Fryre & Pewitt
[2023] FedCFamC1F 688
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fryre & Pewitt [2023] FedCFamC1F 688
File number(s): PAC 2354 of 2017 Judgment of: CHRISTIE J Date of judgment: 16 August 2023 Catchwords: FAMILY LAW – CHILDREN – FINAL PARENTING ORDERS – Best interests of the children – Parental responsibility – Where the presumption of equal shared parental responsibility does not apply as a result of family violence – Where an order for equal shared parental responsibility is in the children’s best interests – Competing applications as to whether the children’s time with the parents should be equal or substantial and significant with the non-primary carer – Where a change to the time arrangements does not address underlying difficulties facing children or the parties’ concerns about the other parent – Where the children have a meaningful relationship with each parent – School attendance – Where the children have not attended school with regularity, frequency and/or punctuality while in the care of either parent – Order for the children to spend equal time with each parent. Legislation: Family Law Act (1975) (Cth) Pt VII, ss 4AB, 60CA 60CC, 61DA Division: Division 1 First Instance Number of paragraphs: 74 Date of last submission: 8 August 2023 Date of hearing: 6-7 July 2023 Place: Sydney Counsel for the Applicant: Mr Keserovic Solicitor for the Applicant: Peter Jurd Lawyer Counsel for the Respondent: Ms Murphy Solicitor for the Respondent: Gonzalez & Co For the Independent Children's Lawyer: Mark MacDiarmid Family Law Specialist ORDERS
PAC 2354 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FRYRE
ApplicantAND: MS PEWITT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
16 AUGUST 2023
THE COURT NOTES THAT:
A.The Applicant is the father of X born 2011 and Y born 2013 (collectively “the children”). Mr Fryre is a G Nation man.
B.The Respondent is the mother of the children and C born 2009. Ms Pewitt belongs to the H Nation and J Nation.
THE COURT ORDERS THAT:
Parental Responsibility
1.The Applicant and the Respondent shall have equal shared parental responsibility for the children.
Live with
2.During term time the children shall live with the mother in week one of each school term and each alternate week thereafter with changeover on Wednesday after school and with the father in week two of each school term and each alternate week thereafter.
Spend time with
3.The children shall spend time with the Applicant:
(a)For one half of the children’s school holiday periods as agreed between the Applicant and the Respondent, and failing agreement for the first half of the children’s school holidays in even numbered years, and for the second half of the children’s school holidays in odd numbered years;
(b)For a period of four (4) hours on the children’s birthdays in each year that the children are not ordinarily with the Applicant pursuant to these Orders as agreed between the Applicant and the Respondent, and failing agreement from 3.00 pm until 7.00 pm;
(c)From 2.30 pm Christmas Day until 2.30 pm Boxing Day in 2023 and each alternate year thereafter;
(d)From 2.30 pm Christmas Eve until 2.30 pm Christmas Day in 2024 and each alternate year thereafter; and
(e)From after school on the Friday before Father’s Day until before school on the Monday after Father’s Day in each year that the children are not ordinarily in the Applicant’s care pursuant to these Orders.
4.The children shall spend time with the Respondent on the following occasions:
(a)For one half of the children’s school holiday periods as agreed between the parties, and failing agreement for the second half of the children’s school holidays in even numbered years, and for the first half of the children’s school holidays in odd numbered years;
(b)From 2.30 pm Christmas Eve until 2.30 pm Christmas Day in 2023 and each alternate year thereafter;
(c)From 2.30 pm Christmas Day until 2.30 pm Boxing Day in 2024 and each alternate year thereafter;
(d)For a period of four (4) hours on the children’s birthdays in each year that the children are not ordinarily with the Respondent pursuant to these Orders as agreed between the Applicant and the Respondent, and failing agreement from 3.00 pm until 7.00 pm; and
(e)From after school on the Friday before Mother’s Day to before school on the Monday after Mother’s Day in each year that the children are not ordinarily in the Respondent’s care pursuant to these Orders.
