School Selection Re G: Children’s SchoolingSchool Selection

@ para 65:

First, we approach the question of the wife’s application without any legal presumption that favours acceding to the proposal of the parent with whom the children are living. Section 65E of the Act requires a determination between the competing proposals on the basis that the best interests of the child are the paramount consideration. Although 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. While his comments were made in the context of a relocation dispute, it is apposite in this regard to refer again once again to the judgment of Kirby J in AMS v. AIF; AIF v. AMS. His Honour said at page 86,050 (para 193):-

“…it is important to remember that in Australia, whilst the welfare (or best interests) of the child are, by statute, the “paramount” consideration in the exercise of jurisdiction such as was invoked here, they are not the sole consideration. In this respect, the position in this country is different from that in Canada [f/n Divorce Act, RSC 1985 c 3 (2nd Supp), s 16(8).]. It more closely conforms to the language of the Convention on the Rights of the Child [f/n Convention on the Rights of the Child, Art 3.1: “In all actions concerning children, whether undertaken by … courts of law … the best interests of the child shall be a primary consideration.”.] Statutory instructions as to the paramountcy that is to be accorded to the child’s welfare or best interests are to be understood as they apply to a child living in Australian society, normally in relationship with both parents and other members of its family. Whilst the legislation considered in this case, and later statutory reforms, give the highest priority to the child’s welfare and best interests, that consideration does not expel every other relevant interest from receiving its due weight. In part, this is because (as the English courts recognised long ago) the enjoyment by parents of their freedoms necessarily impinges on the happiness of the child [f/n Poel v Poel [1970] 1 WLR 1469; P v P [1970] 3 All ER 659.]. But, in part, it is also because legislation such as FLA 1975 [Family Law Act 1975 (Cth) and FCA 1975 [Family Court Act 1975 (WA) is enacted to take effect within a society of a particular character whose members enjoy a high measure of personal freedom, diminished only to the extent that the law obliges.”

[2000] FamCA 462

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA

AT MELBOURNE

Appeal No. SA 85 of 1999

No ML8089 of 1997

Re G: Children’s Schooling

EDITED

REASONS FOR JUDGMENT OF THE FULL COURT

Coram: Nicholson CJ, Kay and Brown JJ
Date of Hearing: 23 January 2000

Date of Order: 23 January 2000

Date of Publication
Of Reasons for Judgment: 19 May 2000

Appearances: Mr Kirkham QC with Dr. Ingleby of Counsel, instructed by Coady’s, Solicitors, DX30208 Richmond appeared on behalf of the appellant husband.

Mr Meldrum QC with Ms Johns of Counsel, instructed by Clancy & Triado, Solicitors, DX12403 Camberwell appeared on behalf of the respondent wife.

Name of Appeal:  RE G: Children’s Schooling (SA 85 of 1999)
Date of Appeal Hearing and Order:          23 January 2000
Date of Judgment:  19 May 2000
Appeal Coram  Nicholson CJ, Kay and Brown JJ

Catchwords: Family Law – Children – Specific Issues Order – Education – Choice of School – Best interests of the child – Whether choice made by residence parent is to be preferred – Weight to be placed on prior agreement between the parties – Treatment of children’s wishes – Regard to be had to the burden of travel to school by residence parent – ss60B, 65E, 68F.

This was an appeal by the husband against orders made by Dessau J on 20 October 1999 permitting the wife to enrol the parties’ sons, “C” aged 10 and “M” aged 8 as day students at a particular private school (“School B”).

Pursuant to consent orders made in 1997, the parties were jointly responsible for the long term care, welfare and development of the children. The wife is solely responsible for their day to day care, welfare and development, the children reside with her and the husband has contact.

The children had been educated at another private school (“School A”) since pre-school. The wife had always wanted the children to attend School B but the parents had agreed upon School A as a compromise. The competing applications as to which school the children should attend proceeded on the basis that matters concerning the respective qualities of the schools be before the trial Judge by way of the opinions of the parents.

In granting the wife’s application, Dessau J had regard to matters such as:

The children have lived constantly with their mother;
The wife undertook thorough researches into the two schools;
The children’s wish to remain at School A, their good progress at School A and their reluctance to transfer to School B;
The younger child’s physical disability;
The travel time from the children’s residence with the mother is much shorter in respect of School B than School A;
The wife’s intention to undertake retraining or employment and the hindering effect of the travel associated with School A;
A Family Report prepared for the proceedings which was consistent with the wife’s view that the children would cope with a change to School B.

Her Honour raised with counsel the authority of Newbery v. Newbery (1977) FLC 90-205 (per Demack SJ as he then was) which held that the custodial parent has the right to decide which school a child attends. Neither counsel pointed her Honour to a contrary line of authority and she made reference to the decision in the course of her reasons for judgment.

The husband’s appeal raised four grounds:

The learned trial Judge erred in law by holding that the parent with whom the children lived had the right to decide the school which the children should attend.
The learned trial Judge applied a wrong legal principle (the decision in Newbery (1977) FLC 90-205) and omitted consideration of the impact on that decision of the changes to the Family Law Act 1975 effected by the Family Law Reform Act 1995 (Cth).
The learned trial Judge erred in law and/or fact by changing arrangements without any cogent evidence that the proposed change would benefit the children.
The learned trial Judge erred in law by not treating the best interests of the children as the paramount consideration.”

Held: per curiam, appeal dismissed; directions made as to costs submissions.

Her Honour’s consideration of Newbery’s case cast a shadow over the process by which she reached her decision because the decision did not represent the law as it stood immediately prior to the passage of the Family Law Reform Act 1995 and does not stand as good law since its passage: B and B: Family Law Reform Act 1995 (1997) FLC ¶92-755 applied; Newbery v. Newbery (1977) FLC 90-205 disapproved.
In circumstances where Dessau J:

introduced the question of the guidance to be obtained from Newbery’s case;
received no submissions challenging the authority of the decision;
referred to the decision in her judgment adding that she was not aware of “any subsequent line of authority to the contrary”; and
supported her decision with reference to the decision;

the Full Court considered that, cumulatively, her Honour’s reasoning displayed an erroneous preference accorded to the wishes of the resident parent that was based on a decision found to no longer be good law.

The trial Judge properly fulfilled the process of paying appropriate regard to the children’s wishes and explaining her reasons for departing from them: R and R: Children’s Wishes (2000) FLC ¶ 93-000, Harrison and Woollard (1995) 18 Fam LR 788, (also indexed as H v W (1995) FLC ¶ 92-598) applied.

Contrary to the submissions of the respondent, the Full Court did not accept that the judgment should be allowed to stand on the basis that there was ample other justification for the decision which her Honour reached.
In re-exercising the discretion, the Full Court proceeded on the basis that:

“[a]lthough 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.” : AMS v. AIF; AIF v. AMS. (1999) FLC ¶92-852, Burton and Burton (1979) FLC ¶90-622 referred to.
the object and principles in s60B are to be taken into account in the course of considering the relevant matters in s68F(2) which provide a check list to meeting the essential enquiry required by s65E. The importance of the object and principles in s60B varies from case to case and were of little decision-making assistance in the present dispute.
notwithstanding the appellant’s argument as to the weight that should be attached to the prior agreement between the parties, s60B(2)(d) does not restrict the Court’s jurisdiction and does not create a presumption which forecloses the inquiry as to what is in the best interests of the child at the time a decision is sought. Prior agreements in relation to schooling and other parenting matters are a consideration, but only that, which a trial Judge should take into account.

The Full Court identified the paragraphs of s68F(2) relevant to the case, and for each of the relevant factors, evaluated the evidence and submissions in respect of the competing proposals. It concluded in the fresh exercise of discretion that the children should be enrolled in the school chosen by the wife. As this had been the order of the trial Judge, and her order would not be disturbed, the formal order of the Court was to dismiss the appeal.

REPORTABLE

INTRODUCTION

By Notice of Appeal filed 19 November 1999, the husband appealed against paragraph 1 of the orders made by Dessau J on 20 October 1999 permitting the wife to enrol the parties’ children as day students at [School B]. In lieu thereof, the appellant sought the following order from this Court:-

“(1) That each parent ensure that the children of the marriage continue to attend [School A] and each parent be restrained from changing the children’s school without the written agreement of the other.”

