Booth v Department of Education Queensland [2000] QSC 186

State Reporting 3ot1G 0 tc 0o/ I l56 Bureau TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION WHITE J No 740 of 2000 WILLIAM BOOTH and REVlSEO COPfES fSSUED State Reporting Bureau Date 'f I')-- /CV-,C Applicant DEPARTMENT OF EDUCATION QUEENSLAND Respondent BRISBANE .. DATE 02/02/2000 JUDGMENT 1 lilt n .... ,._ The l.:1w C1111r;s_ cl'lll"l'l' Stn·t'I.. llrisli:111c. 0 . .j()()(} Td,•11l111r11•'. rD7\ J2..17 -I i/'ill F-,v· 1117\ 1 '.17 ~~ i' -- 1 of 8 -- 02022000 Tl/BP17 M/T 6723/2000 (White J) HER HONOUR: By originating application filed on 25 January 2000, Mr William Booth seeks to have an assessment of his daughter Francesca's ability to continue to Grade 3 and to have Rule LL-08 (4.8) of the Department of Education Manual "overturned" and the instructions of the non-residential parent, who is Mr Booth, followed as decisions of the residential parent have not been in the child's best interests. In effect I think Mr Booth is seeking declaratory relief as to the validity of Rule 4.8. Mr Booth appears on his own behalf. No point is taken that the respondent should be the State of Queensland. Mr Booth is Francesca's father. She was born on 24 August 1993. She is presently enrolled at Ironsides State Primary School at St Lucia conducted by the Education Department, where she has been a pupil since 3 February 1998. The child's mother, Ms Rong Du, and Mr Booth do not live 10 1 20 iO 30 together and the child resides with her mother. Mr Booth 20 40 lives in northern New South Wales. On 17 December 1999, Mr Booth and Ms Du agreed on a parenting plan which was approved by the Family Court in Brisbane in respect of Francesca. There is no sealed copy 3C of the order presently available but I accept that the handwritten document on Ms Du's solicitor's letterhead, Exhibit A to Mr Booth's affidavit, reflects the terms of the agreement which was approved by the Court. 2 JUDGMENT 50 60 -- 2 of 8 -- 02022000 Tl/BP17 M/T 6723/2000 (White J) Number 3 of that order relevantly provides: "That both parties share responsibility for the long term care, welfare and development of the child." It appears that for some time, Mr Booth has been concerned at the level of and quality of education that his daughter has been receiving at the respondent's school and, inter alia, has requested an assessment of her fitness to be promoted to Year 3. He maintains that Ms Du falsified the child's date of birth by one year in order to gain entry to the school. He has observed the child at school and is of the view that she does not have presently the maturity to advance to what he sees as an important year in her education. Mr Booth says that Ms Du has resisted any assessment of Francesca. The child has in fact been assessed in the recent past as fit to progress, but in the light of Mr Booth's continuing representations, the Department has arranged for her to be assessed again with the consent of Ms Du and that is to take place this week at the school. Mr Booth says that Ms Du did not collect the child from him on 30 January this year, as was their arrangement, in order to present her to school on 31 January after the child had been with her father for school holiday access. Mr Booth says that he has been unable to contact Ms Du as she has left her old address. He has retained the child, 3 JUDGMENT 10 !O 30 40 .}0 50 60 -- 3 of 8 -- 02022000 Tl/BP17 M/T 6723/2000 (White J) who today is with his mother in New South Wales. Until Mr Booth presents Francesca at school, at least under the present arrangement, no assessment can occur. However in so far as the respondent is able to do so, Mr Booth's first request has been satisfied. 10 The second order sought is somewhat more complex. The Education Department Manual, the extract of which I have, is described as "Family Law Matters Affecting State Educational Institutions." It recognises the fundamental principle of Family Law that the best interests of the child are paramount. The procedures to be followed by Education Department personnel are set out in the manual. Procedures prior to June 1996 are set out and provide, relevantly to Mr Booth's application, as follows: 11 4.7 The Anti-Discrimination Act 1991 prohibits discrimination on the basis of a person's parental status. A principal should not deny a person the right to take part in any State educational institution activities such as fetes, concerts, sports events, speech nights, volunteer work, et cetera, because of his or her parental status. 4.8. While both custodial and non-custodial guardians can participate in their child's education, occasions might arise where they are unable to agree on matters relating to their child's education. In such cases either a Court order must be produced citing the rights of the parents in relation to the issue, or the principal should take instruction from the custodial parent provided such instruction relates to the student's educational development." As the manual points out the Family Law Act was changed and certain amendments from 11 June 1996 were introduced which dealt with the issues which were considered previously in 4 JUDGMENT 20 30 .~. ,,.,, .;'.l: 40 50 60 -- 4 of 8 -- 02022000 T2/MT1 M/T 6723/2000 (White J) respect of such things as custody, guardianship and access. The guidelines for the approach of Education Department personnel is set out in 4.9 through to 4.18: "4.9 The Family Law Act has been changed to delete terms 10 such as custody, guardianship and access and to place greater responsibility on parents for the shared upbringing of their children. 4.10 Both parents are to be involved in their children's upbringing, unless this responsibility is altered by the court or by agreement between the parents. 