Changeovers
5.Changeovers shall occur as agreed between the parents and failing agreement changeovers that do not occur at the children’s schools shall take place at the McDonalds Restaurant at B Street, Suburb D, and each parent shall ensure that during changeovers:
(a)Neither parent shall attend at the other parent’s home without the prior approval of that other parent;
(b)Each parent will behave in a civil and courteous manner to the other parents and any other person who may be present;
(c)Each parent will conduct themselves in a child focussed manner;
(d)Each parent will limit their conversation to matters that specifically pertain to immediate matters of the relevant children passing from one parent’s care to the other; and
(e)Neither parent will discuss issues of any controversy between them.
Parenting App
6.Each parent shall:
(a)Forthwith do all things necessary (including, without limitation, paying their share of any subscription fees) to establish and maintain thereafter access for each of them to such parenting app as is agreed between them and failing agreement to the free ‘AppClose’ app (available at (“the app”); and
(b)Unless otherwise agreed in writing or in an emergency, thereafter communicate with each other in relation to all issues concerning the children solely via the app.
General Orders
7.Each parent shall keep the other advised at all times of their residential address, email address and contact telephone number and shall advise the other parties within 48 hours of any change to either their residential address or telephone number.
8.Each parent shall be permitted to communicate directly with the children’s school/s, sporting bodies, and medical practitioners to obtain any necessary information and/or documents about the children’s progress and this Order shall constitute sufficient authority for such communication.
9.Each parent is entitled to attend all school events and extra-curricular activities for the children that a parent would ordinarily be invited to attend.
10.Each parent shall do all reasonable things necessary to ensure that they facilitate the children participating in their scheduled extra-curricular activities during such periods that their children are spending time with them.
11.Each parent shall keep the other advised of the health of the children including any serious illness, medication or hospitalisation of any of the children as soon as reasonably practicable and to allow the child’s other parent to visit the children if hospitalised.
12.Without limitation to any other Order providing for communication between the parents and the children, the children may communicate with the parents and siblings by electronic means at any reasonable time when they are in the other parent’s care and both parents shall do all things necessary to facilitate the children communicating with the other parent and their siblings by electronic means on a regular basis.
13.Both parents will ensure that each of the children attend all required school days for the entire duration of such school days unless prior agreement has been obtained from the child’s other parent or a medical certificate is obtained relating to the absence.
Restraints
14.Without admissions, each parent is restrained from:
(a)Consuming alcohol in quantities that would lead to them having a blood alcohol level exceeding the then current lawful limit from time to time for drivers holding Class C drivers licenses in the state of New South Wales (“NSW”) when the children are in their respective care and for a period of 24 hours prior to such time taking place;
(b)Consuming any prescription medication other than as prescribed;
(c)Attending the other parent’s home uninvited by that other parent;
(d)Enrolling the children in any extra-curricular activities without the prior written consent of the other parent;
(e)Physically disciplining the children;
(f)Denigrating the other parent, the other parent’s extended family, or a person with whom the other parent has a relationship in the presence or hearing of the children, or permitting the children to remain in the presence or hearing of any other person denigrating the other parent, the other parent’s extended family, or person with whom the other parent is in a relationship with, with the parent’s knowledge or in their presence;
(g)Discussing the proceedings or any allegations raised in these proceedings with the children or permitting any other person to do so with their knowledge or in their presence;
(h)Permitting the children having access to any of the documents filed in these proceedings;
(i)Communicating any information intended for the other parent through the children;
(j)Causing the children to be a medium in any way between their mother and their father or between their mother and their father and any other person; and
(k)Discussing major long-term matters with the children, including living arrangements and schooling, until such issues have been raised and discussed with the other parent, a mutual decision has been reached and consent is given by both parents to those matters being discussed with the children or the parties agree to the matter being raised and discussed with the children.
Amended Birth Certificate
15.The parties are to do all acts and things and sign all documents to allow for the Registrar of the NSW Registry of Births Deaths and Marriages (“the Registrar”) to amend the Register as it relates to the child Y born 2013 by noting Mr Fryre as the father of Y born 2013 on an amended Birth Certificate in lieu of the previous form of registration pursuant to s 19(2) of the Births, Deaths and Marriages Registration Act 1995 (NSW).
