walkner [2021] FCCA 1682 (25 June 2021)

Last Updated: 9 August 2021

FEDERAL CIRCUIT COURT OF AUSTRALIA

Picano & Walkner [2021] FCCA 1682

File number(s):	CAC 865 of 2021
Judgment of:	JUDGE W J NEVILLE
Date of judgment:	25 June 2021
Catchwords:	FAMILY LAW ‑ urgent parenting Application – high school enrolment for 2022‑ where no Application was brought by the Applicant Father notwithstanding the fact that it was a live issue between the parties since at least August 2020 – children had been registered with Mother’s preferred school since July 2014 – issues of payment of school fees – Father did not bring any Application regarding school thereby forcing Mother to do so.
Legislation:	Family Law Act 1975 (Cth), ss 4, 64B(2) Federal Circuit Court of Australia Act 1999 (Cth), s 15
Cases cited:	U v U [2002] HCA 36; (2002) 211 CLR 238
Number of paragraphs:	38
Date of hearing:	24 June 2021
Place:	Canberra
Counsel for the Applicant:	Mr J Haddock
Solicitor for the Applicant:	Infinity Legal
Solicitor for the Respondent:	Neilan Stramandinoli Family Law

ORDERS

		CAC 865 of 2021
BETWEEN:	MR PICANO Applicant
AND:	MS WALKNER Respondent

ORDER MADE BY:	JUDGE W J NEVILLE
DATE OF ORDER:	25 JUNE 2021

THE COURT ORDERS THAT:

1. Absent any other agreement in writing between the parties, the child, X (born: in 2009), attend B School from the commencement of Term 1, 2022 and in this regard, the parties forthwith do all things and acts necessary to enrol X at B School. Otherwise, the children shall attend C School in Suburb D for their primary school education. In this regard:

(a) Both parents shall do all things and sign all such documents as may be necessary to ensure the relevant school notes both parents as enrolling parents and emergency contact for the school and any extracurricular activities and sport.

2. The Mother’s costs in relation to the schooling Application be reserved.

THE COURT NOTES THAT:

1. Unless otherwise agreed in writing between the parties, the school fees shall be shared equally between the parties.
2. The parties are at liberty to provide a copy of the Orders to B School.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE W J NEVILLE:

Introduction

1. On 25^th June 2021, the Court delivered oral reasons in relation to the Orders pronounced on that day. Literally within a minute or two of the Court adjourning following the delivery of those reasons, a request for them in writing was received from the Father’s lawyer – the lawyers for both parties and the parties themselves were present on the phone for the delivery of the reasons. What follows is those reasons revised from the transcript.^[1]
2. This is another urgent, interim parenting Application to deal with a single issue - schooling. It is being heard while the Court is officially in recess because it is “time sensitive.” It has become “time sensitive” because one or either, or both, parents are either unable or are unwilling to resolve the matters that are in contest between them. This is particularly regrettable given that the most immediate issue concerns one of their children, X.
3. No less unfortunately, it reflects poorly on the parents that they have not resolved the specific issue now to be determined, among other things, because (a) it has kept the children generally, and X in particular, embroiled in the contest, and (b) it has meant that, despite multiple requests by the Mother in particular to the Father over a significant period of time to save spending money on lawyers and settle matters, here everyone is, almost a year later, paying lawyers and, to a degree, haggling over school fees and whatever school X is to attend. It is X’s enrolment at school that is the immediate issue at hand.

