Changing a child's school - bullying

Under the Family Law Act 1975 the Family Law Courts are empowered to make Orders in relation to "any aspect of the care, welfare and development of the child or any aspect of parental responsibility for the child" - decisions about the so-called 'specific issues' that come up in day-to-day parenting, but that after separation can be difficult to agree upon.

 

One example of 'specific issues' is which school a child is to attend.

 

The Court is asked to consider which of the schools selected by the parents is best for the child - usually based on the child's educational or extracurricular needs and the practicalities such as distance between parents homes and public transport options.

 

Most often the decision that the Court has to make is at the time a child is to commence school (primary or secondary) but sometimes it is the circumstances in which a child can change schools.

 

In the recent decision of Bardot & Benjamin [2013] the Court was asked to determine whether a child in Year 6 could change schools - due to bullying.

 

In this case the mother sought Orders to change the child's school from "W" to "A". The mother argued that the child was experiencing bullying at "W" school (particularly in the form of exclusion) and such bullying was systematic and impacting on the child’s physical and/or psychological welfare. The mother submitted that "W" School had failed to address these issues and that "A" School's philosophy, culture, amenities, opportunities and comprehensive bullying strategies made it the better choice.

 

The father opposed a change in schools and argued that the child had inherent vulnerabilities to bullying and that the "W" school had adequately dealt with the bullying and that "W" School was working with the child in relation to her vulnerabilities and was in the best position to mitigate them in the future. The father also argued that "A" School presented some practical difficulties for the child in terms of travel time.  

 

In considering the matter the Court of course went through the criteria contained in section 60CC of the Family Law Act and gave weight to the following:

• Child's wishes: the child expressed a wish "over a prolonged period" to change schools - while due to the child's age she would be unlikely to be able to properly evaluate the respective merits of different school programs and although the mother's influence could be detected the child was a "comparatively intelligent and articulate child" capable of considering her own views in an objective manner.
• Likely effect of any change: there was no evidence that a change in school would have a negative impact on the child's studies, indeed if the change of schools was to help alleviate some of the child’s environmental distress then academic performance should not suffer. 
• Practical difficulties: distance was not a serious issue or impracticality - children often travel distances of more than an hour each day to attend school in the area. Additionally, and as conceded by the father the best interests of the child's overall emotional well being takes priority over considerations of distance.
• Other factors: both schools included comprehensive definitions of bullying and incorporated anti-bullying material in their respective student planners, however, the "W" School's approach appeared to be more aspirational and stated in broad policy terms while the "A" School had a more specific policy which designates specific roles to those charged with investigating and resolving bullying complaints. Perhaps the most persuasive difference was that the "A" School's stated aim of promoting a "culture characterised by caring relationships and enhanced self-esteem" was better tailored to the child's needs.
 

The Court concluded that the child had experienced bullying at "W" School and that while the child was developing some skills and techniques for coping with bullying the potential risk to the child's future mental health of not changing schools was too great. As "A" School had a more organised and sensitive response to bullying, it would be in the child's best interest to change schools. 

 



Child support for adult children

In today's competitive jobs climate - where higher education and vocational training are nigh on compulsory - it is not uncommon for many 'children'* to continue living in their parents homes long after their 18th birthday.

 

But when the parents are separated there are added considerations - such as who's responsibility is it to contribute for the child's costs of living and how?

 

Child support, under an administrative assessment by Child Support Australia (CSA), generally ceases to be payable when the child turns 18. Which could mean that the parent in whose house the child is living is left with the principle burden of funding the child - unless the other parent voluntarily contributed to those costs. And it can be difficult to rely on volunteer contributions - either because they are not regular contributions, or they have to be negotiated each time, or they just are not enough.

 

However, there are a number of options available.

 

The first is an extension of a child support assessment past 18 years of age - a parent entitled to child support may apply for an extension of the child support assessment until the last day of the school year if this day falls within 365 days of the child's 18th birthday.* The Child Support Registrar must be satisfied that the child is likely to be in full time secondary school (including school, TAFE or other secondary education) on their 18th birthday. The effect of an extension is that child support continues to be payable past the child's 18th birthday until the end of the school year or when the child leaves school - whichever is the earlier.

 

The second option is for the extension of a child support agreement - where both parents agree that a child support agreement should continue, or where the agreement states that it extends beyond the child's 18th birthday, the parent receiving child support can apply for an extension of the underlying assessment for a child support beyond the child's 18th birthday.

 

The third is for an application to be made to the Family Law Courts for an Order for the maintenance of an adult child. For such an application it is necessary to satisfy the Court that maintenance is necessary to enable the child to complete their education. Unlike the first option this option allows for payments to be made for a child to complete tertiary (such as university) education.

 

*It is important to note that there are significant Family Tax Benefit implications if a parent fails to apply for an extension to a child support assessment where they are so entitled.

 

Special contributions

Every now and then a family law case makes it to the news headlines. Most often these cases involve parenting matters – such as the ‘Italian case’ which was sensationally splashed across the front pages of the papers last year. But, as indicated in my post last week on the ‘Pole Dancer case’ sometimes the complexities of property division matters will garner some attention as well.

Late last week an appeal decision from the Family Court did just that – the case of Kane & Kane [2013] FamCAFC 205.

This case was an appeal from a decision of a Judge who found that the husband’s contributions to the parties’ superannuation fund were substantially greater than that of the wife due to his acumen and successful investment and therefore the husband was entitled to a greater division of the superannuation fund upon separation.

The parties began living together in 1980 and separated in June 2009 – a relationship of almost 30 years. There were four children of the relationship – the youngest was 18 at the time of the hearing.