Change of name
16.The mother is authorised solely to apply to the NSW Registrar of Births Deaths and Marriages and seek that the child registered as Y (female) be now registered as Y Pewitt-Fryre.
17.Pursuant to s 28(5) of the Births, Deaths and Marriages Registration Act 1995 (NSW) the Registrar is requested to register the child’s name in the form specified in the previous Order.
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).
REASONS FOR JUDGMENT
CHRISTIE J:
These proceedings have a long history. There have been proceedings about siblings X and Y before the court since 2017.
While the evidence in the proceedings has traversed risk issues including family violence, excessive alcohol consumption, child abuse and neglect and mental health concerns, the parents have at all times appeared to be in broad agreement that the children should live with one parent and spend time with the other. For lengthy periods, by agreement, time has been shared equally. Notwithstanding appropriate efforts to reach a consensual resolution, the matter has required judicial determination.
Each of the parents presented as weary of the conflict and the adversarial process and, as discussed below, it was plain that the adjudicative process has taken a toll on all members of the family.
BACKGROUND
The parties separated in September 2015 when X was four years old and Y two years old. The parties had an informal agreement after separation which saw the children live in the predominant care of the mother and spend time with the father.
The mother’s son from an earlier relationship, C born 2009, was also a member of that household.
An incident occurred in early 2017 which precipitated a change to C’s living arrangements and the commencement of these proceedings.
On 5 July 2023 final consent orders between the parents of C were made. C will be fifteen in 2023. Relevantly for these parties the orders provide that, subject to his views, C is to spend time with his mother:
4.1 each alternate weekend from 6pm Friday until 6pm Sunday;
4.2 for one half of each school holiday period; and
4.3the 1st and 2nd Respondent shall do all reasonable things necessary to ensure that the time provided for in Orders 4.1 and 4.2 above is, so far as possible, consistent with the time that the 1st Respondent’s other children ([X] born [2011] and [Y] born [2013]) spend with the 1st Respondent.
The children’s mother is a member of the H Nation and J Nation.
The children’s father is a G Nation man.
The children are Indigenous children with H Nation, J Nation and G Nation background.
At the time of the hearing, Y was 9 years old while X was 12 prior to the first day of the hearing.
THE LAW
The making of parenting orders is governed by Pt VII of the Family Law Act (1975) (Cth) (“the Act”). Guided by a list of matters to be considered, the ultimate orders must be ones which have regard to the best interests of the children as paramount pursuant to s 60CA of the Act.
Parenting orders include orders about the time which children are to spend with their parents and orders about decision making responsibility (parental responsibility) for the children.
In making parenting orders I am to apply the presumption that it is in the best interests of the children that their parents have equal shared parental responsibility pursuant to s 61DA of the Act
THE EVIDENCE
The applicant mother relied on:
(a)Case outline filed on 3 July 2023;
(b)Affidavit of Ms Pewitt filed on 29 June 2023;
(c)Amended Response filed on 27 August 2019;
(d)Notice of Risk of the mother filed on 24 July 2017;
(e)Family Report by Ms E dated 25 September 2018;
(f)Updated Family Report by Ms E dated 9 September 2022; and
(g)Applicant Mother’s Tender Bundle.
The respondent father relied on:
(a)Case outline filed on 5 July 2023;
(b)Amended Initiating Application filed on 30 August 2019; and
(c)Affidavit of Mr Fryre filed on 4 July 2023.
The Independent Children’s Lawyer (“ICL”) relied on:
(a)Case outline filed on 6 July 2023;
(b)Family Report of Ms E filed on 25 September 2018;
(c)Child Responsive Program Memorandum of Ms F filed on 18 May 2021;
(d)Further Family Report of Ms E filed on 9 September 2023; and
(e)ICL’s proposed Minute of Order filed on 5 July 2023.
