Jennett & Ayrton
[2021] FedCFamC1F 115
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jennett & Ayrton [2021] FedCFamC1F 115
File number(s): SYC 8671 of 2020 Judgment of: REES J Date of judgment: 11 October 2021 Catchwords: FAMILY LAW – PARENTING – Review of a Senior Judicial Registrar’s decision – Where the mother sought to review orders for an equal time parenting arrangement – Application dismissed. Division: Division 1 First Instance Number of paragraphs: 55 Date of hearing: 7 October 2021 Place: Sydney Counsel for the Applicant: Mr Lethbridge SC Solicitor for the Applicant: Bundock / Palmer Lawyers Counsel for the Respondent: Mr Dura Solicitor for the Respondent: Doolan Callaghan Family Lawyers ORDERS
SYC 8671 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS AYRTON
Applicant
AND: MR JENNETT
Respondent
ORDER MADE BY:
REES J
DATE OF ORDER:
11 OCTOBER 2021
THE COURT ORDERS:
1.That the application of the mother filed 21 April 2021 be dismissed.
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 Ayrton & Jennett has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Rees J:
Ms Ayrton ("the mother") and Mr Jennett ("the father") are the parents of twins, X and Y who were born in 2009 and are almost 12 years old. The parents separated finally on 3 May 2019.
The mother has another child, Z aged eight years who lives with her mother and spends time with her father by agreement. Z lived with the mother and the father from May 2013 until the parties separated in May 2019, a period of six years.
The twins currently live with each parent in an equal shared time arrangement pursuant to orders made by Senior Judicial Registrar McNamara on 16 April 2021. Those orders are now the subject of an application by the mother to review.
Thus the matter before me proceeds by way of hearing de novo in circumstances where the parties have agreed that a single expert will prepare a report which is expected to be available before 9 December 2021 and they have agreed to attend mediation on that date.
Whilst there is some common ground between the parents, there are significant issues in relation to which they give different accounts and it is not possible to reconcile those issues in this forum. Those issues include:
·The father's allegation that the mother suffers mental health issues, overuses alcohol and uses illicit drugs.
·The father's allegation that the mother has failed to properly disclose the extent of her mental health and other issues, both in these proceedings and to her treating therapists.
·The father's allegation that the mother makes arrangements for the children without consulting him and for events during the time they live with him.
·The father's allegation that the mother has refused to allow him to continue a relationship with Z.
·The mother's allegation that the father suffered mental health difficulties around October 2020.
·The mother's allegation that the father has failed to support the children's schooling such as homework supervision.
·The mother's allegation that the father does not communicate with her about the children's day to day arrangements and organises commitments for them without consulting her.
·The mother's allegation that the father treats her disrespectfully.
·The mother's allegation of coercive and controlling behaviour by the father.
Until such time as there is expert evidence before the Court, all relevant material has been gathered and there is an opportunity to cross-examine, none of those issues can be determined.
A further difficulty arises from the fact that no Independent Children's Lawyer has been appointed and there is no reliable or independent evidence before the Court of the views of these 12 year old boys.
It is, however, instructive to look at the history of the parenting arrangements since the separation.
On separation, the mother left the family home in Queensland and moved to Sydney, leaving all three children in the care of the father in Queensland. Thus from 5 May 2019 until 19 July 2019 the boys lived with the father and the mother visited them. Z also lived with the father for about a month. The mother then collected Z but left the boys with the father.
From 19 July 2019 the children lived, by agreement, with the mother and the father remained in Queensland to finalise their financial affairs. He visited the boys in Sydney.
The father returned to Sydney in September 2019 and the boys spent six nights each fortnight with him.
The boys lived with the father for four weeks in December/January of 2019/2020.
From February 2020 until 31 October 2020, the boys lived in a week about shared arrangement with each parent.
The mother collected the children, at the father's request, on 31 October 2020, when he was unwell and thereafter the mother refused to revert to the week about arrangement. The mother proposed that the children live with the father for five nights in each fortnight. The father did not agree.
The father commenced proceedings which were first returnable on 15 December 2020 when orders were made by consent, which provided for an interim arrangement, pending hearing of the father's application, whereby the children lived with the father for five nights each fortnight during the school term and for a week about arrangement in the holidays.
On 16 April 2021, the Senior Judicial Registrar made the orders under review.
Thus, since the start of the 2020 school year in February 2020, the boys have lived in a week about arrangement except for the period from 31 October 2020 to 16 April 2021.
The parent's homes are in close proximity.
The mother now seeks orders that would provide for the boys to spend five nights each fortnight with the father, spending Wednesday night with him in the first of the two weeks and from Thursday after school until school starts on Monday in the second week. She proposes that school holidays be equally shared.
The father seeks to maintain the current week about arrangement.
The mother relied on an affidavit sworn by her on 9 September 2021 and an affidavit of her therapist, Ms B, sworn on 16 March 2021.
Ms B is not a single expert. She is permitted to give evidence about treatment and prognosis. Such of her evidence as exceeds those parameters has been disregarded.
I am unable to place much weight, in these proceedings, on Ms B's opinion as to the mother's mental health or her prognosis in circumstances where there is no evidence that she is aware of the mother's history as recounted by the mother on two admissions to psychiatric facilities, a history which encompasses admissions in relation to threats of self-harm, suicide attempts, alcohol misuse and use of illicit substances. Further, the matters upon which Ms B bases her assessment of the mother are those matters which are the subject of contest between the parties and Ms B has accepted and relied on the mother's version of those events.
In 2019, the mother visited the maternal grandmother and, on entering the home, found her mother dead. These events greatly distressed the mother. On 12 December 2019, the mother admitted herself to C Hospital.