In 1993 the parties established a company (known as “K Company in the proceedings) which was involved in a number of successful businesses. The parties sold the assets of the K Company in 2008 and received net proceeds of $1,650,000. They then established a family superannuation fund (known as “R Investments”) – and from the $1,650,000 proceeds of sale of K Company the parties paid $979,400 into R Investments.

After the establishment of R Investments, the husband decided, after researching, to invest a large proportion of the superannuation funds in purchasing shares in a company (known as Company 1). The wife did not agree but despite this the husband used $539,500 from R Investments to purchase the shares in Company 1. At the hearing the shares were worth $1,850,000. 

At the hearing the parties agreed that the contributions they each made during the marriage were equal save for the contributions to R Investments.

The Judge found that the parties had contributed equally to the funds that were used to purchase the shares in Company 1; the increase in value of the parties shares in Company 1 was beyond ordinary market forces; the husband’s investment and subsequent increase in the value of the parties superannuation fund was a “special contribution” on behalf of the husband; and the husband was therefore entitled to a higher percentage of the parties assets. The Judge ordered that the superannuation fund, R Investments, be divided two-thirds to the husband and one-third to the wife – meaning that the husband received around $1,000,000 more than the wife. All of the other assets, worth about $800,000, were divided equally.

The wife appealed that decision – and on 18 December 2013 won the appeal.

In the judgement of the Full Court of the Family Court, Justice May and Justice Johnston said:

“We accept that his Honour was entitled, as part of the overall process, to conclude that the husband’s contributions to the superannuation fund were greater than those of the wife by reason of his diligence, effort and judgment in the purchase of the shares.

We would pause here to observe the obvious, that had this investment decision caused the loss of a substantial part of the parties’ superannuation funds it is unlikely that the husband would have been claiming such a contribution. It is also notable that the husband did not have any professional qualifications nor did he have any special knowledge of the business in which he had invested although it must be acknowledged, the husband had been a successful business man. The husband took a calculated risk with the parties’ money, which fortunately proved correct.”

But of wider interest is that the Full Court of the Family Court concluded, as stated by Deputy Chief Justice Faulks that:

“To the extent that the trial judge believed himself to be obliged by authority to determine the division of the property of the parties by reference to some doctrine acknowledging 'special skills' in my opinion ... he was mistaken. The act does not require and in my opinion the authorities do not mandate, any such doctrine and if judgments of the Full Court of this court might be thought to have espoused such a principle in my opinion, they should no longer be regarded as binding.”

The Kane & Kane case is thus said to have significantly challenged the “special contribution” doctrine which has previously seen one party claim a significant portion of the assets if they could show their special skill contributed to the acquisition or maintenance of the asset/s.

This “special contribution” doctrine has been in and around Family Law cases for the past 10-20 years and in some cases recognition of a contribution of a special or exceptional nature has resulted in the husband (the one who made the special contribution) receiving significantly more of the asset pool – sometimes +75%.

 

The Kane & Kane decision is said to mean that more cases are going to be more equal – if the assets were all acquired, maintained or built up during the relationship than the contributions are more likely to be equal. But it is important to note that the  Kane & Kane decision does not mean that at some time there wont be a case where the one party has, through a unique skill, contributed more than the other – just that Judges are no longer obliged to follow any “special contribution doctrine” and each case has to be examined on its own facts.

New Year - history repeating

The New Year seems as good a time as any to reflect on that which makes the law at the same time marvellous and wearisome: the appeal process, aka history repeating.

 

 

Back in March 2013 my first post on this blog was about the complicated history of 'pre-nups' in Australia - and featured a reference to the 'pole dancer case'. I said:

"In this case the husband met the wife at a Sydney club around the time he separated from his first wife in the late 90s and they married some time later in 2005. They entered into an Agreement before marrying which provided for the wife to receive $3.25 million if their marriage broke down in four years. It ended within two. The husband, who apparently has a net worth of around $16 million, claims that the wife acted fraudulently when she said she wanted to spend the rest of her life with him and have children with him. However, he’s also relying on an allegation that his solicitor did not give him the necessary independent legal advice. In 2011 the Family Court determined that the Agreement stood. The husband is currently appealing that decision."

That we live in a country with a clear, well-practiced appeal process is something to celebrate. That it is not just the Parliament that can make the laws of this land, but that we have a judiciary that creates case law which reviews, modifies or even overturns Parliaments legislation, is a cornerstone of our democracy. That it can take 1-2 years for an appeal to be heard has been acknowledged as trying. That, Parliament and the Courts can drastically redirect the laws of this land in widely different directions in turn can test all concerned in the legal community.

 

In late 2013 the Husband's appeal was determined by the Full Court of the Family Court, and he was not successfull.
 

You might have noticed, in amongst the celebration of the Ashes white-wash, a news article headed 'Husband in bid to stop $3.2 million pre-nup'. The SHM journalist, Louise Hall, reported that the Husband is now applying to the High Court, the final Court of Appeal, for special leave to appeal the decision of the Family Court.

 

The Husband's application for leave is based on the argument that the 2009 amendments to the Family Law Act ( - in 2009 the Federal government responded to a 2008 Court decision about so called 'pre-nup agreements' by relaxing the requirements in the Family Law Act slightly in an apparent attempt to ensure that people could still enter into such Agreements even if there were inadvertent or minor technical errors - ) are inconsistance and uncertain.

 

In the SMH article, Louise Hall quotes the Husband's junior counsel, Bill Washington who says: ''Sadly, in trying to solve the problem in the prenup section of the Family Law Act, the federal government has made an appalling mess of it".

 

The Husband's application for special leave is likely to be heard in the first half of 2014. We in the legal community, including the Federal Attorny General, will have to wait a little longer to see if there will be another about-turn in this area of family law.