CONSIDERATION
Issues
The Act refers, in s 60CC(3)(h), to the need to consider the right of Aboriginal children to enjoy their Aboriginal or Torres Strait Islander culture, including the right to enjoy that culture with other people who share that culture. Importantly, s 60CC(3)(h) of the Act refers to the need to consider the likely impact of any parenting orders on that right. None of the orders I am being asked to make will impact on that right, so, while their Indigenous culture it is central to these children’s identity (and that of their parents), it is not central to my determination of the issues as between the parents.
In determining what orders will best meet the interests of the children it is necessary to address some of the factual issues in the case to inform my consideration of the relevant matters pursuant to s 60CC of the Act. Those include:
(a)Was the father violent to the mother during their relationship?
(b)Has the father been violent to the mother since the end of their relationship?
(c)Have the children been exposed to family violence?
(d)Is there a risk that the children will be exposed to family violence and if so how might that risk be mitigated?
(e)Is the mother’s parenting capacity effected by alcohol use?
(f)Has either parent failed to facilitate the children’s school attendance being at an acceptable level?
(g)What is the nature of the children’s relationship with each of their parents?
(h)Does a particular living arrangement present as more likely to bring about stability for the children?
Parental Responsibility
The mother sought an order for sole parental responsibility. The father sought an order for equal shared parental responsibility. The ICL sought an order for equal shared parental responsibility. For reasons that follow, this is a case where the presumption does not apply. If I am to make an order that the parents have equal shared parental responsibility it would have to be on the basis that I had, after considering the relevant factors determined that the order was in the best interests of the children.
One of the advantages of an order for equal shared parental responsibility is that it enables the parents to engage in the most significant long-term decisions for their children on an equal footing. Children benefit from that engagement.
The factors that may operate to make such an arrangement contrary to the children’s interest include: where the parents cannot communicate, where communication is productive of conflict or where one parent may not properly engage, causing delay in the making of important decisions.
I find that, to date, both parents have, to a greater or lesser degree, participated in decision making concerning issues of long term significance to the children. These have included decisions such as change of school and selection of high school for X. While the parties have experienced a conflictual relationship from time to time it is not the case that the relationship is always conflictual. Perhaps, significantly, making long-term decisions for the children has not been the subject of significant controversy.
The parents have agreed to use a “parenting app” to communicate about decisions relating to the children. I accept the evidence of the Court Child Expert that an order for sole parental responsibility may function to attenuate the relationship between the children and the parent who does not have parental responsibility. It is plain that the children require both of their parents to be actively involved in their lives. On balance I take the view that this should include being involved in long-term decisions.
I appreciate that this will require communication but on a practical level the amount of communication that will be required to implement the arrangements for time sought by either party is well in excess of that which may be required to share parental responsibility. Accordingly, I will accede to the application of the father and ICL and, consistent with the expert evidence, make an order for equal shared parental responsibility.
Time
The parties remained at issue during the trial about what time arrangements would best promote the children’s interests. Each parent submitted that their own proposal would increase stability and decrease conflict.
The father’s proposal was a continuation of the present equal time arrangement.
I clarified the mother’s proposal during the hearing and to the extent that it departed from the orders sought in her case outline. I understood her to be seeking an order that the children spend time with the father each alternate weekend during school term and half the school holidays. When asked about the ICL’s more extensive Minute of Orders which provided for a longer block and for time in the second week overnight, counsel for the mother indicated her client would not support overnight time in the “off week” and preferred the time be from after school until after dinner.
The ICL’s minute proposed an arrangement whereby the children lived with the mother in term times for nine days each fortnight, one block of four days and a single day in the “off week” and half school holidays.
Effectively, the scope of the dispute was whether the time was equal or substantial and significant. For the reasons which follow I found it difficult to understand how a change to the amount of time would address the underlying difficulties.
Family violence
It is important that I have regard to the evidence about family violence as it is part of the mother’s case that the father has been violent to her. I pause to note that even if I were to accept her evidence, she does not say that his conduct should prevent the children spending substantial and significant time with him. I must infer from that that she does not seek a finding from this Court that the children will be at direct risk of either family violence or exposure to family violence while in the care of the father.
