FATHER SEEKS COURT’S APPROVAL TO TRANSFER HIS AUTISTIC CHILD TO ANOTHER SCHOOL
Theobold & Searby [2020] FCCA 2727 (2 October 2020)
This is an application made by the Father seeking to transfer her autistic child to another school while the mother wishes for the child to remain in her current school.
Facts: This is an application made by the Father. He seeks, primarily, an order that the child, X attend H School or, if not accepted there, J School, for her secondary education commencing in Year 7 in 2021.
The Father says in his evidence that he has no issues with X being enrolled in B School. He says her behaviour is improving, and that her reports are on par with earlier reports. His submission, however, is that he cannot commit to the enrolment given his current financial position. It is for that reason that he seeks orders that X be enrolled at either H School or J School.
X has attended B School since Grade 1. She suffers from Autism Spectrum Disorder, Selective Mutism and Executive Functioning Disorder. She is easily overwhelmed, which can cause her distress. At B School, she has had the benefit of a teacher’s aide who has worked with her one-on-one since grade 1.
The Mother seeks orders not only that X continue to attend B School, but that the Father pay all the school fees for X for 2021 and 2022. Thereafter, the Mother proposes that the Father pay 75% of the school fees, and she pay 25% of the fees. While that is her primary submission, she has indicated a preparedness to pay as much as 50% of the school fees for X.
Issue: Should the child be transferred to another school?
Law:
- Family Law Act 1975 ss.60CC- How the court determines what is in a child’s best interest
Analysis:
The court considers the best interests of X. As it noted earlier, the unchallenged evidence is that X is doing well at B School. She has settled in well. She has the benefit of a teacher’s aide on a one-on-one basis. Her behaviour has improved and her performance overall is steady. While no direct evidence was placed before me in respect of this, the court would expect that any change to her circumstances would be disruptive to X. Such disruption may include disruption to her academic progress, confidence and social development.
The father has the capacity to meet the whole of the school fees for X on the evidence before me. His capacity might well be greater on the basis of the undisclosed NDIS support that he receives. The Mother clearly does not have the capacity to pay the whole of the fees for B School. Her submissions amount to little more than an assertion that she can pay, at most, 50% of the B School fees with the assistance of her mother.
In the court’s view, this is a case where, given the Father’s income, he should pay the substantial part of the fees. Given the Mother’s wish for X to remain at B School, however, she should also contribute. In my view, the Mother’s proposal that the Father contribute 75% of the fees and that she contributes 25% of the fees is appropriate. Such an arrangement should commence as proposed by the Mother – in 2023. Until that time, the Father should continue to pay all school fees and costs. He has the capacity to do so, the Mother does not. Put simply, the evidence does not disclose the Father has an incapacity to pay.
Conclusion: Court orders that child X continues to be enrolled in and attend B School. The Applicant Father be responsible for payment of all B School fees and costs for the years 2021 and 2022.