Preliminary observations

4. Again to speak in general terms, the correspondence between the parties indicates not only regular fierce animosity (there are mutual allegations of family violence during the relationship) but an almost financial audit approach to all matters between them involving the children. With everything seen through the distorting prism of “money”, it is no wonder that they are so firmly opposed to almost everything. It might even be said that their contest has become a sort of de facto support for them. Put another way, I wonder if they have any idea how different and infinitely more relaxed their lives will be (not to mention the children) when they stop fighting and litigating.
5. As already indicated, the single issue immediately requiring determination relates to X’s enrolment at high school for next year. Strictly speaking, it is the Mother’s Application. The Father’s only formal reference to it is a less than clear and imprecise notation in his Orders sought (perhaps the opaqueness was deliberate) in the Application filed, 30^th April 2021. That succinct notation reads: “It is noted that the Father does not agree to the children attending B School from year 7 unless those fees are paid by the Mother.” Nothing turns on it but “B” is mis-spelt in this notation.
6. On its face, there is nothing in this notation, or in either of the Father’s 2 Affidavits, to suggest, as his Counsel sought to argue yesterday as artfully as was possible in the circumstances, and in the face of very significant evidence in the Father’s material to the contrary, that he would not contribute at all (emphasis added) to the children’s school fees should they attend that school. The artfulness of the advocacy was plainly necessary because, as was put to him during the interim hearing, there was significant material from the Father where cost was prominently, sometimes predominantly, at the forefront of his mind. It would not be difficult simply to tally how often the Father says in his email correspondence with the Mother since August 2020 that he cannot afford to send the boys to B School. In passing, clarity and nuance are not strongly on display here, doubtless because so much energy and focus is on the battle between the parties and the focus upon money.
7. In any event, in the Father’s material, “cost” was plainly the focus and reason for his opposition to the slightly more expensive B School over the slightly less expensive E School (which he seeks the boys to attend and for the parents to pay school fees there equally). Given the Father’s submissions in Court, there must be a similar jurisdictional (and perhaps procedural) issue about the fee Order sought by the Father. More colloquially, he cannot have his cake (in objecting to any Order regarding payment of school fees) and seek a similar Order himself.
8. In addition to the attempts to distract the Court from cost issues (sort of a “nothing to see here, move along”; the Obi-Wan mind-trick of “these are not the droids you are looking for”), there were some other passing attempts at what some might call “legal games.” It is tedious and formally unnecessary to refer to them other than to attempt to record a few matters.
9. Family law is pre-eminently about problem solving, including in making decisions about what material to put before the Court. As already remarked, although X’s secondary schooling has been “on the table for almost a year” (a fact apparently not disputed), there remains formally no Application from the Father to enable the Court to deal with it. Procedurally and otherwise, this was unhelpful, to say the least. Maybe, this was a deliberate ploy – but one does not, and cannot, know.
10. Next, at the hearing, the Father argued that because of the nature of the Mother’s Application regarding schooling and the concomitant issue of school fees (and noting that she sought no formal Order regarding fees), the Court did not have the authority to make any Order in relation to payment of school fees because such would require there to be a “departure order” under the Child Support legislation. Nothing like “problem solving” – and this certainly was nothing like problem solving. It was erecting road blocks regarding matters that were specifically within the knowledge of the parties and those advising them. It should have been properly put before the Court by way of Application – and no such thing was done.
11. Again by way of observation only: knowing that the primary issue related to X’s schooling, and in consequence the payment of school fees, making no Application about it, and then, during the urgently convened hearing, raising procedural and or jurisdictional problems about the Orders sought by the Mother regarding precisely the same issues, bordered on the unconscionable, as well as the completely impractical.
12. Moreover, certainly in interim proceedings, and otherwise, under the Court’s principal legislation and Rules, there is more than ample power, pro tem, to make Orders that are appropriate in all of the circumstances (see, for example, s.15 Federal Circuit Court of Australia Act 1999 (Cth)). As well, s.4 of the Family Law Act 1975 (Cth) (“the Act”) refers to “education” as a major, long-term issue. It would be passing strange to have this referred to directly in the Act, and all the jurisprudence that goes with it with respect to parental responsibility, and not be able to make related Orders to give practical effect to them. See also the wide powers under s.64B(2) of the Act.

Some procedural matters

13. In addition to what has been said already, to argue at the hearing that the main reason for the Father’s opposition was because of X’s wishes, was (to put it colloquially) to gild the lily significantly. The child’s views are a consideration, without a doubt. In my view, given the difficulties that attend all interim hearings and the inability to test pretty much any evidence, and given the comments in the Mother’s material about X’s views as being confused or ambiguous, the Court cannot and should not place too much weight on the untested views of a 12 year old.
14. In this regard, I note that there was nothing in the Father’s April Affidavit regarding any views of either child. Indeed, there was nothing at all about the school issue in that Affidavit, even though that issue had been lurking around, directly and indirectly, for month after month, keeping X on the B School wait-list, and making other inquiries, from time to time. Why this was not addressed then, as a live issue, was not explained. It is only in the last part (pars.35 – 41) of the Father’s 22^nd June Affidavit that X’s views as reported by the Father, are laid out.
15. As a matter of evidence, the Father’s contention at par.42 of this later Affidavit is problematic. There the Father deposed: “It is my understanding that X will be offered a place for E School in 2022 if B School is no longer on offer.” How the Father has come to this understanding, and the source of any relevant information in this regard, remains completely unexplained. Again to state the obvious: given how long this issue has been occupying the parents, it is extraordinary that all proper information was not, and is not, before the Court. The Father’s statement at par.42 obfuscated rather than illuminated the issue before the Court. Put another way, regrettably, the statement did not assist the Court at all.
16. In her material, the Mother deposed (at par.10) from a conversation with a representative of E School on 15^th June 2021, wherein it was confirmed that (a) there is no place or offer for X at E School at the moment; (b) there will not be a place at E School while-ever there is an open offer from B School; and (c) because of the surplus of Applications to E School, “the school has been over-saturated with enrolments”. Thus it would seem rather doubtful that an offer would emerge for X today, 25^th June.
17. In these rather problematic circumstances, on all fronts, in somewhat colloquial terms, the Father seems content to gamble somewhat on X’s secondary education. The way the matter has been addressed, or more recently formally not addressed by him, in a worst case scenario, would mean that X could miss out on places at both schools and everyone will have to start from scratch again with another school.
18. I will not (and cannot in the limited time available in the light of the time deadlines well known to the parties) canvass all of the arguments of each of the parties from their respective affidavits, or from their submissions.