That is not the end of the inquiry since, if I find that there has been family violence perpetrated by the father towards the mother, then I must consider how it may impact on the proposal for equal shared parental responsibility and, subject to the caveat earlier discussed, how it may impact on the amount of time in the father’s care and any arrangements which may be put in place to ameliorate any potential risk that the children may be prospectively exposed to family violence.
In evidence before me was a COPS record which set out the basis for an application for an apprehended domestic violence order which was subsequently withdrawn but also formed the basis for a charge of intimidation and destroy/damage property. The father was convicted of those charges and received a fine and was placed on a bond.
The father attended the home of the mother and the children in late 2013 and the parties had an argument about cancellation of an internet service. The COPs record reads:
...after about five minutes of verbally discussing the issue, the conversation became heated. The [father] yelled at the [mother] stating that she was trying to ruin his upcoming holiday and called her an “Arsehole” in front of her three children who were present at this time. The [mother] picked up her wallet from inside the kitchen and walked out the front door at which time the [father] briefly followed the [mother] ordering her to return inside. The [mother] ignored this request and continued to the nearby shops to allow things to cool down between her and the [father]. The [mother] returned to ……. about five minutes later and observed the [father] to be loading items into his motor vehicle. The [mother] walked past the [father] ignoring him at which time the [father] continued to call the [mother] an “Arsehole”. The [mother] again ignored the [father] and walked through the front door closing and locking it behind her. The [father] approached the front door and began banging on the door, yelling, “Let me in”. The [father] continued this behaviour for about two minutes during which time the [mother] continually replied, “Go away”. The [mother] walked to the rear door to the location and also locked it from the inside. This door has a wooden board measuring about fifty centimetres by fifty centimetres screwed to the door to cover what was one a glass window pane. The [father] walked around to the rear door and also began banging on this door to the extent where the [mother] observed the door to thrash backwards and forwards. The [mother] remained in the kitchen whilst the [father] was banging on the door. The [father] continued this behaviour for about one minute. The [father] struck the wooden board screwed to the door which has ripped it from its fixing to the door causing the wooden board to end up on the other side of the dining area some two metres away. The [father] put his arm through the hole now created in the door and manipulated the internal lock to allow himself access to the house. The [father] entered the house and yelled at the [mother], “How dare you lock me outside. I was trying to get my stuff. You know I need my stuff”. OFFENCE 1 – MALICIOUS DAMAGE The [father] walked over to the opposite end of the kitchen/dining area from where the [mother] was standing. The [father] with both hands ripped a shelf which was attached to the wall from its fixing and threw it on the ground. The actions of the [father], whilst not actually damaging the shelf has temporarily impeded with its function as a shelf. OFFENCE 2 – MALICIOUS DAMAGE The [father] began throwing other items towards the [father] which consequently hit the door the [father] entered through such as a basket weave hamper basket and a pram. The [father] picked up a wooden chair and motioned towards the [mother] whilst holding the chair. The [father] threw the chair onto the ground near the oven in the kitchen, to the right, about fifty centimetres away from where the [mother] was standing. The actions of the [father] caused a leg of the wooden chair to brake [sic] away from the chair rendering it destroyed. OFFENCE 3 – MALICIOUS DAMAGE The [father] walked over to the light fixture covering the dining area of the kitchen which had a glass chandelier hanging from it. The [father] grabbed the chandelier with both hands and pulled on the fixture in a downwards motion. The actions of the [father] caused the chandelier to shatter into a number of pieces thus being destroyed. OFFENCE 4 – INTIMIDATION The [father] continued to yell at the [mother] stating that she had ruined his holiday and his life. The [father] further stated that the [mother] had caused “all of this”. The [father] walked over to the [mother] whilst yelling at her with raised, clenched right fist. The [father] stood as closely as fifty centimetres away from the [mother] whilst doing so. The [mother] became fearful that the [father] was going to hit her at this time.
(As per the original)
There had been a previous incident between the parties in 2010 where the COPS records indicated the police had some difficulty determining who had been the aggressor in an incident between the parties.