4.11 Parents are expected to enter into written parenting plans detailing their shared responsibilities and any individual responsibilities. These plans should address residential arrangements, contact arrangements and other specific issues. Parenting plans may be registered with a court and become legally binding on the parents. 4.12 If parents are unable to agree on arrangements for their children, a court may issue a parenting order which may cover residence (where the child will live), contact (who the child will see or visit) or specific issues (eg education, health, religion). 4.13 Unless otherwise ordered by the court or agreed between the parents, one parent is not to be solely responsible for making decisions about his or her children's future. I 20 10 30 4. 14 A parenting order arranging the details about the ,,., children's residence is different from a custody order 40 made before 11 June 1996. Unless it is so stated, an order for residence does not alter parents' shared responsibility for their children. 4.15 A parenting order covering specific issues may address particular matters such as schooling or the name to be used by the children. 4.16 In the absence of orders to the contrary, both parents :u can see teachers to discuss their children's 50 educational progress and to receive copies of school reports about their children, and any other information which schools generally provide to parents. 4.17 Principals must not restrict the responsibilities of one parent at the request of the other parent unless legal documentation, usually a Family Court order covering specific issues, is produced to support the restriction. 5 JUDGMENT 60 -- 5 of 8 -- 02022000 T2/MT1 M/T 6723/2000 (White J) 4.18 When both parents retain parental responsibility but they are unable to agree on matters relating to their children's education or general welfare, the principal may suggest they attend family and child counselling to resolve the dispute away from school." Accordingly, it is those procedures which should guide the respondent's personnel in its dealings with Francesca and her parents. On 19 January 2000, Ms Debbie Best, Executive Director of Schools (Metropolitan) of Education Queensland, wrote to Mr Booth in respect of his request to have Francesca assessed. In the course of the letter Ms Best wrote: "It is departmental policy that in cases where conflicting instructions are received from separated or divorced parents, the instructions of the residential parent will be taken (see LL-08 Family Law Matters Affecting Schools). A copy of this policy is attached for your reference." The new guidelines do not refer to the situation which 10 \ 20 10 30 exists when there is a conflict of instructions or direction 2c 40 or desires between the parents of a child within the purview of the Education Department as did the previous 4.8. Rule 4.18 simply suggests that the principal might suggest they attend counselling to resolve the dispute away from the school. Schools are in an awkward position. Decisions must be made and the guiding principle, where there is silence on the matter, should be what is in the best interest of the child so far as the school is able to reach a conclusion. 6 JUDGMENT 50 60 -- 6 of 8 -- 02022000 T2/MT1 M/T 6723/2000 (White J) Mr Booth clearly wants to be concerned in decisions about his child's education. He should seek to have this incorporated into an amended parenting plan which can be approved by the Family Court. It can then be given to the school which his daughter attends and the teachers and administrative staff at the school will then have a clearer understanding of what direction they should take. In the meantime with good will and cooperation Francesca's assessment can be carried out if she is to return to the Ironsides school or, indeed, any other school which is conducted by the respondent. It is not for Mr Booth himself to decide that what is best for his daughter is what he wants if Mrs Du has other views. The assistance of educational professionals and/or the Family Court may be necessary to resolve such disputes. It is essential that these disputes do not impact unduly upon the child's welfare. 10 iO 30 ~( 40 I can see no basis for making the declaration sought about the provision in the guidelines which the Education Department has set out for the assistance of its personnel since 4.8 no longer applies. It is true that the guidelines are silent about conflict in the kind of situation which is Jj 50 present here. If they remember to be governed by what is best for the child then they should be assured that they will not be in conflict with the obligations which people generally have under the Anti-Discrimination Act and, of course, the principles enshrined in the Family Law Act. 7 JUDGMENT 60 -- 7 of 8 -- 02022000 T2/MT1 M/T 6723/2000 (White J) In view of the fact that the application has become unnecessary in as much as the assessment has been arranged by the respondent and I have declined to make any declaratory orders with respect to the second part of the relief that is sought I would propose that there should be 10 no order as to costs but I would hear any submissions to the contrary, Mr McLeod. HER HONOUR: Although the respondent has in a sense been successful there were aspects in the correspondence to which I have referred from Ms Best which might have been more happily articulated and certainly generated Mr Booth's concerns that inappropriate matters were being taken into account. In all the circumstances I would decline to make any order as to costs on this application. I 20 lO 30 The formal orders are that the application be dismissed and :o 40 there be no order as to costs. 50 60 8 JUDGMENT -- 8 of 8 --