The parties’ children are two boys aged 10 [C], … and 8 years ([M] … . [C] is presently in Year 4 at [School A]. [M] attends the same school and is in Year 2. The children have been educated at [School A] since pre-school. [School A] had been agreed upon by the parents, as a compromise: the husband had favoured a local primary school, whereas the wife had favoured [School B].
[School A] has more than one campus. In 1997 and 1998, the children both attended the [same] campus which is in close proximity to what was the parties’ matrimonial home … . During 1996, [C] attended [that] campus and during 1995, [C] was in prep grade at [another] campus. During both of these years, [M] was at [yet a different] campus in kindergarten.
Before Dessau J, the husband opposed the wife’s application to enrol the children this year at [School B]. He wished that that they remain at [School A].
On 9 December 1999, a stay of the order permitting the children’s enrolment was granted by her Honour pending the hearing of the appeal. The hearing was expedited and took place on 25 January 2000. Both parties sought a decision on the day of the hearing and, if we found her Honour had erred in an appellate sense, invited the Court to re-exercise the discretion rather than remit the matter for retrial.
After hearing argument on behalf of the parties, we announced that we were satisfied that her Honour had fallen into error but that in exercising the discretion afresh, would not interfere with the order under appeal. Accordingly, we announced that the appeal would be dismissed and that our reasons for judgment would be published at a later date. These are our reasons.

BACKGROUND

The wife … is aged 40. She is a trained [allied health professional], presently engaged in home duties. She owns and resides in a property [near to School B]. The husband [is aged 41] … . He lives in [B] and is the director of his own company, … .
The parties commenced cohabitation [in] 1985. They married [in] 1986. They separated [in] 1997.
On [the date of separation], there were consent orders, pursuant to which the parties were to be jointly responsible for the long term care, welfare and development of the children but the wife was to be solely responsible for their day to day care, welfare and development. The children were to reside with her and the husband to have frequent contact. On the same date, the parties entered consent property orders, pursuant to which the wife received a [substantial] payment … .
Orders were then made on 18 December 1998, again by consent, varying the contact arrangements and her Honour observed that the arrangements have run relatively smoothly.
On 30 July 1999 the wife filed an application that (inter alia) she be at liberty to enrol the children at [School B], which application was opposed by the husband. The competing applications were heard by Dessau J on 12 and 13 October 1999. The parties agreed that matters concerning the respective qualities of the schools be before the trial Judge by way of the opinions of the parents.

THE TRIAL JUDGMENT

Her Honour noted at the outset that she had to determine the issues concerning the children “in accordance with the children’s best interests (see s. 65E of the Family Law Act), performing my task against the backdrop of the objects and principles set out in s. 60B, and taking into account the relevant factors in s. 68F of the Act.”
Turning specifically to the disagreement as to schools, her Honour made the following findings as to what she termed “common ground” between the parties:

Both schools are church based Christian, private and co-educational schools.
The parents agreed that both are good schools, although they differ in their views as to the opportunities offered in each.
The parents agreed that the boys are happy, well settled and showing good progress at their current school.
The fees at [School A] are approximately $10,000 less per annum than at [School B].
Although the husband had argued that [School A] was a smaller school, figures subsequently tendered by consent indicated that the schools are [large and]comparable in size …..
[School B] is spread over three campuses. In 2000, [School A] will grow from three to four campuses, with anticipated growth in the number of children attending.
“Mrs [G] now lives … very close to the [School B] campuses, with the Senior College in fact being just a few minutes walk from her home. The [School A] campus, attended by the children at present, is much closer to the home of Mr [G] than that of Mrs [G]. It is about 50 minutes to an hour round trip by car from the wife’s home, each morning and afternoon.”.
“Mrs [G] has undertaken several visits and tours of [School B], and she has read the [School B] prospectus material. She has also visited and considered other [the locality] schools. Mr [G] has not partaken in any of those tours, visits nor has he read or considered any material of the other schools.”
The parties are “two intelligent, genuine, caring parents simply having different points of view on this important issue.”
“The boys presently express a preference to stay in their familiar setting at [School A] but I will consider that further in the context of the family report.”
After considering the family report, her Honour said:

“As to the children’s wishes, I accept the counsellor and the wife’s view that the children are reluctant at the prospect of change, but that they would cope happily if it were to occur. The only concern I have is that any normal reluctance could only be exacerbated if the issue remains a source of conflict between their parents …”

Her Honour described the wife’s case in the following way:-

“The wife’s case is basically as follows. She has always wanted the children to attend [School B]. After separation, she did not want to make any move nor to destabilise the children further. She was of the strong view that they needed familiarity and stability. Sadly for them, three of their grandparents had died within a 15 month time span, leading up to the period of separation and around separation. Obviously, Mrs [G] and her husband had separated and she and the children then moved home. She wanted [C] also to enjoy being in the senior grade 4 year, at his present school, so that he could enjoy the added responsibility in that regard. She now assesses the children as sufficiently settled to cope with the move. She thinks that their present views about changing school are no more than the normal uncertainty that a child would express at the prospect of change.

[M] is a little boy with special needs to the extent that he was born [with a physical disability], but he is apparently a very bright and confident child. Mrs [G] feels that he will be able to cope with the change, despite an expressed concern by him at having to explain this slight disability to other children. She believes that [M] will be extended in specialist programs for bright children, and that he would enjoy the challenges offered at [School B]. She prefers [School B]‘s sporting programs and says that the school is strong in that regard, with a huge variety of sports, compulsory weekend sport, and local team participation.

The school is close to her home, which would cut out travel time, particularly when she is ferrying children back and forth for after school activities. [School B], in her view, offers a wide range of after school activities, including music and drama opportunities. She says that [C] needs confidence in his academic and in his social situation, and she believes that the enhanced sporting opportunities in which he could excel would have a flow on effect, so that he would gain that confidence in other aspects of his school life.

Mrs [G] is happy with the emphasis on academic excellence at [School B], and it is quite obvious that in outlining her case, that she has approached this from the point of view of the excellence of [School B] in its opportunities, but has not been disparaging of [School A], as such.”

Her Honour described the husband’s case as follows:-

“He says that the parties always mutually decided upon [School A]. He says the boys have had all their schooling there. They are happy, settled, flourishing in fact, and that they want to stay. It is his view that they are able to meet a broader range of children at the less expensive [School A], and that the school is in any event an excellent school. He does not want [M] put in a position where he needs to commence in a new school, having to explain his disability to a new group of curious children. He does not believe that the travelling that the wife has to do for the children’s schooling and activities is onerous and, ultimately, he says, if the decision is to move the children to a campus closer to their home with their mother, then the children could move to one of the [nearer] [School A] campuses, although this was put very much as an alternative and not his preferred option.”

Her Honour had the benefit of a Family Report prepared by a psychologist (Ms. W) pursuant to an order made by consent on 1 September 1999. Her Honour’s reasons for judgment extracted the following paragraphs from the “Summary” section of the Family Report:-

“For the children to continue to stay at [School A], then this would clearly accord with their wishes. However, this will also mean that Mrs [G] is going to be involved in fairly extensive travelling for the next few years and, as I understand it, the children are likely to have to move to [another] Campus once they complete year 8 or year 9, if they continue at [School A]. The advantages for the children staying at [School A] are that it will continue to provide them with security and stability, however, it will also mean that they are less likely to have friends living close by in the [locality] and, again, this will involve their mother in lengthy travel.

Were the children to attend [School B] next year then this would mean that the travel time would be seriously lessened and they would have the opportunity of making more friends in the [the locality] area. I understand that were Mr [G] to be given permission to allow the children to attend [School B], that she has many plans in terms of introducing the children to other children who will be attending that school. It is her view that after a period of time that the children will settle in and that they will cope with this change, as indeed most children do. Mrs [G] maintains that she made a decision to minimise the changes on the children by continuing them at [School A] for this year, however it was always her intention for the children to attend [School B]. She would also like to be able to have the opportunity of doing some retraining or doing some work and the travel that is involved has prevented her from exploring this in any depth.

In many ways the decision about whether the children should attend [School A] or [School B] is in fact an old argument that has existed between the couple and whilst Mr [G] feels that he has compromised by allowing the children to attend [School A], he does not believe that the instability that would be created by a change of school is necessary. From Mrs [G]’s point of view, she still feels as though Mr [G] is attempting to have power and control over her life by delineating the amount of travel and where the children’s school base will be.

The views expressed by the children from my perspective were within normal limits and indicative of a fairly normal reluctance to change schools. The weight that is [sic] places on the boys wishes is in many ways a decision that the parents need to deal with, taking into account the effect that the degree of travelling will have on the family unit versus the effect of a change of school. Were the boys to change to [School B], after a period of time they would no doubt make new friends in the [the locality] are [sic] and expand their social network within [the locality].”

Her Honour recorded that a closing submission from counsel for the husband, submitted that Ms W’s conclusion appeared to be at variance with her earlier notation, under the heading “Interview with the Children”. Ms W there said:-

“Both boys expressed a reluctance to attend [School B]. It is unclear to me whether this reluctance is beyond the normal bounds that one would expect with that degree of change. If most children are happy with their school, as indeed [C] and [M] are, they would no doubt express some reluctance about a move. [M] indicated that he did not wish to change schools because he and [C] would not be able to play together because of the way in which [the locality] is set up and, furthermore, he would not be able to play in the school band at [School B]. [M] also indicated that most of the children at his current school were aware of his disability and therefore no-one asked questions about this. He expressed some reluctance to have to go through all this again at another school.”