The father denied any violence in his affidavit but conceded at least some of what appeared in the 2013 COPS record. I am satisfied that the incident itself meets the definition of family violence in s 4AB of the Act.
I am not otherwise in a position to make a finding about the remaining contested incident. I was concerned that the mother made what (if accepted) would be serious allegations of more recent origin but that these were not the subject of testing via cross-examination. Accordingly, I cannot make a finding about them.
I do think that the father has failed to appreciate the importance to the mother of placing boundaries around their interactions and I will make orders that do not permit either parent to attend at the home of the other parent, except when invited.
Part of my disinclination to make orders as sought by the mother arises from the increased number of changeovers (although I note that the informal arrangements the parties have implemented will have had multiple changes in care each week during the father’s time). The mother’s proposal would involve the children in an additional mid-week after dinner changeover. If, as discussed below, the children do not want to decrease their time with their father then an order that they return to his care after they have spent an afternoon/evening with him may prove counterproductive.
Children’s views
Y was eight years old when she met with the Court Child Expert. While her age is such that any view she expressed would be material it would not, without more be likely to be determinative. The Court Child Expert recorded:
129.[Y] discussed her parenting arrangements, reciting her schedule, and stated that she did not remember the arrangements ever being different. She said that she would like the arrangements to remain the same as it is, as it provides for her to have weekends with each of her parents.
X was 11 when interviewed. When X met with the Court Child Expert in July 2022 (after the equal time arrangement had been in place for a couple of months) she recorded at [123]: “[X] said that he prefers to spend equal time in each of his parents’ care. He said that this is what his parents want too”.
The Court Child Expert indicated it would be appropriate to approach the children’s expressed views with caution as she was concerned that they may have been influenced by exposure to the parental debate. X’s views echoed those of his father. While I accept that X’s views may be influenced by his father’s views, I cannot discount them on that basis alone given that X appears to have a good relationship with both parents and has experienced firsthand what it means to live in an equal time arrangement. For that reason I will place weight on his view and to a lesser extent that of his younger sibling.
Children’s relationships with each parent
I find that the children have a good relationship with each of their parents and will continue to have a meaningful relationship with each of them whether I make the orders sought by the mother or the orders sought by the father.
Parenting Capacity
School attendance
The Court Child Expert saw merit for the children in a change which promoted their stability.
One of the most significant issues for these children related to school attendance. Unfortunately, the children have not attended school with a regularity or frequency as would be acceptable. They have also often been late to school.
It was not immediately plain where the responsibility for this issue lay and when I reserved my decision I gave the parties leave to tender any further information from the documents produced on subpoena by the children’s schools and to make any further submissions which arose out of tender of those documents.
I received a document entitled “[X] - Attendance 2023”. In the first half of 2023 to 30 June 2023 X was absent for over 30 whole days and nearly 20 partial days. Of the whole day absences five have adequate/appropriate explanations – the remainder are classified by the school as “unjustified” or not classified.
On 6 May 2022 a Senior Judical Registrar made orders which provided for the children to live with their parents in a week about arrangement with changeover on a Wednesday after school.
Looking at the absences from school for X for 2023 and understanding that pattern of care (as set out in the orders) it would appear that X was in his mother’s care on 1 February 2023 (which was a Wednesday) as the records indicate that on that day she informed the school X was sick. This pattern also accords with [119] of the mother’s affidavit.
The pattern in the first half of 2023 is accordingly:
·Early February (father’s care): X did not attend school on Thursday and Monday. He was late on Wednesday. No reason was recorded.
·Mid-February (mother’s care): X did not attend school on Thursday and Monday. He was late on Friday, Tuesday and Wednesday. No reason was recorded.
·Mid-February (father’s care): X was late on Thursday. He was absent on Friday, Monday and Tuesday. No reason was recorded.
·Late February–Early March (mother’s care): X was absent on Thursday and late on Wednesday. No reason was recorded.
·Early March (father’s care): X was absent on Friday and late on Monday. No reason was recorded.
·Mid-March (mother’s care): X was absent on Thursday and late on Monday. No reason was recorded.
