The relevant authorities set out some of the applicable principles as follows:
Section 60CA of the Act mandates that the best interests of a child are the paramount consideration.
The objects of the Act are identified in s 60B, which sets out not only the objects of the Act but the principles to be applied.
The best interests of a child are determined by an examination of the factors as set out in s 60CC of the Act. Section 60CC(2) sets out the primary considerations in determining what is in the child’s best interests.
In applying these considerations, the Court gives greater weight to the consideration set out in s 60CC(2)(b).
Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests.
In Mulvany & Lane [2009] FamCAFC 76; (2009) FLC 93-404, May and Thackray JJ stated:
It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
It needs also to be remembered that the importance of each S 60CC factor will vary from case to case..
In Bilz & Breugelman [2013] FamCA 578, Austin J in an examination of the relevant authorities set out some of the applicable principles as follows:
Schooling disputes are not resolved by application of a “blanket presumption” or preference for the views held by the residential parent. The Court is required to apply the objects and principles of Part VII of the Act and to consider the statutory criteria in forming conclusions about the child’s best interests.
In particular, the process of evaluation should not entail an assessment of the relative merits of the schools preferred by the parties, at least in circumstances where the competing schools are prima facie satisfactory. Ordinarily, it will be in the child’s best interests to attend a school close to his or her residence, and further, it is proper to consider the evidence as to any greater effect of the decision upon the resident rather than non-resident parent, but that does not mean the convenience of the non-resident parent is ignored.
While the views of the child are relevant to the inquiry, as s 60CC(3)(a) of the Act now stipulates, those views are usually not determinative. That is because, unless a child is actively unhappy in a particular school environment, it is not at all unusual for the child to express a desire to remain at his or her existing school.
There is conflict in the authorities about whether any prior agreement between the parties concerning the child’s schooling is influential. There also seems a difference of opinion about the need to refer specifically to each of the factors enumerated in s 60CC or whether it is permissible to simply analyse the evidence discursively with those factors in mind
(a) Any views 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 views.
(b) The nature of the child’s relationship with each of the parents and other persons.
(c) Extent to which each of the parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; spend time with the child; and communicate with the child.
(ca) Extent to which each of the parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
(d) Likely effects of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f) The capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her culture; and the likely impact any proposed parenting order under this Part will have on that right.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
(j) Any family violence involving the child or a member of the child’s family.
(k) Any relevant inferences that can be drawn from a family violence order, if it applies
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
(m) Any other fact or circumstance that the court thinks is relevant.
The Court must consider all of the relevant s 60CC matters as well as the affidavit evidence of the parties and their submissions when making a decision on the school the child should attend.
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