Her Honour then recorded the following paragraph from Ms W’s report:-

“Whilst both boys express some strong reluctance to change schools, it is unclear whether this reluctance would be less strong if both parents were agreeable to them changing to another school, and if the boys felt that they had no major say in this decision.”

Her Honour then said:-

“Although she [Ms W] noted the children’s views and was, in that context, unclear whether their reluctance to change schools was beyond normal bounds, when assessing all of the material, she concluded otherwise that their views were “… indicative of a fairly normal reluctance to change schools.” Amongst other things, Ms [W] clearly included a consideration of the boys’ awareness of their parents’ disagreement on this issue, when arriving at her conclusion.”

Dessau J’s Factual Conclusions

In considering the factual material before her, Dessau J appeared to take account of the following matters:

the common ground set out above;
the wife has genuinely set about studying the opportunities available to the children;
“The wife is a caring, loving parent with the children’s interests at heart. No reason emerged in the course of the case to “second guess” her opinion that the opportunities for the children at [School B] are extensive and attractive. Mr [G] did not really suggest otherwise, but I note his expressed view for [School A] is given in the context of not having looked at or considered other schools.”;
the husband preferred the broader socio-economic range he perceived at [School A] but “he agreed that parents at both schools would come from different occupational backgrounds and groupings.”;
“the concern for [M] and his disability is not in the circumstances a particularly significant one.”;
“As to the children’s wishes, I accept the counsellor and the wife’s view that the children are reluctant at the prospect of change, but that they would cope happily if it were to occur. The only concern I have is that any normal reluctance could only be exacerbated if the issue remains a source of conflict between their parents …”.

Dessau J’s Consideration of the Wife as the Residence Parent

Her Honour placed emphasis on the fact that the children had lived constantly with their mother and said:-

“As the residence parent she now seeks to educate them at another school, one which is unchallenged as a fine school, with what she perceives as added opportunities. It is close to her home with the opportunity for the boys to mix with local children and to engage in local activities without the rigours of unnecessary travel. In the course of submissions I directed both counsel to an early decision in this Court, a decision of Newbury v. Newbury (1977) [sic Newbery v. Newbery] FLC 90-205 where Demack SJ as he then was, faced a similar situation faced by me in this case.

The parents could not agree on the school for the children to attend. At page 76,070, his Honour, said:

“Thus in my opinion this Court should not be directly involved in answering the question which school a child is to attend. The Court may be involved indirectly as a consideration in determining the amount of maintenance, or as a circumstance affecting the welfare of the child on an application for custody. Perhaps there may be circumstances when the choice of school is so deleterious to the welfare of the child that it will raise the whole issue of who is to have custody, but it is difficult to envisage this being the only circumstance which called for a change in custody. Thus in my opinion the mother having custody of the children has the right to decide.”

I am conscious that that was the decision of a single Judge, but neither counsel pointed me towards, nor am I aware of any subsequent line of authority to the contrary.

Mrs [G] is the resident parent. She is a fine and responsible one. She has reached a decision. She has not reached it frivolously nor without dedicated research and consideration. She has not reached her decision myopically without due consideration for the children’s special needs and wishes. In my view she should thus be able to select [School B] for these boys. There is no suggestion that it is a decision that would be so deleterious to the welfare of the children that it would, for example, raise the whole issue of custody or persuade me against accepting and permitting her to exercise her wishes.

I would just add that it would be in the children’s best interests to attend the school about which their primary carer is enthusiastic and confident. If she feels thwarted in her efforts to enhance their educational and allied opportunities, her frustration and disappointment on a daily basis would be manifested, even though she would certainly try to hide it. The children’s confidence in and enthusiasm for school is imperative and I should not promote a situation which might undermine that confidence and enthusiasm.”

Her Honour also said:-

“I add that Mrs [G]‘s concern for the boys to be close to school with local friends and less time travelling is a reasonable one and a matter I took into account. For the reasons I have given, to adopt the husband’s fall-back position that the children change to a campus of [School A] closer to the mother’s home would not suffice. In any event it seems that neither parent would actually be satisfied with that outcome.”

GROUNDS OF APPEAL

The following grounds of appeal were relied upon by the appellant:-

“1.      The learned trial Judge erred in law by holding that the parent with whom the children lived had the right to decide the school which the children should attend.

2.        The learned trial Judge applied a wrong legal principle (the decision in Newbery (1977) FLC 90-205) and omitted consideration of the impact on that decision of the changes to the Family Law Act effected by the Family Law Act 1995 (Cth).

3.        The learned trial Judge erred in law and/or fact by changing arrangements without any cogent evidence that the proposed change would benefit the children.

4.        The learned trial Judge erred in law by not treating the best interests of the children as the paramount consideration.”

It is convenient to note here that the fourth ground of appeal did not seem to be independently pursued in either written submissions or oral argument save that it was implicitly the consequence of the errors alleged in grounds 1,2, and 3.

ANALYSIS OF THE ARGUMENTS

In approaching the appeal, we were mindful of the circumscribed role of this Court when hearing an appeal from a discretionary judgment. The well-known deference accorded to the decision of a trial Judge in such circumstances was recently underlined in the High Court of Australia by Kirby J. In the family law relocation case of AMS v. AIF; AIF v. AMS (1999) FLC ¶92-852 at page 86,042-3, his Honour stated (at para 150):-

“…an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved [f/n In the Marriage of White [1995] FLC ¶92-648 applying In the Marriage of R (1988) 23 Fam LR 456 at 471; In the Marriage of A and J [1995] FLC ¶92-619.]. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial [f/n Gronow v Gronow (1979) 144 CLR 513 at 519; cf In the Marriage of Skeates-Udy and Skeates [1995] FLC ¶92-626 at 82,294 – 82,295; Moge v Moge (1992) 43 RFL (3rd) 345.].”

However, Kirby J in this passage was not referring to circumstances where it is asserted that the trial judge misdirected herself in respect of the applicable law to be applied in determining the dispute between the parents, and impermissibly gave weight to the proposal advanced by the parent with whom the child lives. Such misdirections, if established, constitute a material error warranting intervention by an appellate court (see the discussion by Nicholson CJ in R v B (1996) FLC ¶92-658).

Preference to the Residence Parent

The written submissions filed by the appellant state:-[1][1] Note: due to formatting, the footnote numbers in our extract from the submissions do not correspond with those observed in the in the hard copy submissions provided to the Court.

“12. The learned trial judge held that because there was no reason to “second guess” the wife’s preference for [School B], and because she was the parent with whom the children had lived constantly, she should, following the principles set out by Demack SJ in Newbery (1977) 90-205 be able “to select [School B] for these boys” (Reasons for Judgment para 37, AB21). It was important to the learned trial judge that it “would be in the children’s best interests to attend the school about which their primary carer is enthusiastic and confident” (Reasons for Judgment para 38, AB21).

…

15. The learned trial judge’s reasoning closely followed that of Demack SJ in Newbery. This decision should not have been followed for 2 related reasons.

16. First, in Newbery the parent with whom the children lived had an order for sole custody. This order was held (at 76,070) to give the mother the right to make the decision as to which school the children should attend. Although the later decision of Treyvaud J in Bishop made it clear that the exercise of the sole custodian’s discretion was subject to the overall control of the court’s welfare jurisdiction (at 76,191) this was stated to be only in “appropriate but very rare cases [where] the choices offered by the father and mother are so divergent that [the child’s] future will be markedly affected dependent upon which choice is preferred by the court.”

17. The factual distinction between (i) Newbery and Bishop; and (ii) this case is that here, paragraph 1 of the consent orders made 28^th August 1997[2] provided for “joint responsibility for making decisions about the long term care, welfare and development of the children”.

[2] Which was not varied in December 1998 although the wife made application to vary it in these proceedings.

18. Whatever view is taken as to the desirability of joint long term responsibility orders,[3] it is clear that they do make a difference to the legal relationship between the parents.[4]

[3]Critical views of such orders were expressed by Kay and Fogarty JJ in H and W at [1995] FLC 81,951.

[4]In addition to Kay and Fogarty JJ in H and W at [1995] FLC 81,951, see Vlug and Poulos per Finn, Kay and Moore JJ at 84,594 to 84,599 and counsel for the husband’s closing AB211.15.

19. Second, the decision in Newbery is based on the concept of parental rights. One of the amendments to Part VII of the Act effected by the Family Law Reform Act 1995 (Cth) with effect from June 1996 was the introduction of the objects and principles set out in section 60B.

20. The language of section 60B(1) makes it clear that the concept of parental rights is no longer relevant to determining the best interests of the children. Section 60B clearly derives from the statements of Lord Scarman in Gillick that “parental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child.” This is a statement of fundamental importance because it makes it clear that the source of the rights is the child rather than the parent’s ownership of the child. Parenthood is therefore a source of duties and responsibilities rather than of proprietorial rights.

