Boulton & Boulton (No 2)
[2023] FedCFamC1F 492
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Boulton & Boulton (No 2) [2023] FedCFamC1F 492
File number(s): SYC 1491 of 2021 Judgment of: ALDRIDGE J Date of judgment: 6 June 2023 Catchwords: FAMILY LAW – PARENTING – INTERIM – Father’s application to vary time spent with children – Where the orders are sought to assist with the children’s school refusal – Where the application is opposed by the mother and the Independent Children’s Lawyer – Where the evidence does not suggest a considerable degree of cooperation between the parents – Risk in changing circumstances – Lack of evidence – Best interests of the children to adjourn the application to the final hearing. Division: Division 1 First Instance Number of paragraphs: 24 Date of hearing: 6 June 2023 Place: Sydney Counsel for the Applicant: Mr Mathews Solicitor for the Applicant: Broun Abrahams Burreket Counsel for the Respondent: Mr Cummings SC Solicitor for the Respondent: Pearson Emerson Family Lawyers Solicitor for the Independent Children’s Lawyer: Phillips A Wilkins & Associates ORDERS
SYC 1491 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BOULTON
Applicant
AND: MS BOULTON
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
6 JUNE 2023
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed on 19 May 2023 is adjourned to the final hearing commencing on Monday, 14 August 2023.
2.Costs are reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
This is an Application in a Proceeding for interim parenting orders in a matter that is fixed for final hearing on 14 August 2023. The parties have three children but the application only concerns two of them.
X was born in 2010 and currently lives with the mother as do the other children and spends unsupervised time with the father in accordance with orders made by Altobelli J in May 2022, as subsequently varied by a Senior Judicial Registrar.
Z and Y are currently seven years old and attend E School. Earlier this year a difficulty arose with each of them attending school and from early 2023, Y has missed more than 40 days and Z has missed more than 25 days of school. It is obvious from all the evidence in the proceedings before me that there is a real difficulty with their school refusal which is deep seated and pervasive.
In response to that failure to attend school, the father brings the present proceedings in which he seeks orders in the alternative. The first is effectively that he collect the two children from the mother, take them to his home and then to school each school day. Alternatively he suggests that there be a change of residence and that the children live with him at least during the school week. That would be a significant change for the two boys given that the current orders provide for them to see their father from conclusion of school to 7.00 pm each Wednesday and each Saturday from 9.00 am to 5.00 pm, that is to say they do not spend any overnight time with him.
The application is opposed by both the mother and by the Independent Children’s Lawyer (“the ICL”), although the alternative position is that the application should be adjourned until the final hearing.
Two Family Reports have been prepared by Dr L, with the last being in December 2022. The court does not have the benefit of any expert evidence on the present application although I have been taken to notes made by the staff at E School as to conversations they have had with the boys’ psychologist.
It is fair to say that the family has been set with some difficulties. Justice Altobelli recorded in his reasons that X’s mental health had significantly deteriorated after April 2021 which led to multiple episodes resulting in her being hospitalised in relation to her mental health. There seems to be, although X was hardly mentioned during the present application, an improvement and that there are no difficulties with her current school attendance.
In addition, in his Honour’s reasons, his Honour said:
31.The parental relationship is characterised by intractable conflict between the parents which has not abated over time. Both parents manifested in the evidence a critical attitude towards the other parent, including about their parenting capacity. The father described the familial conflict as being “toxic and horrible”. The evidence supports the father’s assessment.
So far, little seems to have changed.
The particular problem with the school refusal was not that the children would refuse to get into their school uniforms and go to school with the mother, but that they would not either get out of the car, or if they did, they would not enter the school grounds. This was despite the best efforts of the staff of the school, who meet would the children outside the school and attempt to persuade them in.
The children have been seeing a psychologist, Ms W, for some time and she too has become involved in giving advice as to try to have the children attend school. Amongst the suggestions that were made, is that the boys should be denied screen time (they seem to be keen games players) if they do not attend school, and that screen time be used as reward for when they do so.
According to the evidence of the mother, she is following such a plan, although it is plain from the submissions made on behalf of the father that he does not accept that to be so. If there is indeed a dispute about that, that is not something that can be resolved on an interim application.
