Board of Studies, Teaching and Educational Standards v Vandenbovenkamp

WARD JA: The respondent, Ms Vandenbovenkamp, is the mother of two children now aged 18 and 15 respectively. She and her husband separated in 2001 and thereafter the children lived with Ms Vandenbovenkamp. In December 2004, the Family Court made orders, by consent, which provided, among other things, for Mr and Ms Vandenbovenkamp to have joint responsibility for the long term care, welfare and development of the children, including decisions related to their education.

In July 2013, Ms Vandenbovenkamp applied to the Board of Studies, Teaching and Educational Standards (the Board) to register her children for home schooling pursuant to s 71 of the Education Act 1990 (NSW). The Board is the entity, constituted by s 4(1) of the Board of Studies, Teaching and Educational Standards Act 2013 (NSW), which administers the scheme for registration for home schooling put in place under the Education Act. In connection with that application Ms Vandenbovenkamp provided the Board with Mr Vandenbovenkamp’s written consent (dated August 2013) to the application. The application was approved. These proceedings arise out of the application made by Ms Vandenbovenkamp the following year, in July 2014, for the renewal of the home schooling registration for each of the children. This time Mr Vandenbovenkamp’s consent was not forthcoming. The officer appointed by the Board to consider the application (the authorised person) recommended in those circumstances that the application be refused.

After an unsuccessful internal review of that decision, Ms Vandenbovenkamp successfully sought review of that recommendation by the NSW Civil and Administrative Tribunal (Vandenbovenkamp v Board of Studies, Teaching and Educational Standards NSW [2015] NSWCATAD 68). She then successfully resisted an appeal by the Board from the Tribunal’s decision (Board of Studies, Teaching and Educational Standards v Vandenbovenkamp [2015] NSWCATAP 261).

The Board now seeks leave, pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW), to appeal from the Appeal Panel’s decision. Such leave may be granted on a question of law. The Board has identified the questions of law arising on this appeal as being:

Given the constitution of the Appeal Panel, such a proceeding is allocated to this Court by s 48(2)(f) of the Supreme Court Act 1970 (NSW). The Board seeks to have the Appeal Panel’s orders set aside and, in lieu thereof, that orders be made allowing the appeal to the Appeal Panel; setting aside the order of the Tribunal made at first instance; and ordering in place of the Tribunal’s order that the authorised person’s recommendation of 22 September 2014 (that the home schooling registration application be refused) be confirmed. As this is a test case for the Board, it has agreed to pay Ms Vandenbovenkamp’s costs of these proceedings irrespective of their outcome (at New South Wales Crown rates).

Mr Vandenbovenkamp was notified of these proceedings but did not seek to be heard. As the Board’s appeal raises a matter arising under the Constitution, notice was given under s 78B of the Judiciary Act 1903 (Cth) to the various Attorneys-General. None has sought to intervene.

The Board contends that the answer to the first question posed above is in the affirmative, as is the answer to the second question (if it be reached). For Ms Vandenbovenkamp it is contended that, on the proper interpretation of the relevant Family Court orders, the above questions do not arise but that, if that contention be wrong, the questions posed by the Board should be answered in the negative and the appeal dismissed. The appeal continues to have utility as Ms Vandenbovenkamp’s younger child, who is presently registered for distance schooling, is under the age of 17.

The principles on which the Education Act is based are identified in s 4 of the Act. They include the right of every child to receive an education (s 4(a)) and that the education of a child is primarily the responsibility of the child’s parents (s 4(b)). The principal objects of the Act are specified in s 5 and include (in sub-s(d)) to allow children to be educated at home. Section 6(1)(a) provides that it is the intention of the Parliament that every person concerned in the administration of the Act or of education of school-age children in this State is to have regard, as far as is practicable or appropriate, to the object of “assisting each child to achieve his or her educational potential”. A further object to which such persons are to have regard is the provision of opportunities for parents to participate in the education of their children (in sub-s (1)(m)).

“Parent” is defined in s 3(1) of the Act as including a guardian or other person “having the custody or care of a child”. There is no definition of “guardian” in the Act.

Section 22 of the Act imposes a duty on parents of children who are of compulsory school-age in the following terms:

Section 23(1) provides that a parent of a child of compulsory school-age is guilty of an offence if the parent fails to cause the child either to be enrolled at, and to attend, a government school or a registered non-government school, or to be registered for home schooling under Part 7. Sections 23(2) and (3) provide certain defences to a prosecution under s 23, including (see s 23(3)(h)) that the child was “living independently of his or her parents”.

Part 7 Div 6 of the Act deals with registration for home schooling. Sections 71 and 72 provide, relevantly, as follows:

“Authorised person” is defined in s 3(1) of the Act as meaning, in relation to a provision of the Act, a person who is authorised in writing by the Minister (or the Minister’s delegate under s 119) for the purposes of that provision. For the purposes of the above provisions, s 70 provides that “authorised person” includes an inspector.

Registration of a child for home schooling is to be limited in its operation to a period, not exceeding two years, specified in the certificate of registration (s 73(3)).

Finally, it should be noted that s 107(1)(d) provides that an application may be made to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) of a recommendation of an authorised person that the Minister refuse to register a child for home schooling. Such an application may only be made by a person who is, or is required to be, given notice of the recommendation under the Act (which would, by reference to s 71(3) include the applicant for registration). Pursuant to s 108(1), on such an application the Tribunal relevantly has only two courses of action: it may confirm the recommendation (subs (1)(a)) or it may make a different recommendation to the Minister concerning the subject matter of the application (sub-s (1)(b)).

There was some discussion during this appeal as to whether it would be open to an authorised person giving advice to the Minister pursuant to s 71(2) to make a conditional or qualified recommendation in favour of an application for registration – say, for example, for the authorised person to advise the Minister of his or her recommendation that the home schooling application be approved but subject to there being a variation of an existing Family Court order that might otherwise have precluded the making of the application (see T 19.11-20.21-50).