21. The inappropriateness of concepts of parental ownership of children led the English and Australian legislatures,[5] to remove the concept of “custody” from the law.[6] Lord Scarman’s statements were also approved by the majority of the High Court in Re Marion.[7]

22. The importance of section 60B has been stated by the Full Court on a number of occasions in various contexts. Although the most extended discussion is in B and B,[8] other examples of its application can be seen in, for example, Re C and D,[9] Cooke and Stehbens[10] and H v E.[11] Although the objects and principles are subject to the paramountcy of the child’s best interests, the objects and principles are required to be taken into account and “may be decisive”.[12]

23. Here the learned trial judge did not take the objects and principles into account. Although the learned trial judge referred to the objects and principles in section 60B of the Act as a “backdrop” (AB12 para 11), the passage which forms the body of her Honour’s reasons omits consideration of the objects and principles in section 60B.”

[5]Family Law Council Letter of Advice to the Attorney-General on The Operation of the (UK) Children Act 1989 (Canberra, Family Law Council, 1994) paras 23 to 38 (copy attached hereto pursuant to Practice Direction 90/6 para 4(2)(d)).

[6]B v B per Nicholson CJ, Fogarty and Lindenmayer JJ at [1997] FLC 92-755 para 3.1.

[7]Mason CJ, Dawson, Toohey and Gaudron JJ at [1992] FLC 79,174.

[8]At [1997] FLC 92-755 paras 3.1 to 3.36 and paras 9.1 to 9.60 per Nicholson CJ, Fogarty and Lindenmayer JJ..

[9]At [1998] FLC 85,236 to 85,237 per Nicholson CJ and Baker J.

[10]At [1999] FLC 85,821 per Ellis, Lindenmayer and Mushin JJ.

[11]At [1999] FLC 85,892 to 85,893 per Ellis, Kay and Steele JJ.

[12]B v B per Nicholson CJ, Fogarty and Lindenmayer JJ at [1997] FLC 92-755 para 9.60.

The written submissions filed on behalf of the respondent state:-

“8.          As to paragraph 12 [of the appellant’s submissions], the decision in Newbery (1977) 90-205 was one of a number of factors the learned trial Judge took into account in determining the children’s best interests (Reasons for Judgement AB Vol.1 pp.18-22, paras 28-40), those factors including but not being limited to:-

a.           The wife had studied the available educational opportunities, whilst the husband’s views were given in a context of he not having looked at or considered other schools.

b.           The husband preferred his children in a less “elite” setting, though [School A] itself was a private school requiring the capacity to pay private (albeit lower) fees.

c.           The child [M]’s disability was not a significant circumstance as it was common ground that he approached life at “full throttle” and any change would be sensitively handled and he would be provided with the necessary support.

d.           The wife (as the resident parent) and the counsellor assessed that the children would cope if change were to occur.

e.           The wife has had the role of primary caregiver and the husband recognised that role. He acknowledged that there was no-one in the Court who knew the children better than the wife (Transcript AB Vol. 2, p.194, 3-7).

f.           [School B] was unchallenged as a fine school and the wife perceived that it provided the children with added opportunities.

g.           The wife reached her decision regarding the schools with dedicated research and consideration, considering the children’s special needs and wishes.

…

10.      As to paragraphs 15 to 23 [of the appellant’s submissions]:-

1.           At the time the case of Newbery v. Newbery (1977) FLC 90-205 was decided, the welfare of the child was the paramount consideration in determining such matters, which is comparable to the current law, being that the best interests of the child is the paramount consideration. To the extent that the learned trial Judge relied on that decision, having regard to the comparable principles, such reliance is appropriate.

2.           Section 60B of the Family Law Act 1975 (“the Act”) states the object of Part VII of the Act and the principles underlying it.

3.           The learned trial Judge was asked to make a parenting order within the meaning of S.64B of the Act. The Full Court has set down the approach to be taken by the court in considering whether to make a parenting order. In B and B: Family Law Reform Act 1995 (1997) FLC ¶92‑755 at p. 84,219 that was stated in the following terms:

“9.51 In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Part VII of the type to which we have referred, starts from that essential premise and it remains the final determinant.
9.52 The legislature has also made it clear that in that process the Court is required to have regard to both the provisions contained in s 68F(2) and those contained in s 60B.”

At page 84,220 the Full Court then stated:-

`9.54 Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Part VII. The section is subject to s 65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in sub‑ sec (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in sub‑sec (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court’s consideration of the matters in s 68F(2) and to the overall requirements of s 65E. The matters in s 68F(2) are to be considered in the context of the matters in s 60B which are relevant in that case. But s 65E defines the essential issue.”

a. In exercising her discretion, the learned trial Judge considered the objects and principles of the Act and the matters set out in S.68F of the Act in determining the bests interests of the children (Reasons for Judgement AB Vol. 1, p. 12, para 11). Her Honour considered all relevant factors in determining the children’s best interests and arriving at a decision which would assist the children in achieving their full potential (see paragraph 8 hereof).”

Having been taken through the documentary material and transcript in the Appeal Book, we considered that it was no easy matter to resolve the competing interpretations of her Honour’s approach. It is plain though, that her Honour in no way applied a blanket presumption in favour of the parent with whom the children live.
The reasons for judgment clearly set out the case-specific arguments that each party urged her to accept. They demonstrate that she evaluated those arguments having regard to the evidence of the parties and the Family Report prepared by a Court Counsellor who was not required for cross-examination.
We therefore do not accept the first ground in the Notice of Appeal, that her Honour held” that the parent with whom the children lived had the right to decide the school which the children should attend” (emphasis added). The appellant’s complaint is incongruent with the attention her Honour paid to the competing arguments.

In a similar vein, we think that the appellant wrongly criticised the manner in which her Honour referred to s60B. That provision was introduced by the Family Law Reform Act 1995 and is in the following terms:-

“60B(1) The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

60B(2) The principles underlying these objects are that, except when it is or would be contrary to a child’s best interests:

(a)          children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b)          children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and

(c)          parents share duties and responsibilities concerning the care, welfare and development of their children; and

(d)          parents should agree about the future parenting of their children.”

The reality of the case before Dessau J was that neither s60B(2)(a) nor (b) were relevant. So far as s60B(2)(c) is concerned, and with no criticism of husband, the duties and responsibilities fall more heavily on the wife on a day to day basis.
So far as s60B(2)(c) and (d) are concerned, these are relevant insofar as decisions about schooling are a duty and responsibility of both parents and, in this case, there is common ground that there was a prior agreement between the parents on such matters. We agree with the respondent (para 13 of written submissions below) that s60B(2)(d) does not restrict the Court’s jurisdiction and does not create a presumption which forecloses the inquiry as to what is in the best interests of the child at the time a decision is sought. Prior agreements in relation to schooling and other parenting matters are a consideration, but only that, which a trial Judge should take into account.
The following remarks by the Full Court in Burton and Burton (1979) FLC ¶90-622 at 78,218 are useful to recall:

“Whatever may be sought to be read into the joint judgment of Murray and Lusink JJ, in Hayman and Hayman, we are of the view that no legal onus rests upon a party with whom a child is residing to show that a change would be detrimental to the child and no legal onus rests upon a party seeking a change to justify the change either by establishing that a change would be positively advantageous to the child in any other way. An existing status quo is but one factor to be weighed with all other relevant factors in determining a particular case. When weighing that factor, the quality of the status quo would require examination and if a long standing status quo is disturbed, the factors which influenced the Court to come to that conclusion should be clearly identified.”

Applying this approach to the appeal, it is clear that her Honour made an obvious effort to highlight germane matters which had been the subject of agreement between the parties. Such matters of “common ground” were actually the first issues Dessau J canvassed in her judgment after reminding herself of the need to determine children’s issues in accordance with s65E “against the backdrop of the objects and principles set out in s. 60B, and taking into account the relevant factors in s. 68F of the Act.” In the circumstances of the case, the object and principles of s60B were not of particular assistance to her Honour.
We do however accept that her Honour’s consideration of Newbery’s case casts a shadow over the process by which she reached her decision because, in our view, the decision did not represent the law as it stood immediately prior to the passage of the Family Law Reform Act 1995 and does not stand as good law since its passage.
In B and B: Family Law Reform Act 1995 (1997) FLC ¶92-755, the Full Court described the evolution of the current law and made the following apposite observations concerning the law as it stood when Newbery’s case was decided and shortly thereafter:-

“3.11 The Reform Act is not the first or only significant amendment to the Family Law Act provisions in relation to children since 1976. In the 1975 Act the relevant terms were guardianship, custody, access and care and control. Custody was interpreted in a way which covered most of what would generally be regarded as guardianship and custody: see Family Law Council Report 1982 – known as the Watson Committee Report, esp. at p.5 where this is discussed. The prevailing orders at that time were usually custody and care and control and because of the interpretation given to the term custody this gave the custodian very wide powers in relation to the children and very little to the other parent.

