Vandenbovenkamp v Board of Studies, Teaching and Educational Standards NSW

The issues in the case

1. Counsel for the applicant submitted that the parties agreed that the application for review should be limited to the question whether the authorised person (a defined term under the Act) was required to recommend refusal of the applicant's application because of the Court order and the father's revoking his consent to the children being home schooled, and if the Tribunal found that the authorised officer was not so required, whether the authorised person made the correct and preferable decision to recommend refusal in those circumstances.
2. The respondent's counsel submitted in writing that it "is no part" of the respondent's case that it was legally obligated under any particular statutory provision to reach the decision it did. The issue is whether the respondent was correct to recommend refusal of the application as a threshold issue without proceeding to consider any other requirements of registration.
3. I find that the issue is as formulated by the respondent.

The history of the home schooling applications and decisions

1. The following findings are made from the information in the respondent's s 58 documents (Exhibit R1), and the applicant's witness statement (Exhibit R2).
2. The children were born on 2 June 1998 and 1 August 2001. In July 2013, the applicant applied to register both children for home schooling. In accordance with the direction in the application form, she attached a copy of the Court's order. An officer of the respondent contacted her and requested the father's consent. The assessment of the application included a home visit by an officer of the respondent. A written consent was provided dated 11 August 2013. The applications were successful and the children were registered for home schooling from 28 August 2013 to 27 August 2014.
3. The applicant applied for renewal of registration on about 28 July 2014. She indicated that there was a current Court order and included a copy of it. She also provided a copy of the father's 2013 consent. In any event, copies of both documents were on the respondent's file.
4. An officer of the respondent telephoned the father on 7 August 2014 to confirm that he continued to assent to home schooling. The officer left a message.
5. A file note made by the officer on 8 August 2014 states that the father "rescinded letter of 2013. Unhappy with how home schooling progressing. He has told (the applicant) this". He would agree if there was evidence the children were succeeding. The applicant had not provided any information to him. He made other criticisms to which I will refer later in this decision.
6. On 11 August 2014, an officer made a file note stating that she telephoned the applicant to explain the refusal process "due to father's non consent" and the option for an internal review.
7. The original decision dated 12 August 2014 stated that the respondent "is unable to approve an application for home schooling registration where it would contravene the provisions of a court order. On that basis, this letter advises you of the recommendation to refuse your applications for home schooling registration."
8. The applicant applied for an internal review of the original decision by email on 26 August 2014. The internal review decision dated 22 September 2014, is the subject of review in these proceedings.
9. An officer of the respondent contacted the father of the children twice after the application for internal review had been received.
10. On 29 August 2014, the officer made a file note stating that she had contacted the father and advised him that the respondent "planned to refuse the applications", that the applicant had applied for internal review, and asked him "if he wished to submit any additional documented information for consideration by the Authorised Person who would conduct the review, particularly given that his previous advice re his withdrawing permission for his children to be registered for home schooling was verbal" (emphasis added). The file note set out further details of the father's comments: 1. The applicant had sent him a parcel of information to show what the children had been doing in a "well done spread sheet". 2. The things it showed was "not what they need". If comprised "a lot of craft" and "minimal English and Maths". 3. It was like "a hobby" -- not curriculum. 4. He was concerned about the children's "social skills" and that they were "not mixing with different sorts of people". 5. He was concerned that his wife was too busy - "she is a single parent who runs a business". 6. He would still withdraw his permission and would put that request in an email.
11. On the same day, the officer sent the father an email with the home schooling email address. The email also stated that the father "may choose to provide the reasons for your current position in relation to home schooling of your sons, appreciating from our conversation that this represents a change in the position you initially adopted and communicated to us in August 2013".
12. On 2 September 2014, the officer again contacted the father "as no email had been received", and made a file note. Later that day, the father sent an email in which he stated that he wished to revoke his previous decision to allow his children to be home schooled. He repeated and elaborated upon the verbal criticism he had made, including that the document he had received from the applicant did not show the children's abilities in writing and life skills. He stated that he did not want home schooling but had given his consent because his children wanted to try it. "I now feel that the lack of supervision and routine in key areas has led to failure of this experiment/education".

Consideration and findings

1. I accept the applicant's uncontested evidence about her relationship and contact with the father and the children's relationship and contact with him. The history before the consent order was made provides context for the consent order and the relationships thereafter. However, I am most concerned with what has happened since the order was made on 3 December 2004.
2. It is relevant that the consent order included orders that:

• The children reside with the mother.
• That the mother be responsible for the day-to-day care, welfare and development of the children while they are living with her and that the father have similar responsibilities when they have contact with him.
• There were six contact orders in relation to the father from 3 December 2004 for different periods of time gradually increasing the contact period until an order commencing 1 February 2007 which provided that the children have contact each alternate weekend from after school Friday until 5 pm Sunday.
• There were also specific orders about school holidays, beginning in 2006, and special days such as Father's day and Mother's day. Contact orders until 3 September 2005 were subject to a condition precedent that the father provide specified evidence that he had not used illicit drugs. There was also an order that the father not use illicit drugs during any contact period and within 48 hours prior to contact commencing.