While there is nothing in s 71 to suggest that the provision of advice of the above kind would not satisfy the statutory requirement that the Minister obtain advice in relation to the application, the Board argues that such a course would be problematic from the perspective of an applicant, as there would arguably then be no ability for the applicant to seek administrative review of the recommendation (i.e., if a conditional recommendation for approval is not a recommendation to refuse the application). Alternatively, it submits that a conditional approval might in effect be seen as a refusal (in the sense that the authorised person is not recommending approval at that stage but might do so in the future if some condition were later fulfilled). In any event, the issue does not arise in the present case as here there was a clear recommendation by the authorised person that the application be refused.

As noted in the introduction to these reasons, at the time of the application for renewal of the registration for home schooling there was in place a current Family Court order in relation to the children.

Ms Vandenbovenkamp’s application for renewal of the registrations for home schooling of each of her children (as her original application had done) properly disclosed the existence of the Family Court order and included a copy of that order. That order, made by consent on 3 December 2004, provided for the children to reside with their mother and, relevantly:

The order contained a notation by the Court as to various matters, including:

There is no dispute that an order of the kind made by order 2 of the December 2004 consent order falls within what is referred to in the Act as a “specific issues order”, being a parenting order dealing not with the person with whom a child is to live, the contact between a child and other persons or the maintenance of a child but, rather, with “any other aspect of parental responsibility for a child”. Section 64B(6) of the Family Law Act 1975 (Cth) provided, at the time the joint parenting order was made in the present case, that:

On 12 August 2014, Ms Vandenbovenkamp was notified by the Board that the Board was “unable to approve an application for home schooling registration where it would contravene the provisions of a court order” and that on that basis the recommendation had been made that the applications for home schooling registration be refused.

On 22 September 2014, following an internal review of the recommendation to refuse the home schooling registrations, Ms Vandenbovenkamp was notified by the Authorised Person that she was of the view that the original recommendation should be upheld. A formal recommendation was made to that effect. It was that decision of which Ms Vandenbovenkamp then sought administrative review.

The Senior Member of the Tribunal who reviewed the September 2014 decision observed (at [38]) that from 2008 the father “was not having contact with the children in accordance with the [2004] consent order” and stated that, given his limited contact with the children, the father would have had little knowledge of either child upon which to make the criticisms he had made of their home schooling.

The Tribunal reached the conclusion (at [39]) that:

The Tribunal considered that the Board’s decision in this respect (i.e., to “enforce” the order) was not the correct one. It accepted as correct the Board’s submission that the Board had no legal obligation to act as it had done (i.e., to refuse to approve the application) ([39]).

Pausing there, it was not suggested in this Court that the Board was “enforcing” the Family Court order in the literal sense. Nor, it seems to me, is it to the point that the parents might have taken it upon themselves not to comply with the order in one or more respects, nor to seek to compel compliance by the other parent with the order.

The Tribunal noted (at [40]) submissions for the Board to the effect that failure of one party to a parenting order to consult with the other was capable of amounting to a breach of s 65P of the Family Law Act and 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 the Act. However, the Tribunal went on to express the opinion that the Board’s role was not to consider whether Ms Vandenbovenkamp should have sole parental, or unilateral, responsibility to decide to apply for home schooling for the children; rather, its role was to “consider an application for registration for home schooling made by a parent of a child pursuant to s 71 of the Act” ([42]), “taking into account relevant information”, including the information it had obtained from the father about why he opposed registration for home schooling “to the extent that it is relevant” ([45]).

The Tribunal noted (at [43]) that the Board did not argue that the application was invalid, nor that Ms Vandenbovenkamp was not a “parent” as defined in s 3 of the Act. The Tribunal’s reasons went on to state (at [46]):

The Tribunal’s ultimate recommendation (at [49]) was 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”.

The Appeal Panel subsequently dismissed the Board’s appeal from that decision.

The Appeal Panel noted that the proposition underlying the Board’s two grounds of appeal was that the authorised person must recommend refusal of the application (on the ground that the non-applicant parent has not consented to the application) where there is a joint parenting order in force covering decisions as to the long term education of the child; and that in those circumstances the authorised person could not proceed to consider the merits of the application ([17]).

It pointed out that at the Tribunal hearing the Board had not gone so far as to submit that it was mandatory for authorised persons (and the Tribunal on review) to reject an application at the threshold in those circumstances ([19]) but had instead maintained that it was a “sufficient” reason for recommending against the application. However, it said that before the Appeal Panel the Board’s argument had proceeded on the basis that the absence of contemporaneous consent was determinative (i.e., against a positive recommendation) because it was not open to one parent in those circumstances to exercise a power that by court order had been vested in the two parents jointly.

The Appeal Panel, having recorded the respective parties’ submissions on the issues raised, concluded that the provisions of the Education Act should be construed in a way to give effect to its principles and relevant objects (which the Appeal Panel had earlier set out at [21]-[22] of the reasons) and that an approach should be taken to the construction of the provisions of the Act that promoted a beneficial interpretation of the Act and supported the education of children in the most appropriate form given their circumstances ([55]).

The Appeal Panel concluded that the Education Act did not prevent an authorised person from considering an application from a parent affected by a joint parenting order that might be seen as covering home schooling ([59]). The Appeal Panel did not consider it “necessarily improper” for an authorised person to proceed to deal with an application because the making of the application may have involved a breach by the applicant parent of a Family Court order ([60]). It noted that a constitutional submission to which the Board had alluded had not been pursued in any detail and so the Appeal Panel did not deal with it ([65]).