The parties’ submissions

19. The parties’ written submissions, firstly of the Respondent Mother, then of the Applicant Father, were as follows.

SUBMISSIONS IN ACCORDANCE WITH ORDERS MADE ON 23 JUNE 2021
PREPARED BY THE RESPONDENT’S SOLICITOR DATED 24 JUNE 2021
1. This is an interim application as to whether the child X born in 2009, aged 11 (“X”) is to attend B School (“B School”) or E School (“E School”) for his high school education in 2022. The Respondent Mother seeks Orders that X attend B School from the commencement of Term 1 2022 and that the parties do all things necessary to enrol X into this school. If the Court pleases, the Mother seeks an Order or notation that the parties equally meet the fees of B School. The parties care for X and his brother Y (aged 9) on an equal time basis.
2. It is agreed that X has been on the wait list for B School since 2014 . It is also agreed that X has received an offer from B School. There is no offer from E School. The dispute between the parties is effectively between two private schools, with the Father’s opposition to B School seemingly related to fees only (the Father agrees to B School if the Mother pays the fees).
3. It is submitted that although the Father’s evidence is that in around 2020, he commenced opposing X’s enrolment at B School due to fees, he has effectively acquiesced to X remaining on the wait list. It is submitted that the parties’ prior long-standing agreement in relation to X’s school is a consideration for this Honourable Court. In addition, it is the Mother’s evidence that issues of distance, transport and convenience favour B School.
4. The Father does not challenge the mother’s analysis of the difference between the school fees ($34 per week each difference), noting the father’s agreement to pay private fees. The Father’s own evidence is that from the new financial year his income will increase by approximately$10,000 which could easily cover any difference or the Father’s own analysis of the difference.
5. Although X’s views are relevant, the evidence from both parties is that X makes positive and negative comments about each school. There is no independent evidence from a Family Consultant. It is submitted that religion is not relevant in this schooling matter.

OUTLINE OF SUBMISSIONS FOR THE APPLICANT FATHER

1. These submissions accord with his Honour Judge Neville’s Orders of 23 June 2021.

The Dispute

2. The matter is listed for determination concerning the secondary school at which the child X will attend. The Mother says both children should be enrolled in the B School and the Father says that both children should be enrolled at the E School. No application was made concerning this issue until that brought by the Mother on 16 June 2021. Her affidavit suggests the application was brought because the Father has “reneged” on enrolment at the B School, a position which does not accord with the email evidence. Nonetheless, the Court has urgently allocated time. No parent suggests that the schools proposed are not prima facie satisfactory schools, thus disposing of any Ryan & Janosi [2011] FMCAfam 774 issue.

The Authorities & Considerations

3. In Bilz & Breugelman [2013] FamCA 578 [81]-[83], Austin J summarised the principles governing the resolution of schooling disputes by reference to Re G (Children’s Schooling) [2000] FamCA 462; (2000) FLC 93-025 and Eden & Eden-Proust [2011] FamCAFC 138. One would also observe Whitton & Whitton & Anor (No 2) [2010] FamCA 1119 at [37], [60], Bardot & Benjamin [2013] FCCA 1024 at [40]- [42], and Dawson & Dawson [2012] FMCAfam 94 at [74] and [95].
4. The s 60CC(3) additional considerations that are relevant on the present application are, views, the likely effect of the children of attending one school rather than the other, and the effect that this choice may have on the children’s relationship with both parents is a matter that requires consideration.