·Mid-March (father’s care): X was absent on Monday and late on Wednesday. No reason was recorded.
·Late March (mother’s care): X was absent on Friday and late on Monday. No reason was recorded.
·Late March-Early April (father’s care): X was late on Friday and absent on Monday. No reason was recorded.
·Early April (mother’s care): X was absent on Thursday. No reason was recorded.
·New South Wales (“NSW”) Term 1 school holidays commenced on Friday 7 April and Term 2 commenced on Wednesday 26 April. X attended the first day of Term 2 while in the mother’s care.
·Late April-Early May (father’s care): X was absent on Thursday, Friday, Monday and late on Wednesday. No reason was recorded.
·Early May (mother’s care): X was late on Monday and absent on Tuesday. No reason was recorded. X was absent on Wednesday with the comment recorded as “Keeping at home due to Learning at Home – no symptoms”. This is an explained absence.
·Mid-May (father’s care): X was absent on Thursday and Friday with the comment recorded as “work from home” and “Learning from Home”. These are explained absences. X was late on Tuesday with no reason recorded.
·Mid-May (mother’s care): X was late on Thursday and absent on Friday and Monday. No reason was recorded.
·Late May (father’s care): X was late on Thursday and absent on Friday, Monday and Tuesday. No reason was recorded.
·Early June (mother’s care): No recorded absences.
·Early June (father’s care): X was late on Wednesday. No reason was recorded.
·Mid-June (mother’s care): X was absent on Friday and late on Wednesday. No reason was recorded. X was absent on Tuesday on “School Business” for a sporting event (the absence is plainly explained).
·Late June (father’s care): X was absent on Thursday, Friday and Monday. No reason was recorded.
·The final day of NSW Term 2 was Friday 30 June. X did not attend while in the mother’s care. While no reasons were recorded it may be that the mother informed the school of the reason after the documents had been returned on subpoena.
What is plain is that both parents have been responsible during weeks where X has been either late or absent from school without justification. The mother said in her affidavit that she contacts the school when the children are absent. While she has contacted the school when the children have been absent, there are numerous unjustified absences during her time.
X’s 2023 Semester 1 School Report says:
[X’s] current attendance rate is 70% which is below the expected attendance rate of 93%, his regular absences from at [sic] school, means that he is missing significant amounts of explicit instruction which provides the foundation for his continuing progress in all key learning areas.
I have not analysed Y’s attendance records but note that her 2023 Semester 1 School Report says: “[Y] is encouraged to improve her rate of attendance as her regular absences and late arrivals impact explicit literacy and numeracy instruction. An improvement in her rate of attendance could result in improved learning outcomes”.
I cannot on the basis of the evidence before me find that one parent has a greater capacity to facilitate the children’s regular school attendance. The ICL reached the same conclusion.
Even if the above analysis is in error – the absences are so uniform across the weeks that I can confidently conclude that both parents have failed to ensure X’s attendance (and it would appear, that of Y). The parents did not take the opportunity to make any further submissions on this topic after X’s 2023 attendance records came into evidence following the conclusion of the hearing and having made an order allowing for the opportunity for same.
It follows that I cannot determine the application by reference to one set of orders (or the other) being more likely to promote the children’s school attendance. This is unfortunate since this is a significant issue for the children and needs to be the focus of attention by each of the parents.
Capacity more generally
When the Court Child Expert gave evidence she identified two bases for her recommendation:
(1)Her view that the mother was better able to promote the children’s relationship with the father; and
(2)Her view that the mother may be the parent better able to promote stability through day to day routines and school attendance.
As previously discussed, had the evidence established the latter of those two matters then it would have been highly persuasive in the ultimate result, but that was not the case.
I have considered whether the evidence, seen as a whole, establishes that the mother is the parent better able to promote the children’s relationship with the other parent. There is some evidence to support that conclusion. The mother has, over a long period of time, provided the father with funds when he has requested them in order to ensure that the children had stable accommodation and other expenses paid for when the father was unable. She gave evidence about this in a manner which was candid. She was plainly exasperated that the father had used her as - to adopt her expression - a “pay day lender” but she was prepared to cooperate in the interests of their children. However, as against that during her evidence she described the father’s relationship with the children as more like an “uncle” and it was plain that she did not fully appreciate the children’s natural affection for him and described the father’s concept of love [for his children] as “quite immature”.