3.12 The Watson Committee recommended the use of the terms guardianship, custody and access, with guardianship defined to cover the responsibility for the children’s long-term welfare, and custody defined to cover the daily care and control of the children. Those recommendations were adopted in the 1983 amendments. They continued to apply until the Reform Act came into operation in 1996. The practice of the Court during that period was to continue the guardianship of both parents other than in exceptional circumstances and to make orders for custody and access. Custody in this sense had a narrower meaning than it had pre-1983, but it still gave to the custodian significantly greater powers than the access parent had.” (emphasis added)

At a later point in the judgment, the Full Court explained the significant conceptual shift introduced by the Family Law Reform Act 1995:-

“9.37 Section 64B defines a “parenting order”. It provides that a parenting order may deal with one or more of the following:-

(a)       The person with whom a child is to live (residence order)

(b)       Contact between a child and another person (contact order)

(c)       Maintenance of a child (child maintenance order)

(d)          Any other aspect of parental responsibility for a child (specific issues order)

9.38 This section and the subsequent sections of Div.5 emphasise one of the fundamental differences between the amendments introduced by the Reform Act and the previous legislation. Under the latter, the Court usually made a custody order in favour of one parent and an access order in favour of the other parent. The custody order carried with it not only residence but also powers in relation to the day-to-day care of the children. Now the structure of the Act is that the norm is residence and contact orders which deal only with the matters described above, leaving all other powers, authority and responsibilities in relation to children to be shared between the parents. If either parent desires to alter that position it is necessary for that person to apply for a specific issues order.

9.39 The aim of these provisions is twofold. Firstly, to underline the shared responsibilities of parents and to avoid, where it is unnecessary to do so, the apparent imbalance which was thought to arise from the custody/access regime. The changes are obviously far more than semantic. Residence is not custody by another name. It has a more constrained meaning, being limited to identifying the person or persons with whom a child is to live. In this it diverges from the English concept, in which authority to manage the child’s daily life is conferred by reason of a residence order, which the other parent, even when in possession of an order for parental responsibility, cannot restrict.” (emphasis added)

When regard is had to this discussion, it is apparent that the ambit of parental responsibility conferred upon a custodial parent at the time of Newbery’s case was more extensive than that which is enjoyed today by a parent with an order for residence in her or his favour. Indeed, it seems to us that prior to the commencement of the Family Law Reform Act 1995, Newbery’s case was inapplicable where a parent has an order for “custody” as the term was understood after the 1983 amendments to the Family Law Act which introduced orders in respect of “guardianship”.
The respondent conceded that Newbery’s case was taken into account by the trial Judge but in resisting the appeal, argued that there were ample other factors to justify the conclusion she reached. In our view, to take such an approach to the appeal would be incorrect. The first task of this Court is to determine whether or not the trial Judge misdirected herself as to the law. Only if such an error is made out should we then move to evaluate for ourselves the evidence and competing arguments as to choice of school.
Our examination of the transcript as well as her Honour’s judgment persuades us that the appellant had cause to be concerned about the trial Judge’s reliance on Newbery’s case in respect of the weight to be given to the preference of the parent with residence. During closing submissions, Mr Fookes who was then appearing for the husband, set out the evidence favouring maintenance of the status quo. There followed the following exchange (at AB 207-8):-

“MR FOOKES: …So your Honour, in accordance with the joint decision of the parties as responsible parents, the children went to that school and they have been there for some years and they have flourished there and it would be a high hurdle, in my submission, for the wife to get over to persuade a court that they should be moved from that school where they have been flourishing.
…
HER HONOUR: You have mentioned this hurdle to me before in another context today talking about her having an onus of proof to satisfy me and so on.

MR FOOKES: Yes

HER HONOUR: The case that was in the back of my mind that I actually found at lunch time was Newberry’s (sic) case.

MR FOOKES: Yes

HER HONOUR: Which of course is old but it has been followed as far as I can recall since.

MR FOOKES: Yes

HER HONOUR: Far from placing a high hurdle for the mother to jump, I mean it is effectively, as you are well familiar, telling me that when there is just an issue and it was similar there in that it was an issue between two reasonable private schools, that it really is a question that is ordinarily resolved by the parent with whom the child lives. Does not that really make it clear that the Court would only intervene directly where the choice is so deleterious to the welfare of the child as to raise the whole issue as to who is to have custody. So in a sense it is placing a completely different hurdle.

MR FOOKES: With respect, I understand what your Honour is saying but in my submission this is a case where the children have been flourishing at a particular school for some years. The wife seeks to change that and in my submission if she is going to change a well-established status quo which is inuring to the benefit of the children and in which they are flourishing, then perhaps not as a matter of law but as a matter of commonsense and fact she would have to demonstrate that there is some very good reason for doing that.

HER HONOUR: I can’t put the law completely to one side.

MR FOOKES: No, and I don’t ask you to. With respect I don’t of course ask your Honour to do that.”

Newbery’s case was also mentioned in the course of his closing submissions by Mr Geddes, then appearing for the wife. Referring to the travel associated with the children’s school attendance and associated social and sporting activities, he said (at AB 217):-

“There is more to bringing up these children than going to and from school 5 days a week and he [the husband] conceded that there are other social activities and sporting activities … and the person who is primarily responsible for those activities under the existing orders, that he does not seek to alter other than for the Wednesday night is the mother, and she is the one who has got to do the running around.
…
As your Honour quite correctly points out to my learned friend in Newbury (sic) that decision is usually made by the person who is the primary care-giver. …

The mother may be the best mother in the world if she is the primary care-giver, but the fact that today she left the violin behind, tomorrow it is the trumpet and on Wednesday or Saturday it is the hockey stick, they are the things that create the problems within the family: [M], why haven’t you got your trumpet? [C], where’s your hockey stick? And they are the day-to-day realities that mother has to deal with and can’t but help at some stage communicate her feelings subconsciously, something has to flow and that is why Newbury (sic) was decided in the way in which it was, it is very much a recognition of the common things and practicalities of a day-to-day living and caring for children.”

It is thus apparent, and in hindsight unfortunate, that neither counsel expressed doubts to her Honour as to the contemporary legal authority of Newbery’s case. Issue was only taken with its application to the facts of this case where a change to the status quo was being proposed.
In circumstances where Dessau J:

introduced the question of the guidance to be obtained from Newbery’s case;
received no submissions challenging the authority of the decision;
referred to the decision in her judgment adding that she was not aware of “any subsequent line of authority to the contrary”; and
supported her decision with reference to the decision;

we consider that, cumulatively, her Honour’s reasoning displays an erroneous preference accorded to the wishes of the resident parent that is based on a decision we have found to no longer be good law.

Contrary to the submissions of the respondent, we do not accept that the judgment should be allowed to stand on the basis that there was ample other justification for the decision which her Honour reached. As a matter of appellate process, it is necessary to first establish whether the Court has grounds for interfering with the first instance discretionary decision. Other than in the circumstances described by Gibbs J (as he then was) in DeWinter v De Winter (1979) FLC ¶90-605 at 78,091-2, namely a mistake of fact not affecting the outcome or the presence of a mistake of fact when the outcome is clearly correct, when such a ground has been found, the Court is normally obliged to find the appeal made out. If the Full Court considers the evidence enables it to re-exercise the discretion, the Full Court must undertake for itself an evaluation of the weight of evidence and arguments on the matter in issue.
Here, we were satisfied that the decision was based in part upon an error of law. On that basis, and at the urging of the parties, we considered the matter afresh in the re-exercise of the discretion. Before setting out our findings as to the re-exercise of the discretion, there are some pertinent matters raised in other arguments directed to the ground 3 of the appeal with which we should deal.

Change to the Existing Arrangements

Paragraphs 24-30 of the written submissions on behalf of the appellant state:-

“24. The focus on the concept of parental rights led the learned trial judge to omit consideration of, or to give less weight than should have been accorded to, the fact that the existing arrangements for the children’s education had been in existence since the start of the children’s schooling (including pre-school) by virtue of an agreement which had 3 important features.

25. First, the agreement reflected a genuine compromise between competing points of view which were sincerely held.

26. Second, the agreement that the children attend [School A] was agreed to have led to a situation where the children flourished.

27. Third, the children themselves wanted the agreement to continue for reasons which were particularly well-grounded in the case of [M], who had a particular disability which gave rise to particular concerns in relation to a change of school.[13]

[13]Cross-examination of wife AB171, counsel for husband closing AB209.

28. Further, however the existing arrangements arose, a party seeking to change arrangements which have promoted the best interest of the child must demonstrate good reasons based on cogent evidence why the arrangements should be changed.[14] This is not only a reflection of general principles which have evolved in the Full Court,[15] it is also reflected in section 60B.

29. The learned trial judge’s decision omits consideration of the principle in section 60B(2)(d) that “parents should agree about the future parenting of the children.”[16] The principle that parents should agree can only be upheld if protection is afforded to outcomes which are reached as a result of agreement. Such protection is afforded by a requirement that outcomes reached as a result of agreement are not departed from readily.[17] If the preferences of one of the parents were a reason for departing from an agreement then there would be little reason to make agreements.