After submissions were made as to the appropriate form of orders, on 8 February 2016 the Appeal Panel made orders by consent setting aside the recommendation of the Tribunal at first instance and in place of that recommendation ordering (order 1) that there be a recommendation that:

Order 1 was stayed pending the determination of the appeal proceedings then foreshadowed by the Board. In the meantime, the Board had given an undertaking, on 30 June 2015, to assess the merits of Ms Vandenbovenkamp’s application, but without providing a recommendation to the Minister. In accordance with that undertaking, an assessment was made of the merits of the application.

Ms Vandenbovenkamp was advised by the Board, by letter dated 14 December 2015, that on the merits of the application “putting aside the effect of the joint parenting order” an authorised person had determined that a recommendation should be made to the Minister in favour of the younger child’s registration for home schooling for the maximum allowable period of two years. The authorised person recommended against the older child’s registration for home schooling on the basis that the older child was by then 17 years old and that it was not necessary for him to be registered for home schooling in order that there be compliance with ss 22 and 23 of the Education Act. The letter confirmed that the older child did not need to be registered for home schooling in order for Ms Vandenbovenkamp to continue to educate him at home.

Ms Vandenbovenkamp is thus in the position that, but for the Family Court order, a favourable recommendation would be made in relation to her application.

The Board’s sole ground of appeal is that:

In essence the Board puts forward three arguments in support of its appeal.

First, the Board maintains that, on the proper construction of s 71 of the Education Act, “parent” must be read as meaning someone with legal capacity or power to make the relevant educational decisions concerning the child. It argues that once a biological parent’s capacity or power to make those decisions is removed (or, alternatively, diminished – in the sense that under the Family Court orders Ms Vandenbovenkamp no longer has the power or capacity unilaterally to make long-term educational decisions for the children but must do so jointly with the children’s father), then the biological parent ceases to be a “parent” for the purposes of the Act, “being neither capable of exercising the powers of a parent nor, importantly, subject to the burdens and criminal burdens, of the obligations of a parent under the Act” (see T 6.17-19).

Second, it argues that even if the Family Court order does not deprive a parent of capacity (or relevantly diminish a parent’s capacity) to apply to register a child for home schooling, an authorised person making the decision whether or not to recommend an application for home schooling cannot disregard an order of a superior court of record (the Family Court) and make a recommendation that would involve a breach of such an order. In other words, any reasonable decision-maker could not come to a decision to recommend an application for home schooling where the decision-maker is on notice (as was the case here) that the application has (or may have) been made in breach of a Family Court order. The Board thus submits that in the present case, irrespective of the issue of capacity, the authorised person was bound to recommend against the application by Ms Vandenbovenkamp (see T 11.50-12.5).

Third, the Board argues that, if the Family Court order deprives a parent of capacity (unilaterally) to exercise powers as a parent, including the power to apply to register for home schooling, but the Education Act nonetheless purports to permit the parent to do so, then there would be an operational inconsistency between the Federal order and the State Act, of the kind referred to in Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 at [248]-[250].

In response, Ms Vandenbovenkamp submits that, on its proper construction, the Family Court order does not remove or diminish her capacity unilaterally to make decisions as to the home schooling of the children; rather, it imposes by implication a duty to consult and a duty to seek agreement. It is submitted that (whether or not there was a breach of such an implied duty in the present case) Ms Vandenbovenkamp was a “parent” for the purposes of s 71 of the Education Act and the appeal should be dismissed.

Ms Vandenbovenkamp concedes that if the construction of the Family Court order which she propounds is not correct then her alternative argument is harder to maintain, but she nevertheless argues that even in that case the Board’s argument on the construction of s 71 of the Education Act should fail and that there is no operational inconsistency of the kind identified by the Board.

Since the construction of the Family Court order would, on Ms Vandenbovenkamp’s submissions, determine the matter, I will consider that issue first.

Ms Vandenbovenkamp’s submission, in essence, is that the reference to “joint” responsibility in the relevant Family Court order does not mean that the power to make (or parental responsibility for) long term decisions on educational matters was required to be exercised “jointly”. Ms Vandenbovenkamp submits that “joint” responsibility in this context means a responsibility that the parents each hold at the same time (“at once”) or in common.

By reference to dictionary definitions that need not here be set out (and are of dubious assistance – see TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim [2016] NSWCA 68 at [81] per Leeming JA), Ms Vandenbovenkamp submits that the word “joint” does not necessarily or ordinarily imply the requirement that the relevant thing, done or held “in common” can only validly be utilised or exercised by mutual consent. Though she accepts that there may be “consequences” that flow, as between the parents themselves, if one parent proposes to make a decision the subject of a “joint parental responsibility” order without first consulting or obtaining the consent of the other parent, she maintains that nothing in the order requires the responsibility of making decisions as to the children’s education to be exercised jointly.

Ms Vandenbovenkamp notes that the concept of “parental responsibility” (which was introduced into the Family Law Act by way of amendments made in 1995, i.e., “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” – see s 61B), was recognised in In the Marriage of B (1997) 140 FLR 11; [1997] FLC 92-755 (at 68) as being one that could (subject to court order) be exercised jointly or independently.

Section 61C of the Family Law Act provided, at the relevant time, as follows:

Section 61D went on to provide that:

Ms Vandenbovenkamp submits that parental responsibilities for, and duties in relation to, children are recognised in the community and in the law as fundamental responsibilities and duties. She argues, referring to the observation by the High Court in Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63 (at 304) as to the improbability that the legislature would overthrow fundamental principles without expressing its intention “with irresistible clearness”, that the Family Court orders should not be construed as taking away the basic authority of parents without express terms or by clear implication.

Therefore, while Ms Vandenbovenkamp accepts that a court order could modify the position established by s 61C(1) of the Act, she argues that such an order would not take away or diminish any aspect of that parental responsibility except to the extent expressly provided for in the order or necessary to give effect to the order (s 61D(2)). She submits that use of the word “joint” does not give rise to any such necessary or implied removal or diminution of her parental power or authority so as to deprive her of capacity to make an application for home schooling registration without Mr Vandenbovenkamp’s consent.