Submission

5. The father submits:-
   1. The eldest child has expressed a strong view that is positive in terms of E School and adverse to B School. This has been informed by his attendance at ‘E School day’ which was facilitated by the mother. The majority of the child’s friends will be attending E School and not B School.
   2. E School has the benefit of teaching catholic values and a continuation of their present education.
   100. The mother’s contention as to convenience and sports difference between schools has difficulties.
   4. Cost is a practical deterrent to the mother’s proposal, given (1) the conclusion of her problematic and unspecific submission at [9]; (2) the father’s evidence as to costs differences and his ability to meet same is detailed; (3) the mother’s failure to complete Part N of her Financial Statement or clarify her position in relation to detailed orders; (4) because of cost, the mother’s proposal has potential to ostracise the children from their peers; (5) her argument fails to deal with the potential separation of the children’s schooling; (6) there is no explanation or suggestion that the mother will meet the costs of any shortfalls, and given the nature of her communications with the father her proposed school has a greater risk of creating and subjecting the children to parental conflict over costs.
   5. The suggestion that the father is somehow neglecting his children or is not child-focussed because he would preference holidays with them or household goods is, at best, lacking in insight, but provides some forecasting of the potential conflict that may follow the mother’s proposal.
   6. The mother’s assertion that B School was preferred by the parents, even for some time and that E School was only even an alternative, does not determine the matter, is problematic at law, nor does it properly flow from the evidence.

Consideration & disposition

20. The following factual matters are largely agreed: (a) both children, but X in particular, have been on the enrolment “wait list” for B School since July 2014; (b) B School is geographically significantly closer to the residence of both parents compared to E School; and (c) there is no contest that in either school, a good education will be achieved. As a result of the lack of dispute regarding the quality of education at both schools, the Court must look elsewhere for matters and considerations relevant to the determination of poor X’s schooling, caught as he is in the middle of his warring parents.
21. On the evidence, albeit untested but unlikely to be terribly problematic, matters of finance (as previously noted) and choice of life-style loom large from the Father’s perspective, notwithstanding the attempt by him to place much greater weight and emphasis upon X’s views in more recent times. I say that for the following reasons. I include here also, for ease of reference, other considerations which, in my view, point clearly to the result that is in X’s best interests, on an interim basis. As I noted to the parties in the course of the hearing, at a final hearing, the Court may well change the schooling arrangements after everyone has the benefit of a family report of one kind or another, evidence is tested, and more detailed submissions made.
22. This is also to say (which should be communicated to the boys carefully but frankly), the Court has made a decision because the parents are unable to agree; it may be changed in the future in the light of other evidence.
23. I note the following, as summarily as possible.
24. First, the notation in the Father’s Orders sought, to which I have already referred, on its face, places all responsibility for school fees for B School on the Mother. While this was disavowed in oral submissions, in my view, there is no evidence to support the disavowal. The notation in the light of the oral submissions, on its face, was quite misleading, which may explain why the Father’s Counsel sought to clarify matters, although there remained a significant lack of detail regarding what the Father would pay for or contribute to. Presumably it is a case of “watch this space.”
25. Secondly, in his Minute of Orders Sought (but still without any formal Application before the Court from the Father regarding Orders pertaining to education of the children and payment of fees), the Father sought an Order for the school fees at E School to be paid equally by the parents. On its face, subject to what is said later, it is completely illogical to seek to have one parent pay all school fees at one college but have them shared equally if the children go to a different college. As already noted, it is also illogical to challenge the Court making an Order for payment of school fees at one school, and at the same time, seek an Order for payment of school fees at another school. Illogicality rules on many fronts.
26. Thirdly, throughout the parent’s email communication at least since August 2020, the issue of fees and the Father’s ability (or otherwise) to pay fees for B School are consistently raised by him. On this evidence alone, fees are at the forefront of his mind. Other matters were, of course, percolating around, but financial matters remain at the top of the issues, or at least in the top 3 issues, for the Father.
27. Fourthly, notwithstanding the Father’s opposition, at least since 2020, for X to attend B School, primarily on grounds of finance according to his material, he has done nothing since first raising his concerns in August 2020 either (a) to seek to resolve the matter by mediation or otherwise, notwithstanding the Mother’s pleas for this to occur rather than to keep funding lawyers and not to save for the children’s benefit, or (b) to bring an Application specifically to have the schooling issue dealt with. This could, ultimately, amount to findings being made that he either “sat on his hands” so to speak, and in consequence misled the Mother. Standing by, effectively forcing the other party to take formal action can amount to misleading conduct. I make no such finding here and simply raise it as a matter that may warrant further investigation at a final hearing, if that ultimately is the course required.
28. Fifthly, and following on from the previous comments, all of this is in circumstances where the Father has effectively stood by since X’s original Application in 2014, and has taken steps in more recent times, to keep as an option, X’s enrolment at B School. True it is that fall-back or alternative positions have been taken, such as an Application lodged with E School if things went south with B School. But apart from many emails in which his concern over fees is raised, as is his inability to meet them, he has effectively sat on his hands procedurally. He still does so, apart from paying for his lawyers, which is no formal criticism. It is simply to note the somewhat discordant approach in relation to “priorities”: paying lawyers is “ok” to pursue a specific goal, but to pay a little more for school fees at a school in which the children have been wait-listed since 2014, suggests a certain level of not the most consistent approach, or an irenic one, to co-parenting and schooling.
29. Put another way: imagine what might have been able to be done for the children if the money now incurred on lawyers had been spent on the children?
30. Sixthly, in his latest Affidavit, filed 22^nd June 2021 (noting again that the issue of X’s high school education has been the subject of discussion – and much else – at least since August 2020) at pars.24 – 29 the Father set out (a) his current, part-time income of $83,800, (b) his income when he returns to full-time work “in the new financial year”, namely $94,974, and (c) his calculations, over the full complement of years of high school from year 7 until year 12, the total fee cost for both children to attend each college.
31. The extra income the Father will have on his own figures will be a tad over $11,000 per annum. For B School, the total cost is $157,780; for E School, the total cost over the six years is $105,588. There is no allowance, understandably, for fee increases, which the Court was told, are in the pipeline, at least for E School. Likewise, these figures do not take account of all the usual sundries that go with educating children, which range from school uniforms, excursions and much more besides.
32. On these figures, the Mother submitted, after the Court made the same points, that when one breaks down these figures over the period of school years, the difference between the school fees in both schools totals $52,192. When this is broken down still further per year, this amounts to an annual difference in fees of $8698, which approximates to $83 per week. For each parent, this would amount to $4,349 per year. Even on the Father’s current income of just under $84,000, this would not, on its face, constitute an insurmountable hurdle. This becomes even less of a financial burden, on the Father’s evidence, once he resumes full-time work and earns (on his figures) just under $95,000 per annum. Ultimately, it is very much about “choice”; the choice of life-style, and the choice of education, always accepting, as the High Court acknowledged in U v U (in a slightly different context to be sure) that parenting, ultimately, is about sacrifice.
33. In the joint judgment of Gummow and Callinan JJ (with whom Gleeson CJ agreed), their Honours stated, at [92]:^[2]