The Court Child Expert was concerned about the father’s actions in unilaterally retaining the children and failing to facilitate time – including withholding the children from school (to prevent the mother collecting them). The father says his actions were taken protectively against a background where the mother has historically experienced challenges associated with excessive alcohol consumption and he was concerned to prevent the children being exposed to the consequences of same.
I am not able to make a finding about whether the children were objectively at risk in January 2022 such as to justify the father’s actions but I am able to find that he acted on a subjective belief which was grounded in objective historical experience. I have taken into account the concerns C expressed to the Court Child Expert and the father’s text messages concerned about the mother arguing with X after she had consumed alcohol. I consequently find the father’s actions in retaining the children were high handed and misguided but not malicious.
The father must, as a consequence of these proceedings, accept that if there is a court order in place he is bound by its terms, save in an emergency situation, the children must be in the care of the parent mentioned in the orders. If the orders in his view require amendment he must apply to this Court to amend them.
At the trial the issue of the informal arrangements between the parents for time (other than that provided in the orders) arose during cross-examination. It was not controversial that the children had been going to the mother’s home after school (her home being reasonably proximate to the school). The father was then collecting the children from the mother’s home after work.
This cooperative approach to parenting was (ironically) characteristic of the parties. The father was upset that it was, in his view, being used against him the in the proceedings. In response he suggested that he would in future make sure that the children were cared for by a member of his family. This was a knee jerk reaction as the children coming home to the mother’s home clearly suited the mother, father and children. It was a child focused arrangement.
I indicated above that both parents appeared to be weary (and wary) of the court process. The mother’s evidence during cross-examination was spirited and echoed the comments of the Court Child Expert in so far as it appeared to be given towards the end in a somewhat “dysregulated manner”. She said that the father has had six years to demonstrate that an equal time arrangement could operate in the children’s interests. Until at least 2019 the mother herself was seeking an equal time arrangement. It is not, in my view, the balance of time which will resolve each parties’ underlying concerns about the other parent’s parenting capacity.
Hopefully, when the parties are not engaged in litigation with the aim of achieving the outcome they each seek they will better settle into the day to day cooperation that they are plainly capable of.
It follows that the two bases advanced by the court child expert as being the foundation for her recommendation that the children live with the mother and spend time with the father are not established by the evidence following cross-examination. Accordingly, the orders which would seem to best promote the children’s stability and recognise both the closeness of their relationships with each parent and the importance of those relationships for the children are a continuation of the existing shared arrangement.
With final orders in place the children and parents will have certainty and each household can concentrate on arrangements which will ensure that the children attend school, except when unwell, and on time.
Historical evidence of alcohol misuse
The father accepted that the mother did not presently have a problem with excessive alcohol consumption. The issue became relevant only for the way in which it explained past conduct as opposed to present risk.
The mother in her evidence indicated that she has decided not to drink alcohol. If that remains her position then there will be no impact on her parenting capacity arising from this issue.
Birth certificate and change of name
The father is not listed on Y’s birth certificate. The parties agree that he should be listed as the father on her birth certificate and I will make an order to that effect.
The children currently have different surnames from one another. Their sibling C has the names of his mother and father and the parties in this case both agree that their children should also have the names of each parent. I will make orders to facilitate this change.
CONCLUSIONS
Having considered the children’s relationships with each parent, their views, the evidence about issues relating to capacity and evidence about family violence, I have concluded that each parent may have legitimate concerns about various aspects of the conduct of the other party historically none of which is likely to be addressed by changing the balance of days spent in the care of the parents.
As I commented at the hearing, while court cases about parenting arrangements tend, for obvious reasons, to focus on weaknesses and vulnerabilities, each of these parents has much to offer these two children.
I certify that the preceding seventy-four (74) numbered paragraphs is a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 16 August 2023
0
0
0