In support of her argument, Ms Vandenbovenkamp points to s 21(1) of the Guardianship Act 1987 (NSW) as an example of a provision that expressly provides for custody of the person to whom a guardian has been appointed to be “to the exclusion of any other person”; there being no equivalent words in the order made by the Family Court. She also submits, by way of a broad analogy with s 125 of the Corporations Act 2001 (Cth), that the failure to obtain Mr Vandenbovenkamp’s consent to the renewal application does not affect her capacity to make that application or otherwise affect the validity of that application.

Ms Vandenbovenkamp also points to extrinsic materials relating to the amendment in 1995 of the Family Law Act (a series of reports by the Family Law Council and the Report by the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act 1975 (Commonwealth Parliament, November 1992)) and argues that there is nothing in those materials which refers to the need to restrict a parent’s capacity to act absent the other parent’s consent. She submits that, instead, the focus was on promoting the ongoing involvement of both parents with their children by sharing parental responsibility between them and requiring them to consult with each other.

Thus it is Ms Vandenbovenkamp’s submission that the Family Court order providing for “joint” parental responsibility in the present case should be seen as imposing only an implied duty to consult; not as removing or diminishing Ms Vandenbovenkamp’s capacity individually to make decisions in relation to the home schooling of her children.

The Board refers to various cases under the regime that applied before the 1995 amendments to the Family Law Act (where joint custody orders rather than order for joint parental responsibility were made) as indicating how a “joint” parenting order of the kind here in question is to operate. Joint custody orders, it argues, precluded one parent from making parenting decisions without the agreement of the other (referring to In the Marriage of Todd (No 2) (1976) 25 FLR 260; [1976] FLC 90-008 at 267, 268; In the Marriage of McEnearney [1980] FLC 90-866 at 75,501, approved in In the Marriage of Cullen (1981) 8 Fam LR 35; [1981] FLC 91-113 at 36-38, 44-45; In the Marriage of Chandler (1981) 6 Fam LR 736; [1981] FLC 91-008 at 739-740).

In particular, the Board notes that in In the Marriage of B, which involved consideration of the provisions of the Family Law Act as it was at the time of the joint parenting order made in the present case, the issue was whether s 61C(1) of the Act required parents to exercise parental responsibility jointly or whether they could exercise it independently in circumstances where (unlike here) there was no parenting order in place. The Full Court of the Family Court there said (at 68):

The Board argues that the Court there implicitly accepted that, if there were a joint specific issues order in place, its effect would be that parents could only exercise their parental responsibility jointly. It points out that in In the Marriage of Vlug and Poulos (1997) 141 FLR 244; [1997] FLC 92-778 at 256, where the Full Court of the Family Court quoted from In the Marriage of B and went on to hold that a specific issues order conferring on the parties joint long-term parental responsibility there required the parties to consult about matters such as education, religion and naming of the children, the Court did not suggest that the only requirement imposed by such an order was an obligation to consult.

Ms Vandenbovenkamp seeks to explain those earlier cases, which addressed the question of how joint custody orders were to operate under the Family Law Act as previously in force, as being ones where the focus was on the parties’ rights and obligations as between each other; not the parties’ capacity vis a vis third parties. It is submitted that those cases are consistent with and support her submission that an order allocating “joint” parental responsibility requires the parties to consult with each other and attempt to reach agreement but does not require that they act “jointly”. She characterises the references in those cases to the parties having to come back before the Court (see, for example McEnearney at 75,501) in effect as being an acknowledgement that, failing consultation or agreement, the parties would be entitled to bring the matter back before the Court for further orders (not that they would be required to do so before they could act unilaterally). Ms Vandenbovenkamp’s argument is thus that there is a distinction between the Court’s recognition that the parties can, or may have to, come back to the Court and an argument that there is no capacity to act without a variation of the relevant parenting order.

The Board, however, contends that the effect of a specific issues order which confers “joint” parental responsibility is to alter the ordinary position under s 61C of the Family Law Act such that each parent no longer has the capacity that he or she would ordinarily have had to exercise parental responsibility independently but must do so jointly. Thus it submits that, as a result of the joint parenting order in the present case, Ms Vandenbovenkamp was not, alone, able to exercise the power she would otherwise have had as a parent to pursue an application under s 71(1) of the Education Act; but was instead required to exercise the power to make such an application jointly with Mr Vandenbovenkamp.

The Board argues that such a result is consistent with the position which is now made express in the Family Law Act by s 65DAC:

The Board notes that in Goode v Goode (2006) 206 FLR 212; [2006] FamCA 1346 at [35]-[39], the Full Court of the Family Court explained that the analysis in In the Marriage of B (to the effect that, in the absence of a parenting order providing for shared parental responsibility, s 61C permitted parental responsibility to be exercised independently) remained correct but emphasised the difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility (which now has the effect set out in s 65DAC).

The Board also notes the observation in Family Law in Australia (L Young, G Monahan, A Sifis and R Carroll, 8th ed, 2013, LexisNexis) at [8.26]) to the effect that the terms of s 65DAC(2) do not seem to allow one parent to make the decision, even where agreement cannot be reached after good faith consultation.

The Board emphasises that it does not rely on s 65DAC (or the recent cases in which it has been considered) as applicable to the construction of the joint parenting order in this case but argues that it demonstrates that the construction advanced by the Board is not one which ought to be regarded as unreasonable or inconvenient.

Ms Vandenbovenkamp in response points to the explanatory memorandum in respect of the legislation that introduced the current Part VII of the Act (the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)) in which it was said (at [196]; [198]) that:

She submits that the extrinsic materials do not indicate that the concept of “shared parental responsibility” was intended to have an effect on capacity vis a vis third parties.