1. The relevant history of the relationships and contact between the applicant and the father and the children and the father is summarised as follows.
2. The applicant and the father separated after an incident on 27 February 2001. The children have lived only with the applicant since then.
3. From May 2001 the father began having some contact with the older child and then with the younger child after his birth on 1 August 2001.
4. From January 2002 the father stopped visiting the children because he became very unwell and was hospitalised.
5. On 14 July 2002, the applicant agreed to the father's seeing the older child.
6. From August 2002 until August 2003, the older child had overnight contact with the father once every second week. The younger child had contact with the father for a few hours when he dropped off the older child.
7. In June 2003, the father lost his driver's licence. The applicant began dropping off and collecting the older child from the father's home.
8. From about 18 August 2003, the older child had no further contact with the father until December 2003.
9. From December 2003 until 2007, the father saw the two children one to two times per month, on average.
10. From 2008, the father's contact with the children decreased. He often cancelled his appointments with the children for one reason or another.
11. In 2008, the younger child had no contact with the father. The older child saw the father a few times.
12. In 2009 the younger child saw the father once. The older child saw the father a few times.
13. In 2010, the younger child had no contact with the father. The older child saw the father once.
14. In 2011, the father had no contact with the children.
15. In 2012, the father spoke to the older child once on the telephone.
16. In 2013, the father had no contact with the children. The applicant spoke to the father on the telephone once to get his consent for home schooling.
17. In 2014, the younger child had no contact with the father. The older child saw the father once on a weekend in February 2014.
18. To date in 2015, the father has not seen or spoken to the children at all.
19. It is apparent that the father was not having contact with the children in accordance with the consent order from 2008. Given his limited contact with the children, the father would have had little knowledge of either child upon which to make his criticisms of their home schooling.
20. By requiring the father to state whether or not he consented to the home schooling of the children, the respondent was enforcing the consent orders made ten years ago with which the parties to the order were not complying and which neither chose to seek to enforce. I do not consider that in this case, the respondent's decision was the correct decision. Counsel for the respondent submitted that it had no legal obligation to act as it did. I accept that is so.
21. In coming to that conclusion, I have taken into account the written and oral submissions of the parties. The respondent comprehensively analysed the statutory context of the parenting order, the Family Law Act 1975 (FLA), and the Act. It submitted that the failure of one party to a parenting order to consult with the other is capable of amounting to a breach of s 65P of the FLA and the evidence suggests that the applicant did not consult the father about the renewal application. It followed that the authorised person was correct not to make a decision in favour of conduct that "might be capable of constituting a breach of the parenting order and s 65P".
22. Neither party requested a non-publication or anonymisation order. The applicant asked that certain matters concerning the children not be referred to. It was unnecessary to refer to those matters in the decision.
23. The Tribunal accepts that it is not the role of the respondent to consider whether the applicant should have sole parental responsibility or unilateral responsibility to decide to apply for home schooling for the children. Its role is to consider an application for registration for home schooling made by a parent of a child pursuant to s 71 of the Act.
24. The respondent did not argue that the application was invalid. It did not argue that the applicant was not a "parent" as defined in s 3 of the Act:
25. Parent includes a guardian or other person having the custody or care of a child.
26. In my opinion, the appropriate course in this case was for the respondent to consider the application for registration, taking into account relevant information, including that it had obtained from the father about why he opposed registration for home schooling, to the extent that it is relevant.
27. I do not accept the respondent's submission that an authorised person should inquire at the threshold stage about the respective reasons for and against joint or unilateral parental decision-making on education matters and not assess the reasons for the objection. The hypothetical example supporting that submission is not sound. A biological parent with "no legal parental responsibility" would not be a "parent" within the meaning of the Act and could not lodge a valid application.
28. There may or may not be a dispute between the applicant and the father after the registration application is considered, a recommendation made, and the Minister makes a decision.
29. Even if the applicant or the father disagrees with the outcome, he or she may not wish to pursue the matter further. Either may approach the Family Court to enforce or seek to amend the parenting order.
30. For those reasons, the Tribunal recommends that the applications for registration of the children for home schooling be considered on their merits and not be refused because of the court order and the father's not consenting to the applications. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 21 April 2015 - Updated representation in the cover sheet. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 April 2015