The mother deposes to particular problems for X on Wednesday 1 July 2020 when X told her "I want to end it all. It feels like it is all my fault. You and dad breaking up and nanny and [the dog] dying". The mother arranged for X to speak to D Counsellors and made an appointment for X to see a psychologist on 8 July 2020. The mother telephoned the father and told him what had happened and the father spoke to X.
The mother took the children camping on the following weekend. During the weekend, X said "we should all jump off a cliff".
The children were in the father's care from Sunday 5 July 2020. The mother was aware that the father planned to travel with the children to Queensland for a holiday with the children's cousins on a rural property for a week.
On Monday 6 July 2020, the mother's solicitor wrote to the father's solicitor, advising of the appointment with the psychologist on 8 July 2020 and asking the father to delay the holiday and take X to the appointment.
The letter concluded:
Please urgently confirm that the above arrangements are suitable to your client. In the event of no agreement, we shall take instructions to an urgent application to the court.
The father deposed that he telephoned the psychologist who rescheduled the appointment for the following week and that the psychologist told him that it would be good for the boys to go on the holiday.
There is no evidence of any further statements by X in relation to self-harm.
Records produced by the children's school in relation to Y raise concerns about Y's emotional health.
On 9 June 2020, the counsellor noted that Y was very affected by his parents' ongoing conflict. The counsellor noted:
Mum said that Dad went through her things when he came over one time and could have cameras in the house too. Y is very worried about his mum and how sad and upset she feels, he thinks she doesn’t feel safe any more at home – him not feeling safe. Unable to share those feelings with mum – it will make her sad.
(As per the original)
On 26 June 2020, the counsellor noted that Y said he could not go on a sleepover because "mum is worried I'm not safe".
On 14 August 2020, Y told the counsellor that he sets his alarm for 3.30 am so that he can get up and check that his mother is safe. The counsellor noted "Happy at Dad's but still worries about Mum."
On 14 September 2020, the counsellor noted, that Y looked happier but was still quiet. She noted, "Still waking up at 3.30 am to check on mum".
Thus it is clear that there have been times when there were concerns in relation to the emotional state of both the children. Whether those concerns continue is not clear. It does not appear from the affidavit evidence of the mother that there have been any incidents which have caused her to be concerned about the children in 2021.
However, I do not accept the mother's contention that all of those issues arise because of the shared care arrangement. Nor do I accept the primary thrust of her case that an arrangement whereby the children spend five nights with the father rather than seven will have a beneficial effect on the children's psychological health.
Nor was it explained why that will be the case.
In the Case Outline document filed on her behalf, it is conceded by the mother that the children will benefit from a meaningful relationship with both parents and that the orders sought by each parent will facilitate the continuation of those relationships. The mother concedes that the children have a positive relationship with the father and that, since the separation, both parents have been actively involved in decision making and have maintained a meaningful involvement in the children's lives.
There are many factors which may contribute to the children's being psychologically challenged in 2019 and 2020. The parents had recently separated. The ensuing parenting arrangements whereby they appear to have lived with the father in Queensland for about ten weeks and then with the mother in Sydney for about 10 weeks could be assumed to be unsettling.
The evidence does not suggest that the equal time arrangement between the beginning of the 2020 school year and 31 October 2020 was unsettling for the children. However that arrangement was disrupted by the mother's retaining the children after 31 October 2020 and refusing to resume it until ordered to do so by the Court.
Other than the mother's unsupported assertion that the children were more settled when they were spending five nights each fortnight with the father, there is no evidence of any specific incidents or behaviours that have caused the mother to be concerned.
Each parent asserts that the other has mental health vulnerabilities. How those vulnerabilities might have affected the children cannot be a matter for unqualified speculation.
There is no evidence of the children's views. Given that they will be 12 years old in a week, that is a significant lacuna having regard to the necessity to consider their views and give them appropriate weight.
Each parent agrees that the children have a loving relationship with the other. There does not appear to be any dispute that the boys have a significant sibling relationship with Z. On either proposal, they will continue to have ample time together with Z in the mother's home.
Whether each parent has participated fully in decision making is an issue to be determined. Each parent asserts that the other has made unilateral decisions.
The likely effect on the children of yet another change in their parenting arrangements is an important consideration. As has been highlighted earlier in these reasons, these children have already endured a number of significant changes in their day to day arrangements. After the mother unilaterally stopped the week about arrangement, the evidence of the school counsellor, on 23 November 2020, is that Y displayed behavioural difficulties and told the counsellor he felt unsafe.
There is no evidence that they are not settled in the present arrangement. The mother's proposal could have the effect that the children's arrangements will be altered now and altered once again after a final hearing.
There is no evidence before the Court that suggests that changing the present arrangements at this time, three weeks before the interviews with the single expert, will be beneficial to the children.
Each parent raises issues about the parenting capacity of the other, although each parent seeks orders that would, at the very least, result in the children spending substantial and significant time with the other. Until those issues have been determined, their respective capacities remain unknown.
The mother raises the issue of family violence. It is an agreed fact that in 2009 the father was convicted of assaulting the mother but any allegations of violence after that date are disputed. There was an incident between the parties at separation but nevertheless the mother was content for the boys and Z to remain in the care of the father.
Nothing in the matters raised by the mother persuades me that it is appropriate, once again, to change the arrangements for these children on an interim basis.
In so far as the father seeks to make changes to the orders of the Senior Judicial Registrar, the same principle applies.
The mother's application to review the orders of 16 April 2021 will be dismissed.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 11 October 2021
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