Ms Vandenbovenkamp also submits that the language of ss 65DAC(3) and (4) supports her analysis, arguing that the requirement to consult and make a genuine effort to come to a joint decision (and the fact that third parties are relieved of the obligation to find out whether a decision has been jointly made) does not suggest withdrawal of or any limitation on parental capacity. She submits that the implication arising from s 65DAC(4) is that the absence of consent is a matter between the parties to the Family Court order and has no effect on the parent’s capacity vis a vis third parties (nor the validity of any decisions made on that parent’s application).

Ms Vandenbovenkamp maintains that the impracticality and far-reaching consequences of the Board’s construction of the joint parenting order militates strongly against it. In that regard, Ms Vandenbovenkamp argues that the Board’s construction essentially gives one parent the power of veto over a decision as to a matter in which a joint parenting order has been made and puts the onus on the parent with day-to-day responsibility to approach the Court for permission to take the proposed action. She points out that this issue will not only arise where the other parent positively opposes the proposed decision but also where consent is absent because the other parent cannot be found, or chooses not to respond to the inquiry, or refuses to take a position one way or the other. She also points out that the issue is not confined to decisions in relation to schooling but may arise in a day-to day context where joint parental responsibility is so allocated, or to decisions in relation to medical matters or the like.

Ms Vandenbovenkamp points out that if the Board’s construction of the order is correct she also could not enrol her children in a government school under s 34 of the Education Act, or any school, without Mr Vandenbovenkamp’s consent (yet her application to enrol the children in distance education under s 34 was approved without any evidence of Mr Vandenbovenkamp’s consent – there referring to the Appeal Panel’s reasons at [8]). She argues that this is particularly problematic in the light of s 23 of the Education Act, which provides that a parent is guilty of an offence if he or she fails to cause the child to be enrolled in a government school or registered non-government school or to be registered for home schooling.

Ms Vandenbovenkamp further submits that if the Board’s contention is correct then decisions made without knowledge of such orders will, where both parents’ consent has not been obtained, be invalid; since she submits that the issue of capacity should not be affected by the Board’s knowledge or otherwise about the existence of an order or the other parent’s position in relation to the application.

The Board answers the submissions made by Ms Vandenbovenkamp (at [34]-[41]) as to the consequences of the approach for which it contends, first, on the basis that they reflect the purpose of an order conferring parental responsibility jointly (in contrast to the ordinary position that it may be exercised independently) and, second, on the basis that any difficulty encountered in the working of such an order is to be resolved not by ignoring it but by seeking its variation or discharge by the Family Court.

The Board does not cavil with the proposition that the making of such an order gives “the other parent veto power over any such decision”; rather, it submits that this is simply another way of saying that the parents must decide jointly. It argues that the onus should be on the parent who wishes to depart from a previously made order of the Family Court to approach that Court to persuade it that its previous orders are no longer suitable. It notes that the parents remain subject to the order until it is varied and, insofar as Ms Vandenbovenkamp points to delay in such a process, that there is power in the Family Court to make interim orders pending a final resolution.

The Board also submits that the fact that, absent evidence of Mr Vandenbovenkamp’s consent, Ms Vandenbovenkamp has enrolled her children in a government school offering distance education (a matter to which Ms Vandenbovenkamp pointed as being inconsistent with the Board’s position), cannot bear on the construction of the relevant legislation or the joint parenting order; and points out that the correctness of that course is not under consideration by this Court. It submits that this would require close attention to the scheme of the Education Act concerning enrolment in schools. The Board submits that even if the act of a parent bound by a joint parenting order in seeking to enrol his or her child in a school is invalid, it is a different question whether the subsequent “admission” or “enrolment” by the school or the Minister would be invalid (raising questions of the kind considered in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 which are different from the questions at issue in the present case).

The proposition that a joint parenting order of the kind here made does not require that the exercise of parental responsibility be “jointly” carried out (and that all such an order requires, and only implicitly requires at that, is that there be consultation between the parents) flies in the face of the recognition in cases such as McEnearney and Todd (No 2) that it might (regrettably) be necessary for parents the subject of a joint custody order (under the terms of the legislation as it then was) to go back to court if they could not reach agreement between themselves as to the relevant matter.

Ms Vandenbovenkamp argues that because it is an open and reasonable reading of the joint parenting order in the present case that “joint” parental responsibility means parental responsibility that each holds “in common” with the other, s 61D requires that such a reading be adopted because there is no necessary requirement to the contrary. That, however, inverts the order in which the question of construction of the joint parenting order should be approached and strays into the first of the arguments put by the Board (as to the capacity issue).

What is conferred by the order on each of the parents is “joint parental responsibility” in relation to decisions of the kind here involved. That cannot sensibly be read as conferring each with individual authority to make those decisions (albeit with a duty first to consult about them) – because if that were the case such an order would not have been necessary at all. Section 61C would, absent such an order, have conferred on each parent the relevant authority and In the Marriage of B establishes that the parents could then exercise that authority individually.

The authorities on which the Board has relied make clear that, in the absence of agreement on matters in respect of which the parents have joint or shared responsibility, there is a need for the parent seeking to have implemented a particular decision that the other opposes or to which the other does not consent to seek Court approval or a variation of the court order. That this is an unfortunate consequence of a joint parenting order in terms of the stress or cost of ongoing litigation was clearly recognised in those cases.

The joint parenting order here cannot be read down as imposing no more than a duty to consult or a duty to seek agreement in good faith or anything of that kind. Rather, in its terms it confers on the parents “joint” responsibility for the making of long-term decisions of an important kind in relation to their children.