The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.

34. Seventhly, at par.25 of the Father’s June 2021 Affidavit, he refers to his need for some prudence and frugality (he says “restraint”) in his spending “to ensure that the children and I have a reasonable standard of living.” This is more than fair and reasonable. But it is also in circumstances where the email correspondence between the parties, earlier referred to, makes plain that neither parent, nor the children, goes without – whether it be multiple pullovers, or seeking reimbursement for worm tablets. Priorities and balance are not always immediately obvious in relation to one or other of the parties. The sooner they resolve property matters, especially at the Conciliation Conference, the better everyone will be. Parenting may then become a tad easier too.
35. In my view, on an interim basis, the following matters are determinative of the current schooling issue: (a) the proximity of B School to the residence of the parents; (b) on the untested evidence, X has friends who will be going to both colleges; (c) the long-time Application, supported and continued by the Father, for X (and in turn Y) to attend B School; (d) the relatively modest difference in the school fees, accepting that such fees are but one regular impost in children attending school; (d) the very late reference by the Father to X expressing a view about attending E School cannot be tested; (e) the fact that there is no current offer available to X from E School, and there may never be because of the over-supply of applications to E School, whereas there is a current offer available from B School (this is a sort of “bird in the hand being worth two in the bush” argument).
36. For these reasons, absent any other agreement in writing between the parties, in accordance with interim Order 2 as sought by the Mother in her Response (which is in the proper form of the Order to be made), filed 16^th June 2021, X shall attend, and his parents will undertake all necessary steps to ensure that his place at, B School is accepted as a matter of urgency. Either parent is at liberty to provide B School with a copy of these Orders.
37. There shall be a notation regarding payment of school fees to the effect that the school fees, unless otherwise agreed in writing between the parties, shall be shared equally between the parents. One hopes, regrettably only with a modest amount of hope, that the issue of fees – procedurally and otherwise, will not remain an ongoing or outstanding issue. It might otherwise form part of the discussions at the forthcoming conciliation conference.
38. Although there are, in my view, grounds to make an Order for costs because of the circumstances outlined regarding the time-frame concerning how long the issue has been canvassed between the parties, and the lack of Application by the Father, at this time I will simply make an Order that the Mother’s costs in relation to the schooling Application be reserved.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville.

Associate:

Dated: 22 July 2021

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^[1] There has been some slight delay in providing the written reasons because of (a) a period of medical leave, followed by (b) a short period of personal leave.
^[2] U v U [2002] HCA 36; (2002) 211 CLR 238.