30. Here, there were no good reasons and no cogent evidence to support the move. In particular, the absence of cogency is exemplified by the cursory dismissal of the children’s wishes[18] and the treatment of belief and speculation as a fact.[19]“

[14]AMS v AIF [1999] FLC 92-852 per Kirby J at 86,402, Gleeson, McHugh and Gummow JJ in agreement at 86,206. Counsel for husband opening AB153 and closing AB207, AB208, AB209.

[15]For example D and Y [1995] FLC 92-581 per Nicholson CJ, Baker and Tolcon JJ at 81,764 and note that the change of residence on which the mother at least partially relied occurred between the August 1997 and December 1998 consent orders.

[16]See the discussion of section 15AA of the Acts Interpretation Act 1901 (Cth) in Cooke and Stehbens [1999] FLC 92-839 at 85,822.

[17]Note that the learned trial judge did take into account the existence of an agreement in relation to child support issues (which are not the subject of this appeal) at para 49, AB22.

[18]H and W at [1995] FLC 92-598 per Fogarty and Kay JJ at 81,944 to 81,948 and at 81,958 to 81,968 per Baker J.

[19]Note the limited nature of counsel for the husband’s concession AB158.15.

Paragraphs 11-14 of the written submissions for the respondent state:-

“11. As to paragraphs 24 to 27, the learned trial Judge considered the existing arrangements for the children’s education, the circumstances of those arrangements and the wishes of the children and those matters were given appropriate weight (Reasons for Judgement AB Vol. 1, p. 12, paras 12-13, p.14; para 18). The learned trial Judge made her determination, balancing those factors with other considerations, including but not limited to the fact that the wife now resides … very close to the [School B] campuses (Reasons for Judgement AB Vol. 1, p.13, para 15), the evidence of Ms [W] (Reasons for Judgement AB Vol. 1, pp.16-18, paras 24-27) and the matters referred to in paragraph 8 hereof

12. As to paragraph 28, the learned trial judge had before her cogent evidence as to why the arrangements for the children should be changed and exercised her discretion appropriately, having regard to those matters.

13. As to paragraph 29, the principle enunciated does not act as a bar to a parent seeking the assistance of the Court in circumstances where the operation of an agreement is no longer desirable. Neither party contended that the Court did not have jurisdiction to determine the matter. Her Honour had regard to the agreement and having regard to the evidence before her was entitled to depart from the agreement if such departure was in the children’s best interests. There are many examples of decisions made by the Family Court where agreements made between parties are held not to be binding upon the Court.

14. As to paragraph 30, there was evidence and cogent reasons for Her Honour’s decision (see paragraph 8 hereof).”

In addition to raising issues about the approach in principle to be taken to prior agreements between parties about matters which subsequently become the subject of adjudication (discussed above), the submissions also draw attention to the treatment of children’s wishes.
The correct approach to the treatment of children’s wishes and the interpretation of the dicta in H and W (1995) FLC ¶92-598 (also indexed as Harrison and Woollard (1995) 18 Fam LR 788) was recently discussed by a differently constituted Full Court in R and R: Children’s Wishes (2000) FLC ¶ 93-000 (per Nicholson CJ, Finn and Guest JJ). We agree with the following observations made therein:-

“37. In developing his argument Mr Knox submitted that the importance of the wishes of children and the weight to be given to them has been settled since the decision of the Full Court in Harrison and Woollard (1995) 18 Fam LR 788, (cited by her Honour as H v W (1995) FLC 92-598).

38. He said that the case made it clear that children’s wishes are important and should not be departed from where they are soundly based and have been expressed without influence from either parent and are expressed against a background of particular facts and circumstances.

39. In our view, this statement is too wide and does not represent the effect of the decision in H v W. The Full Court in that case stressed the importance of trial judges giving proper weight to children’s wishes but it did not say that they should not be departed from.

40. In that case Fogarty and Kay JJ said:

“The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children. There can be little doubt that there has been a perceptible change in the approach to the wishes and feelings of children not merely in custody cases in this Court but across the wider spectrum of society generally.” (FLC at 81,944; FamLR at 797)

41. Their Honours expressed approval of the statement by Hannon J in Doyle and Doyle (1992) FLC 92-286 at 79,128 where his Honour said:

“If the Court is satisfied that the wishes expressed by the child are soundly based and founded upon proper considerations as well thought through as the ability and state of maturity of the child will allow, it is appropriate to have regard to those wishes and to give such weight to them as may be proper in the circumstances.”

42. Their Honours continued at FLC 81,947; FamLR 800:

“As a matter of practical day-to-day experience, the problem in this area usually relates to the ascertainment of the wishes of the child and their interpretation and assessment in the face of conflicting evidence. Against that background the Court will attach varying degrees of weight to a child’s stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant. That is so because the legislation says so and also because long before specific legislation the practice of the Court in its parens patriae jurisdiction established that view.”

43. In the same case, Baker J made an extensive examination of the literature relating to the evaluation of children’s wishes. His Honour said at FLC 81,967-81,968; Fam LR 825:

“In my opinion, a child’s wishes must not only be considered, but must be shown to have been considered, in the reasons for judgment of the trial Judge. Further more, if the trial Judge decides to reject the wishes of a child, then clear and cogent reasons for such a rejection must be given particularly if, as in this case, the separate representative submits that the Court should give effect to such wishes.

The wishes of children should not be discounted simply because they are expressed by children. The weight to be given to the wishes of a child depends upon the individual child and an assessment of the validity of the wishes must be made by the trial Judge in each individual case. Such an exercise will require a consideration of both the child’s level of maturity and understanding.

I am not advocating that a trial Judge should automatically act upon the wishes of children, since the Court’s duty is to act in the best interests of the child. Rather, the goal is to take the wishes of children seriously by giving them careful, detailed consideration. To merely regard the wishes of children in a token manner, or to be dismissive of them, does not accord with the findings of psychologists as to the competence of children to express soundly based wishes and ignores the statutory requirement of s64(1)(b) of the Act [now s68F(2)(a) since the commencement of the Family Law Reform Act 1995].”

44. It is quite clear that their Honours were not saying that if the child’s wishes are valid then they are to be acted on by the Court and indeed this is not the law. What is required is that they be given appropriate and careful consideration and not simply treated as a factor in the determination of the child’s best interests without giving them further significance. When validly held reasons are departed from by the trial Judge, it is apparent that good reason should be shown for doing so.”

The Full Court in R and R: Children’s Wishes (2000) FLC ¶93-000 also considered the following argument:-

“51. Mr Knox was critical of her Honour for not taking this matter further with the witness. We are unable to accept that proposition. The evidence was given at the end of the husband’s Counsel’s cross-examination of Ms [G] and it would have been open to him to seek leave to ask supplementary questions had he wished to do so. He made no such application. Her Honour obviously regarded the issue as important, but in our view she was not under any obligation to pursue the matter further than she in fact did. She explored the issue and the counsellor expressed an unequivocal view concerning it, which her Honour eventually accepted, as she was entitled to do.

52. Her Honour indicated that in considering their wishes, she also took into account the good quality of care provided by the mother and the husband’s limited insight into the effect of his conduct on the children’s future balanced development. In taking these matters into consideration, her Honour was doing precisely what the law required her to do. In determining the weight to be given to children’s expressed wishes it must be borne in mind, as her Honour did, that while they are an important factor, they are not the only factor to be considered in determining their best interests.

53. Mr Knox was critical of the fact that her Honour did not attempt to determine that the wishes of the children were unsound, founded on improper considerations or influenced by others and cited the reasons for judgment of Baker J in H v W (at FLC 81,967-81,968; FamLR 825) in support of this proposition.

54. However, while those considerations will be relevant in many cases, they are by no means the only issues that a trial judge must consider when considering a child’s wishes. There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.

55. When Baker J referred to the “validity” of the child’s wishes in H v W we do not understand him to have confined such a consideration to factors such as whether the wishes of the child were unsound, founded on improper considerations or influenced by others. In our view, his Honour was there referring to the overall validity of such wishes against the particular factual background found by the trial Judge in the case in question. If his Honour meant anything different then we are unable to agree with him. However, when the relevant passage is read in context, we do not think that his Honour intended to confine the inquiry in the manner suggested by Mr Knox.”