As to the suggestion that those earlier cases can in effect be distinguished as dealing only with the position as between the parents (and not as between third parties), a parenting order regulating parental responsibility, as the Board notes, is an order concerning a person’s capacity to exercise those powers against the world (the Board there referring to what was said in A Dickey, Family Law (6th ed, 2014, Thomson Reuters at [21.230]). Insofar as Ms Vandenbovenkamp relies on other statutory provisions (see [55] above) they do not in my opinion assist in the construction to be placed on “joint” in the Family Court order in question.

The Board points to the delineation in the order between day-to-day matters and long-term matters as supporting its construction of the order. However, since that may be explained by the need for a separate division as to who has the day-to-day parental responsibility to the exclusion of the other (dependent on with whom the children are residing or having contact with at the time), I gain little assistance from that as to whether “joint parental responsibility” means responsibility which must be exercised “jointly”. Nor do I gain any assistance from the extrinsic materials to which the parties have referred.

Rather, I place weight on the fact that an order for joint parental responsibility as to long term decisions would not have been necessary (having regard to s 61C and to what was said in In the Marriage of B) if it meant no more than the parents each held in common with the other the responsibility for making such decisions and could exercise that power independently of the other (subject to a duty to consult). The order does not in terms impose any duty of consultation and the implied (or it might be said practical) necessity to consult about matters falling within the subject matter of the order is one that arises because of the fact that the responsibility must be exercised jointly.

As to the reliance placed by Ms Vandenbovenkamp on s 65DAC(4), I accept the Board’s submission that (contrary to the support Ms Vandenbovenkamp seeks to draw from it) there would be no need to make provision of this kind if the absence of one parent’s consent (in circumstances where there was a joint parenting order) had no effect on the capacity of the other parent to make the relevant decision.

I am unable to conclude that “joint” in the Family Court order should be construed as Ms Vandenbovenkamp contends. Accordingly, this is not determinative of the appeal and I turn to a consideration of the Board’s three arguments.

In essence, what the Board contends is that “parent” in s 71 of the Education Act must be understood as referring to a person (having the custody and care of a child as per the definition in s 3(1)) who may lawfully exercise parental responsibility of the relevant kind (i.e., in the present context, the responsibility of making a decision as to home schooling).

The Board points to various statutes which provide for the making of orders that may confine the ability of a parent to exercise the parental responsibility he or she would ordinarily have (such as s 21(2A) of the Guardianship Act; s 22D of the Education Act; and s 16 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)). It argues that the word “parent” in the Education Act must be understood to accommodate these possibilities.

In this regard, the Board attaches some significance to the concession by Ms Vandenbovenkamp (in her written submissions at [48]) that the Education Act must be read subject to other legislation that defines who is and is not a “parent” on the basis that this is a recognition that, in determining who is a “parent” for the purposes of the Education Act, it may be necessary to look to legal effects under legislation other than the Education Act itself. It argues that such attention should not be confined only to legislation which, in express terms, purports to define who is and who is not a “parent”, to the exclusion of legislation which is directed to the capacities of a person to exercise rights as a parent.

The Board submits that if an order of a court or tribunal expressly or implicitly deprives a parent of capacity to apply to register his or her child for home schooling, then the word “parent” in the Education Act is so confined. Here, the Board submits that use of the word “joint” has the necessary or implied effect of so doing. In such circumstances, the Board argues that the authorised person must recommend against registration because the application is not made by a “parent” within the meaning of the relevant section. The Board further argues that if, by order, a person is deprived of capacity to exercise a power, then the assertion of that power by that person is ineffective (referring to cases in the guardianship or administration context) irrespective of whether the legislation in question states expressly that dealings by such a person are void (see reply submissions at [15]). It thus maintains that the parenting order is effective as against the world to restrict the person’s capacity.

Ms Vandenbovenkamp points to the fact that the definition of the word “parent'” in s 3(1) is inclusive. She argues that it is clearly intended to pick up the ordinary meaning of parent (as in a biological or adoptive parent) and to expand to include guardians and other persons having custody or care of a child. She accepts that the word must be read subject to other legislation that defines who is and is not a “parent”, but argues that the definition is otherwise a broad definition encompassing the wide variety of circumstances in which children are looked after.

Ms Vandenbovenkamp submits that there is no indication in the Education Act that the word “parent” is to be read subject to an order of the Family Court restricting a parent’s capacity to make certain kinds of decisions or that it refers only to someone who has legal capacity to make the relevant decision. She points to the absence of any reference in the definition of “parent” or in s 71 to legal capacity and (as already noted) makes the submission that, before the legislature should be taken to have interfered with a fundamental right, the intention to do so must be irresistibly clear.

Ms Vandenbovenkamp argues that the fact that s 71 is expressed in the singular supports her construction (though she accepts that the singular may be read to include the plural (Interpretation Act 1987 (NSW), s 8(b)). She emphasises that the principles and objects of the Act (ss 4-6) are focused on ensuring that children receive an education, noting (as did the Appeal Panel) that one of the express objects of the Act is to allow children to be educated at home (s 5(d)). It is submitted that the effect of the Board’s construction (that Ms Vandenbovenkamp could not register the children for home schooling, and could not enrol them in any government school, without Mr Vandenbovenkamp’s consent) is contrary to the objects of the Act (since Ms Vandenbovenkamp would then have to wait for the Family Court to resolve the issue before taking steps to have her children educated).

Ms Vandenbovenkamp submits that the construction of “parent” that best promotes achievement of the Act’s objects is one that facilitates the ready enrolment of children in schooling (home schooling or otherwise) and that no harm results from a broad construction since the only people with the practical ability to make such choices are those who are in fact looking after the children concerned.

Both parties point to practical difficulties with the other’s construction of the word “parent” in s 71.