The other suggestion, one particularly highlighted by the father, was Ms W’s suggestion that it may well be of assistance if people other than the mother could actually deliver the children to the school. In that context, she suggested that the father might be such a person. No doubt Ms W as the psychologist treating the boys would have considerable knowledge of their circumstances, I cannot assume that she has all the access to the material in this case including the findings of Altobelli J, one of which I have already quoted. It is also noteworthy that in those proceedings, albeit interim proceedings, his Honour received the benefit of limited cross‑examination and made positive findings of family violence against the father.
One of the issues that immediately arises from the father’s orders is that even if there was someone available to supervise the changeovers, picking the children up from where they live with the mother and dropping them back is going to involve a significant amount of contact between them and for it to work well would seem to require a considerable degree of cooperation between them. The evidence does not suggest that that is likely.
Accordingly, whilst Ms W’s suggestion that the father may be such a suitable person, the weight to be given to that opinion must be tempered by the lack of evidence as to Ms W’s full knowledge of the circumstances of this family and the findings of the court.
The suggestion is made that the mother is not doing all that she can to have the children attend school. Indeed, it was said more than once that she has failed to cause the attendance of the children at school, which is to suggest that it is largely her fault, although what the particular fault was in her failure to cause the children to go to school was not identified, other than to suggest that there is a failure to follow the recommendation of Ms W or of the school.
Of course, some of the recommendations identified by the school were a statement of what is desirable rather than how to achieve the outcome. For example, saying if the children do not start attending the school by the end of Term 1, it will be more difficult to get them back in Term 2, may be a fairly obvious and appropriate view but it does not of itself provide any assistance in how you get the children to school by the end of Term 1.
Importantly for present purposes, the father does not identify how he would cause the children to attend school. He does not say what he would do if Y or Z refused to get out of the car. He does not say how he would approach them prior to going to the school in order to assist them to attend. There is simply an assumption in his evidence and in the submissions made on his behalf that if he did it, it would work. That is not an assumption I am prepared to make on the evidence as it is at present.
I accept for the purpose of this application that the children have a good and enjoyable enough time when they are with the father but clearly there are difficulties arising from changeover as evidenced from the notes of supervisors at changeover times, which may well and indeed, most likely, have their roots in the conflict between the parties and the children’s involvement in it.
As I have said the father’s proposal would require at least 10 additional changeovers per week. It is unknown how the boys, or indeed all three children, would react to the sudden increased involvement of the father in their lives. The children could well consider that he is doing this because the Court has formed the view that the mother is no longer capable of properly managing the care of the children, whether that would have an adverse impact upon them, their relationship with each other, their sister, their mother or indeed their father, is entirely unknown and speculative.
There is no doubt that these children are caught in the middle of a very difficult time through no making of their own, but by way of their parents. The court has to move very cautiously in not making things worse for these children. In the absence of expert evidence, I am not prepared to speculate that what I regard is a significant change in the circumstances of the children would not overall have an adverse effect on the children. There is a need, I think at this stage, to look more widely than just getting the children to school. Although there is no evidence that suggests the father’s involvement of itself would simply have that effect. Significantly, I take into account that the children are having reasonably limited contact with the father and a sudden increase in time is risky.
There is an issue between the parties as to the benefits of the move from supervised to unsupervised time, although there is at the least a temporal link between the school refusal and the lifting of supervision, but that is a matter for a final hearing.
Finally, it is accepted that there has been a significant improvement for Y in that he is now spending a number of full days at school. The improvement in relation to Z is nowhere near as marked but he has at least now entered the school gates and spent some time at school on some days.
It is a very difficult situation where there is such a serious and pervasive school refusal such as this and again, I am not persuaded that to act precipitately is going to be of benefit to them. Giving weight to these matters, but particularly the risks involved with a change of circumstances, the lack of evidence of how the father would fare any better, the lack of expert evidence on the question, the closeness of the final hearing and the recent improvement in the situation, particularly for Y, persuade me that the course that is in the best interests of the children, is to adjourn this application to the final hearing.
The costs of the parties and the ICL are reserved.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 19 June 2023
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