It is thus clear that proper regard must be had to the expressed wishes of the children and that reasons for decision must reflect their significance. However, there is no presumption that decisions should accord with expressed wishes and it is not to be expected that lengthy reasons for departing from expressed wishes is the equivalent to showing “good reason” for doing so.
So far as the present case is concerned, it was submitted by the appellant that her Honour’s treatment of the children’s wishes were treated in a “cursory” manner. We reject that criticism. Her Honour’s judgment incorporated extracts from the Family Report concerning the children’s views together with arguments advanced on behalf of the husband during closing submissions about an alleged internal inconsistency within the Report (see above). Dessau J dealt with the argument in a manner she was entitled to adopt having regard to the fact that that Counsellor was not cross-examined. Her Honour’s reasons for making the order she did notwithstanding the children’s reluctance was clearly stated:-

“32. As to the children’s wishes, I accept the counsellor and the wife’s view that the children are reluctant at the prospect of change, but that they would cope happily if it were to occur. The only concern I have is that any normal reluctance could only be exacerbated if the issue remains a source of conflict between their parents …”

In our view, her Honour properly fulfilled the process of paying appropriate regard to the children’s wishes and explaining her reasons for departing from them.
The associated but distinct complaint concerns the internal inconsistency within the Family Report. In addition to the written submissions, the issue was the subject of argument before us. It is relevant to our re-exercise of discretion and the weight we should place upon the Report.
At one point, under the heading “INTERVIEW WITH THE CHILDREN”, the Report states:-

“Both boys expressed a reluctance to attend [School B]. It is unclear to me whether this reluctance is beyond the normal bounds that one would expect with that degree of change.”(emphasis added)

In the final paragraph of that section of the Report, it states:-

“Whilst both boys express some strong reluctance to change schools, it is unclear whether this reluctance would be less strong if both parents were agreeable to them changing to another school and if the boys felt that they had no major say in this decision.”(emphasis added)

The concluding paragraph of the Report states:-

“The views expressed by the children from my perspective were within normal limits and indicative of a fairly normal reluctance to change schools.”(emphasis added).

Our inspection of the Report indicates no apparent basis for the author’s shift from lack of clarity about whether the children’s reluctance was within normal bounds to a conclusion that their reluctance was indicative of “a fairly normal reluctance”.
While as we have said, it was open to her Honour to accept the Report “at face value, unchallenged and uncontradicted”, in re-exercising the discretion and with the benefit of more detailed submissions concerning the Report, we would not place much weight on the “normalcy” or otherwise of the children’s reluctance as described in the Report.
We think that in respect of the children’s wishes, the Report can be taken to indicate that the children said they did not wish to change schools and that they like their current school. [M] was said to have stated that his reasons were based on wanting to be able to continue to play with his brother, not being able to play in the [School B] band, and concern about having to explain his disability in a new school. [C]’s reasons were not similarly enumerated by the author of the Family Report.
In respect of the author’s professional assessment of her contact with the family, we think the Report lends weight to [C]’s adaptability to change but is silent as to [M]’s capacity.

THE RE-EXERCISE OF DISCRETION

In light of the foregoing, there are some matters of approach that it is desirable we make plain.
First, we approach the question of the wife’s application without any legal presumption that favours acceding to the proposal of the parent with whom the children are living. Section 65E of the Act requires a determination between the competing proposals on the basis that the best interests of the child are the paramount consideration. Although 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. While his comments were made in the context of a relocation dispute, it is apposite in this regard to refer again once again to the judgment of Kirby J in AMS v. AIF; AIF v. AMS. His Honour said at page 86,050 (para 193):-

“…it is important to remember that in Australia, whilst the welfare (or best interests) of the child are, by statute, the “paramount” consideration in the exercise of jurisdiction such as was invoked here, they are not the sole consideration. In this respect, the position in this country is different from that in Canada [f/n Divorce Act, RSC 1985 c 3 (2nd Supp), s 16(8).]. It more closely conforms to the language of the Convention on the Rights of the Child [f/n Convention on the Rights of the Child, Art 3.1: “In all actions concerning children, whether undertaken by … courts of law … the best interests of the child shall be a primary consideration.”.] Statutory instructions as to the paramountcy that is to be accorded to the child’s welfare or best interests are to be understood as they apply to a child living in Australian society, normally in relationship with both parents and other members of its family. Whilst the legislation considered in this case, and later statutory reforms, give the highest priority to the child’s welfare and best interests, that consideration does not expel every other relevant interest from receiving its due weight. In part, this is because (as the English courts recognised long ago) the enjoyment by parents of their freedoms necessarily impinges on the happiness of the child [f/n Poel v Poel [1970] 1 WLR 1469; P v P [1970] 3 All ER 659.]. But, in part, it is also because legislation such as FLA 1975 [Family Law Act 1975 (Cth) and FCA 1975 [Family Court Act 1975 (WA) is enacted to take effect within a society of a particular character whose members enjoy a high measure of personal freedom, diminished only to the extent that the law obliges.”

Secondly, in accordance with B and B: Family Law Reform Act 1995 (1997) FLC ¶92‑755 at 84,219-20, the object and principles in s60B are to be taken into account in the course of considering the relevant matters in s68F(2) which provide a check list to meeting the essential enquiry required by s65E. The importance of the object and principles in s60B varies from case to case and we consider they are of little decision-making assistance in the present dispute.
Thirdly, it is appropriate to identify the s68F(2) matters that we think hold significance in the present specific issues application. They are:-

“a) any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s wishes;
(b) the nature of the relationship of the child with each of the child’s parents and with other persons;
(c) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person, with whom he or she has been living;

…
(h) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
…
(l) any other fact or circumstance that the court thinks is relevant.”

Fourthly, we reiterate our agreement with the approach to children’s wishes taken by the Full Court in R and R: Children’s Wishes extracted above.
Finally, we would note that in the present case there was comparatively faint attention to the option of the children changing to the [School A] campus … which is a lesser distance from where the children live. On the basis of the arguments during the appeal, and having regard to the change in circumstance which would be entailed, we approach the exercise of our discretion on the basis that the decision is between the competing proposals of the parties – either maintenance of the status quo or acceding to the wife’s application.
From this footing, we turn to the evidence in this case as to the competing proposals of the parties, using the five relevant paragraphs of s68F(2) as a framework.

Paragraph (a) – The Children’s Wishes

The stated wishes of the children favour rejection of the wife’s proposal to change schools. The children’s reluctance to change schools is acknowledged by the wife and the Family Report. The wife characterises their reluctance as “normal apprehension”, “a short term issue” which would resolve if both parents supported the change (AB 45). The Family Report is, for reasons we have set out previously, not entirely clear in the normalcy or otherwise of the children’s apprehension and the wife’s expectation. The Report suggests that [C] is adaptable to such a change. The evidence of Dr [S], a medical practitioner in general practice who has treated [M] since shortly after the boy’s birth sees no evidence of clinical anxiety associated with his disability and states that [M] is coping “exceptionally well” (AB 99). Although the husband’s affidavit evidence questioned Dr [S]’s capacity to make such an assessment when he had not seen [M]’s response to the curiosity of other children, Dr [S] was not required for cross-examination.
The husband also acknowledges the children’s reluctance. He was concerned to obtain the independent Family Report as to the wishes of the boys. He does not accept that their reluctance is transient. He considers that their wish to remain at [School A] should have credence but accepted under cross-examination that their wishes should not necessarily determine the dispute (AB 198). His unchallenged affidavit evidence referred to [M] being upset about the proposal to change schools and anxious about having to explain his disability (AB 54-55). This is consistent with the Family Report. The husband’s evidence stated that [C] had expressed the wish not to change schools, again consistent with the reluctance identified in the Family Report, but did not relate specific reasons expressed by the boy.

Paragraph (b) – The Nature of the Children’s Relationships

Any anxiety which the children may experience as a result of changing peer groups by changing schools is a relevant matter here. We note in this regard, the husband’s view that [M]’s disability will present difficulties for him and the observation in the Family Report that [M] would not be able to play with [C] at school in the proposed new setting. Again these are relevant, but not determinative factors.
A further matter which forms part of the husband’s case is that a broader cross-section of children attend [School A] as opposed to [School B]. Without doubting that this may be the husband’s view, or commenting upon the relevance or otherwise of a school’s population features, the husband’s view is an assertion which a Court cannot take into account and which we put aside for the purposes of the present dispute.

During the hearing of the appeal, counsel for the respondent pointed to an important concession by the husband which is convenient to record under this heading:-

“[Counsel for the Wife]: Now is there anyone in this room that knows the boys better than the wife? — No.
She would be more plugged in, more in tune, with them as they develop? — Than anybody in the room?
Yes.? —Yes, that would have to be a fair comment.”(AB 194).

Such knowledge is readily understandable in the context of the arrangements in place between the parties for the care of their children, arrangements which take account of the husband’s other commitments. The wife’s acknowledged day to day intimacy with the children does carry a particular weight in this case in making an assessment of how the children’s statements of wishes are to be construed.