Ms Vandenbovenkamp argues that the Board’s construction causes difficulty if, as the Board accepts in its submissions at [14], the word “parent” is construed consistently throughout the Education Act (there pointing to ss 22, 22B, 22D(2), 26, 26B(2), 26E, 26G-26K, 33, 33A and 34). So, for example, it is submitted that if Ms Vandenbovenkamp were the subject of a compulsory schooling order under s 22D, the effect of the Board’s construction would be that she could not comply with that order absent Mr Vandenbovenkamp’s consent.

The Board submits that Ms Vandenbovenkamp’s construction leads to the result that a biological parent with the care and custody of a child would be subject to the obligation imposed by s 22 of the Education Act to cause the child to attend school or be registered for home schooling, on pain of criminal penalty imposed by s 23, even if there were a Family Court order prohibiting that person from exercising any responsibility for educational decisions and conferring responsibility for those decisions wholly on another.

In the course of oral submissions there was debate as to the practical consequence of the Board’s contention that the effect of the Family Court’s order is that there is no capacity or power of either of the parents independently to exercise the power and hence Ms Vandenbovenkamp was not a “parent” for the purposes of the Act. At first, it was submitted by the Board that, similarly neither would be (subject to the obligations or burdens of a parent under the Act) (see T 6.8-6.19) and hence the question arose as to whether it would follow that if there was not a joint decision in relation to the schooling, as a result of which compulsory school age children received no instruction, neither parent could be found guilty of an offence under s 23. For Ms Vandenbovenkamp, it is submitted that this demonstrates the difficulty of the Board’s contention that Ms Vandenbovenkamp is not a “parent” for the purposes of s 71. However, as clarified, the Board’s submission was that in those circumstances both were subject to a joint burden and both would be in breach (see T6.46).

In reply, the Board confirmed that its position is that the responsibility (and hence both the power and the obligation) is a joint responsibility; and therefore if the joint obligation is not met both parents will be in breach of s 22(1) irrespective of who is at fault (subject presumably, to any applicable defences).

It is ultimately not necessary for the purposes of determining this appeal (and not desirable given that there are potentially many varied factual situations in which an issue of this kind might arise), finally to determine whether the making of a joint parenting order of the kind in the present case has the effect of removing, or relevantly diminishing, the capacity of the parents who are subject to that order so as to deprive them of legal capacity to act unilaterally in making a decision which would fall within the scope of that order.

Were it necessary to decide, I would be inclined to the view that, since the definition of “parent” speaks of a guardian or someone having the “custody and care” of the child, and neither it nor s 71 makes reference to the legal capacity of the person making an application, the fact that the applicant is a “parent” within the broad definition of the word would be sufficient to entitle that person to make an application for registration for home schooling even if so to do amounted to breach of a court order or an undertaking inter partes.

I accept that the effect of the joint parenting order in the present case is, at least in a practical sense, to diminish the capacity of either Mr or Ms Vandenbovenkamp independently to make the relevant application, since for either to do so without the other’s consent would be in breach of the court order. However, I have difficulty with the proposition that this makes each of them no longer a “parent” for the purposes of s 71 of the Education Act. The only thing that is clear is that the unilateral making of a decision in relation to the long term care, welfare and development of the children would prima facie be a contravention of the order. Ultimately, whether or not the effect of the joint parenting order is to go further so as to detract from the capacity of one of the parents unilaterally to make a long term decision is a conclusion that can only be reached after an analysis of the order in light of the Family Law Act and the Education Act. As Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32 indicates, a prohibition does not invariably lead to a want of capacity (see also 2 Elizabeth Bay Road Pty Ltd v The Owners – Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409 at [90]-[94]). These matters were raised, but not fully explored, in the argument on appeal It is not necessary to come to a concluded view on this because I am of the view that the Board’s second argument (and hence the appeal) must succeed.

The Board submits that one of the functions of the authorised person must be to consider the entitlement of the applicant for registration for home schooling to make the application. It submits that if an authorised person concludes that the applicant is not so entitled, it must follow that the authorised person is bound to recommend against registration for home schooling; in other words that the only proper discharge of the function of making a recommendation to the Minister whether to register the child for home schooling would in those circumstances be to recommend against such registration.

It is submitted that the Education Act is not to be construed to permit registration for home schooling where to do so would frustrate the operation of a joint parenting order which is specific to a particular parent or child; rather, the more general terms of the Education Act should be construed as giving way to the more specific provision of such an order. The Board submits that, on its proper construction, the Education Act does not permit registration for home schooling in such circumstances, and the authorised person must accordingly recommend against such registration.

The Board argues that the Appeal Panel’s reasons (at [50]-[60]) do not address the way in which the Education Act intersects with orders dealing specifically with a particular parent or child, such as the joint parenting order in the present case. In particular, it argues that the view expressed at [62] that the terms of the joint parenting order and the attitude of the non-consenting parent are only “relevant matters” for the authorised person, give rise, among other things, to the problem as to what weight is to be given to the court order and as to the extent to which the authorised person is required to go behind the making of the court order. It is submitted that the Education Act is not to be construed as requiring the authorised person to second guess an order of a superior court of record; and that it is no answer to say that Mr Vandenbovenkamp could take any objection to the Family Court if he wished (as the Appeal Panel suggested at [61]), since that would be the position if no joint parenting order had been made and each of Mr and Ms Vandenbovenkamp had independent parental responsibility. It is submitted that the Appeal Panel’s approach denudes the joint parenting order of its most central feature and circumvents the strictures of the Family Law Act, which focus on the best interests of the children.

Ms Vandenbovenkamp accepts that the fact that an application has been or may have been made in breach of a Family Court order cannot be said to be an irrelevant consideration, in the sense of something that an authorised person could not permissibly take into account in determining what recommendation to make in relation to the application; but submits that it is no role of the authorised person to adjudge whether there is a breach of a Family Court order or to punish the applicant for that (see T 34.32-48; T 45.40). She emphasises that the scope, subject matter and purpose of the Act would include the best interests of the children; and that no barrier should be put in the way of the child receiving an education (see T 40.18).