Paragraph (c) – The Likely Effect of Any Change in the Children’s Circumstances

In addition to the children’s apprehensions about changing schools, there are the parents’ views about the effect of change which must be taken into account.
The husband’s concerns for [C] were principally directed towards his shyness and lack of self-confidence, and in respect of [M], in seeking to avoid him having to explain his disability to a new group of children.
The wife agreed under cross-examination with the basis for the husband’s concerns but further said that in relation to [M], she would be endeavouring to make the transition as smooth as possible in collaboration with the staff from [School B].
A core concern in respect of [M] is her view that he is an outstanding student in a small group and requires more challenges in his academic life, a need that she believes that [School B] will meet. So far as [C] is concerned, the wife considers that his self-esteem and confidence will be enhanced through achievements in sport, that [School B] has more to offer in this regard, and that changing schools at Year 5 level will be easier than if he is part of the more general intake that occurs at Year 7 level.
So far as evidence from witnesses other than parties is concerned, there was the evidence of Dr. [S] and the Family Report discussed previously which lend weight to the wife’s assessment of the children’s adaptability, an assessment which we view in light of the husband’s acknowledgement of the wife’s degree of knowledge of the children.
Finally under this paragraph, it is relevant to note that it is not certain that the children will remain at the same campus for their future schooling. Under present arrangements, students in years 10,11 and 12 are educated on … one campus … and at present, the … campus [the boys currently attend] extends to year 8. Of this matter, the husband said it was “undecided” whether additional years would be added. The upshot of this evidence for the wife’s case, is that the children may be educated at different locations even if they remain at [School A]. Furthermore, the husband conceded that it was inevitable that the children would meet new children if they were to continue at the same school, although he held the view that this would be less stressful for the children, particularly [M].

Paragraph (h) – The Parents’ Attitudes to Parenthood and the Children

In our view, two matters are of relevance here to the differing proposals of the parties.
The first relates to the consequences of one parent carrying the predominant burden of meeting the practicalities that flow from their children’s schooling. There is no doubt that the parties are seeking to advance the interests of the children in the way each considers will nurture the children’s strengths and cater to their needs. We think this is so notwithstanding the suggestion in the Family Report that additional agendas between the parties may be at work.
In this case, the practical day to day demands associated with school fall upon the wife and she gave evidence as to the difficulties and stresses that arise from associated travel. The travel time from home to [School A] is approximately 25 minutes. The roundtrip of approximately 50 minutes is undertaken at least twice a day on each school day. The boys also have out of school hours activities, not necessarily finishing at the same time, which do not make it practicable to return home with one boy and then go back to the school for the child whose activities finish later. There is also travel on weekend days arising in respect of extra-curricular activities.
While it has been challenged as speculative, the wife also deposed that living close to school would facilitate out of hours play for the children. Unchallenged however, is that the wife has deposed to wishing to return to the paid workforce. The husband did, however, contend that the quantum of the parties’ financial settlement and the child support paid by the husband means that he views such a wish as a matter of choice which, as we understand it, should accommodate the children’s schooling and associated travel.
Although the husband accepted that travel is a consideration for the issue at hand, he would not concede that the wife undertook an onerous or significant amount of travel. This lack of concession appears to us to be at odds with the view expressed in earlier proceedings by the husband to the effect that his one hour travel commitment to take contact involved a trip that he described as “significant”. In any event, it seems undisputed that the travel time to [School B] would be approximately 5 minutes.
The second point we think relevant to this category of matters to be considered is the undisputed fact that the wife had thoroughly researched schools in the [the locality] area. Her selection of [School B] was based on those inquiries. The husband conceded that he had not made similar inquiries of [School B] and in his affidavit sworn 27 August 1999 said that his knowledge of the school derived from living in the [locality] for 40 years. Under cross-examination, he further explained that his view of the school was also based on observing the people who had gone there and speaking “to different people about their thoughts of [School B].”.

Paragraph (l) – Any Other Relevant Fact or Circumstance

In weighing up the parties’ proposals, there is one matter which we would mention under this category – the prior agreement as to schooling. The fact that the parties agreed to the children commencing at [School A] is common ground.
That agreement was, however, made within a context of circumstances and circumstances have changed in that the residence parent and the children have moved to a new location. To the extent that the principle set out in s60B(2)(d) – “parents should agree about the future parenting of their children” – has been argued to be applicable in this case, it is but one factor to be weighed with all relevant factors. The weight to be given to such a prior agreement must be affected by the fact that there has been a change in where the children live, their proximity to the schools under consideration their proximity to the schools under consideration, and the daily practical demands associated with school.

CONCLUSION

Our ultimate view, having regard to the evaluation of the schooling proposals on these matters is that the wife should be permitted to enrol the children at [School B]. Like the trial Judge, our view is not an assessment of the relevant merits of the schools preferred by the parties. In the exercise of our discretion, we think that the wife’s acknowledged greater understanding of the children tempers concerns about the consequences of change upon these children and bolsters the weight we should place upon her assessment of the benefits to the children from a change in schools.
In addition, we think there is considerable substance to arguments on her behalf that weight should be given to the travel commitments associated with the school that the children attend. Where a decision must be made by a Court in circumstances where parents are unable to agree as between two schools which are prima facie very satisfactory, we see advantages to the children attending a school which is closer to the children’s residence. In terms of the practical fulfillment of parenting obligations, it is desirable to enhance the ease with which a parent who assumes the bulk of day to responsibility can meet the multiple associated demands of children’s dependence on a caregiver for transport, participation and security. We do not consider that the fact of a prior agreement between the parties as to [School A] carries much weight in the changed circumstances of the family.
While we have indicated that her Honour was wrong in taking guidance from Newbery’s case, we do think that in considering the effects of any decision as to schooling and like matters, it is proper to consider evidence as to any greater effect upon a resident as distinct from a non-resident parent that a particular decision will have. This is because it is the resident parent who will in most cases have greater day to day responsibilities in respect of the child and it is, we think, in a child’s best interests that the resident parent should not be subject to more irksome and unnecessary additional restraints than such commitments already entail. The matters advanced by the wife in this regard weigh in favour of the wife’s choice of school.
We think the sentiments expressed by the Full Court in the following passage from B and B: Family Law Reform Act 1995 (1997) FLC ¶92‑755 are apposite (and consistent with the approach of Kirby J as set out in para 65 above):-

“9.66 The interests of the children may be affected by proposed relocation in two broad ways. Firstly, the relocation may be of benefit not only to the parent but also to the children in a direct way. That is, the lifestyle of that family unit and those children may be enhanced by the move. Secondly, in some cases the inability of the residence parent to relocate will impose significant pressures upon that parent and diminish his or her capacity to cope and so diminish the quality of the lifestyle in that home. A very important aspect of a child’s best interests is to live in a happy family environment. That may be significantly impacted upon where the residence parent is required to live in circumstances which diminish his or her future life either in an economic or a social sense, perhaps in a long-term way. If that had an adverse impact upon the children’s best interests, that may be an important matter to consider. Similarly, the prospect that the lifestyle of members of that family will be enhanced by the move is a positive factor to be considered as part of an assessment of the children’s best interests.

9.67 Ordinary common experience indicates that long-term unhappiness by a residence parent is likely to impinge in a negative way upon the happiness and therefore the best interests of children who are part of that household. Similarly, where the parent is able to live a more fulfilling life this may reflect in a positive way on the children. However, the ultimate determinant is the best interests of the children; the wishes and desires of the parent per se give way to that.”

It should not be forgotten that such considerations are not confined to the convenience of the residential caregiver. There are obvious benefits to the best interests of the children – the Court’s paramount but not sole consideration – in them being able to readily participate in school activities outside school hours without the necessity for extensive travel.
While we have carefully considered the expressed wishes of the children in this case, we think that these “wishes” go to a much less significant aspect of their best interests than the more usual issue as to which parent it is with whom the children should live. In the nature of things, as between parents who are able to agree, it is not uncommon for them to take a decision in favour of a change of schooling for reasons of convenience of travel and like matters. Further, such decisions may well run contrary to the wishes of the child or children concerned and yet may be made for entirely proper reasons. Unless a child is actively unhappy in a particular school environment, it is not at all unusual for them to wish to remain at their existing school. This is entirely understandable and while a relevant factor, should not in our view dictate the outcome when a Court is called upon to determine which of the competing proposals is in the best interests of the child or children concerned.

ORDERS

We have found that the appellant had a legitimate complaint as to her Honour’s approach to the application in that her Honour made an error of law. However, we have ultimately reached the view that in exercising the discretion afresh, we would make the same order as her Honour did and accordingly, we would not disturb the order made by her Honour. As a consequence, the formal order of the Court was to dismiss the appeal against her Honour’s order.

COSTS

98. Following the hearing, the parties handed-up a joint request that the Court consider written submissions. We accede to that request and shall make the following further directions as to the timetable for filing such submissions:

“1. That within 14 days of the date of the publication of these reasons, the respondent wife shall file and serve any written submissions in relation to costs.

2. That within 14 days thereafter, the appellant shall file and serve any written submissions in relation to costs.”

I certify that the previous 98 numbered paragraphs are a true copy of
the reasons for judgment delivered by this Honourable Full Court.

Danny Sandor
Senior Legal Associate to the Chief Justice
19 May 2000