Ultimately, the proposition for Ms Vandenbovenkamp on this aspect of the matter seems to be that it is open for an authorised person, who is on notice of a Family Court order conferring on the parents joint responsibility for long term decisions as to educational matters and is on notice that one parent objects to the application for registration for home schooling of the children, to make his or her own judgment as to whether, in the circumstances, the decision that has been unilaterally made (seemingly contrary to the court order) is in the best interests of the child and then to proceed to disregard the court order.

Whether or not there has in fact been a breach, or what sanctions if any the Family Court might impose for such a breach, is not in my opinion to the point. The authorised person is not being asked to “adjudge” anything about breach; nor is it “punishing” any breach of court orders. The authorised person is required to respect the existence of an order of a superior court of record; not to take action that might facilitate or assist in a breach, or frustrate the operation, of such an order.

In my opinion, it could not be a proper exercise of the authorised person’s decision-making power for the authorised person to recommend registration for home schooling when he or she is on notice of the fact that there is a joint parenting order in existence and that one of the parties subject to that order has not consented to the application. It cannot be a proper exercise of a power to facilitate conduct which prima facie is a contempt of court. Ground 1 is therefore made good on this basis and the appeal should be upheld.

The Board submits that if, contrary to its first two arguments, the Education Act purports to permit a parent to apply for registration of his or her child for home schooling where an order made under Commonwealth legislation prohibited the parent from doing so, then there would be an operational inconsistency which engages s 109 of the Constitution. It is submitted that the operation of the Education Act would alter, impair or detract from the operation of the Family Court order and thus the Education Act would be inoperative to the extent to which it purported to permit the parent to apply for registration of his or her child for home schooling. Similarly, it is submitted that where registration of a child for home schooling would frustrate the operation of an order made under Commonwealth legislation, pursuant to s 109 of the Constitution the Education Act would be inoperative to the extent that it purported to permit such registration. Thus it is submitted that the parent is not permitted so to apply and the authorised person must recommend against registration.

Ms Vandenbovenkamp submits that no such operational inconsistency would arise. She submits that the relevant legal question is whether a recommendation by the authorised person in favour of the registration of the children for home schooling acts to alter, impair, or detract from the operation of the Family Court order (citing Bell Group NV (in liq) v Western Australia (2016) 90 ALJR 655; [2016] HCA 21 at [50]-[52]; P v P (1994) 181 CLR 583; [1994] HCA 20).

She accepts that the authorised person’s recommendation might have had that effect if it made directly contradictory provision for parental responsibility (referring to AMS v AIF (1999) 199 CLR 160; [1999] HCA 26) or if it authorised conduct prohibited by the Family Court order (referring to P v P). However it is submitted that the Education Act does not have that effect because the authorised person’s recommendation simply confirms (subject to the Minister’s formal decision) that the parent has met the requirements of the Education Act for registration. Ms Vandenbovenkamp argues that the recommendation does not require the parent to “home school” the child; it merely gives the parent the benefit of the registration scheme, including freedom from potential criminal liability. Ms Vandenbovenkamp argues that the authorised person’s recommendation would no more undermine the Family Court orders than a recommendation in favour of registration made upon application by a grandparent or carer with practical (not legal) custody would undermine s 61C of the Family Law Act (which allocates parental responsibility to the parents subject to court order).

The Board’s response to this is that if the Education Act permitted Ms Vandenbovenkamp independently to take the step of making an application for registration for home schooling, without the consent of Mr Vandenbovenkamp, it would be directly inconsistent with the Family Court order which required the decision to take such a step to be made jointly. Thus it argues that it is no answer to point to other steps that must be taken following the making of such an application before registration for home schooling is complete. It also notes that the making of an application is the only statutory step which must be taken by a parent in the process towards registration for home schooling: the other steps are made by other persons, namely an authorised person and the Minister.

In light of the conclusion reached on the second basis on which ground 1 was argued, it is not necessary for the determination of the appeal to reach a conclusion on the issue of operational inconsistency and, in accordance with settled practice (see Bell Group NV (in liq) v Western Australia at [75]), I do not propose to do so.

Finally, I note that an issue was raised in the course of argument on the appeal as to the power of the Family Court to deal with contempt, particularly in relation to contravention of “parenting orders” within the meaning of s 64B(1) of the Family Law Act. The issue arose in the context of considering the position of the authorised person when making a recommendation on an application where the authorised person was on notice that the parent had, or may have, been made in breach of a joint parenting order.

The parties provided a joint note on the issue. It is not necessary to do more than to note that the Family Court has both power to punish contempt of its power and authority (in effect to the extent of the power possessed by the High Court in respect of contempt of that Court) pursuant to s 35 of the Family Law Act and specific powers pursuant to s 112AP(1) of the Family Law Act to deal with a contravention of a parenting order that involves a “flagrant challenge to the authority of the court”. The parties note that s 112AP(1) has been described as a complete code dealing with contempt. The parties accept that contravention of a parenting order may be dealt with under Div 13A of the Family Law Act (where there is power to vary parenting orders) or, if the contravention is of a more serious nature, as a contempt pursuant to s 112AP of the Family Law Act.

Nothing flows from this in the present case other than to observe that it is understandable that an authorised person might have some concern at being seen to be encouraging or facilitating a breach by one parent of a joint parenting order made by the Family Court.

For the above reasons, I consider that the conclusion of the Appeal Panel was in error. I propose the following orders:

The effect of those orders would be to leave in place the 22 September 2014 recommendation of the authorised person (i.e., that registration for home schooling be refused).

LEEMING JA: I agree with Ward JA.

PAYNE JA: I agree with Ward JA.