Bondai and Bretton

[2010] FamCA 941

FAMILY COURT OF AUSTRALIA

BONDAI & BRETTON [2010] FamCA 941

FAMILY LAW - CHILDREN - BEST INTERESTS – Father and independent children’s lawyer propose changeover for alternate weekend time with father be at school – Mother opposes – Best interests of children that changeover be at school

Family Law Act 1975 (Cth)

Marsden & Winch (2009) FamCAFC 152
Miller & Harrington (2008) FLC 98‑283
Rice & Asplund (1979) FLC 90-725

APPLICANT: Mr Bondai

RESPONDENT: Ms Bretton

FILE NUMBER: BRC 13855 of 2007

DATE DELIVERED: 8 October 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 4 - 8 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Smith

SOLICITOR FOR THE APPLICANT: Hogan Stanton Lawyers

COUNSEL FOR THE RESPONDENT: Mr Baston

SOLICITOR FOR THE RESPONDENT: Lynn & Rowland Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Carmody

THE INDEPENDENT CHILDREN’S LAWYER: Barbara Fox Solicitor

Orders

IT IS ORDERED BY CONSENT (except in relation to paragraph 19(b), the place for changeover for alternate Fridays after school, which matter was judicially determined)

1. In the terms of the minute of orders Annexure A.

AND IT IS FURTHER ORDERED

1. The original minute of orders signed by the parties be placed and kept on the Court file.

2. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Bondai & Bretton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 13855  of 2007

MR BONDAI

Applicant

And

MS BRETTON

Respondent

REASONS FOR JUDGMENT

1. In this matter, which has occupied five days, it is an exceptionally pleasing result that despite the parties’ volatility and hostility and high level of conflict with each other, as the parents of B and E commendably they with the assistance of their excellent legal teams have been able to agree consent final orders in all respects save one.  It is therefore necessary for me to make a determination on the one outstanding issue.

2. Part of the agreement is that the children live with the mother, and after being reintroduced to the father satisfactorily under the guidance of Dr W, psychiatrist, they spend time with the father at all times as agreed between the parties, but failing agreement each alternate weekend from after school Friday to 5.00pm Sunday, half school holidays, special occasions and other times. 

3. It is common ground that for all changeovers in relation to time with the father, other than for the commencement of alternate weekends from after school Friday, changeover be at the … McDonald’s cafe for the commencement and also the conclusion of time. 

4. Where the mother and the father differ is in relation to the alternate weekends from after school Friday.  The father seeks that the commencement of time be at the children’s school, and that he collect the children at the school for any time commencing after school, which plainly enough primarily is a reference to the alternate weekends from after school Friday.  The mother’s proposal is that the alternate weekend after school Friday time commence at 6.00pm at the McDonald’s cafe.  She proposes that if I am against her in relation to that, paragraphs 23 and 25 in an alternative proposal be ordered. 

5. The independent children’s lawyer, as is traditional, was heard first on the issue.  She supports, and strongly, that the changeover to the father be at school on the alternate Fridays so that the boys go straight from the school to the father, as otherwise what would be a smooth process of transition at the school would risk jeopardy, the worst jeopardy, perhaps, that one could think of being that if the children go to the mother’s home after school on those days she might concoct a reason to keep the children home; or, perhaps if B, or for that matter E, should make a statement “I hate Dad I don’t want to go”, the mother might keep them home on that basis and fail to deliver them to the father.

6. There has been a high level of conflict in the case, including accusation by the father of alienation by the mother of the children and his relationship with them such that now they have not seen the father for a considerable period of time. 

7. Mr Baston, for the mother, urged strongly that if the changeover be at the school there is a strong risk of discord if, as she alleges has happened in the past, school items might not be returned with the children on the Sunday afternoons, not only causing chaos in the mother’s household, but if the children should have to go to school on the Mondays without the school items causing embarrassment to them.

8. Mr Smith, for the father, adopts the course proposed by Ms Carmody, for the independent children’s lawyer. From the father’s perspective, voiced through Mr Smith, the most important aspect of the matter is that because the children have not had any relationship with the father in recent times, “as far as the children’s school goes the father doesn’t exist”, and that the Friday afternoon changeovers would be an ideal opportunity not only for the father to be seen at the school, to be identified as the boys’ father, but also, as is the way of these things, incidentally and casually to meet the boys’ friends, other parents, and so forth so as to be identified by the boys as their father, and for them to have the opportunity if they wish for introducing to their friends “This is my Dad.”

9. The submission by Mr Smith has much force and much merit. 

10. It seems to me that my task is to weigh the two risks identified,  that is, the risk of discord between the mother and the father e.g. by unpleasant text messages and chaos if school items accidentally be left behind after alternate weekend time with the father, on the one hand, and the risk, having regard to the background facts matters and circumstances, of the children’s alternate weekend time with the father not occurring at all either by being prevented by the mother or by her giving in to the children if they should express the wish that they don’t want to go, on the other hand.

11. Often, in these cases, the weighing up of risks is difficult.  Sometimes the risks are said to be finely balanced, and one risk might outweigh the other by a mere tilt of the balance.  In other cases the nature of the risks are at such different levels of weight that the decision is easy.  In this particular case I find, with ease and comfort, and no hesitation, that there is a far graver risk for these children if their hoped for relationship with the father should be jeopardised by the mother having an opportunity to intervene on the Friday afternoons to not allow the time with the father to commence, than if there happens on occasions to be a lost school sock or shirt or hat.

12. Having regard to the statutory matters I am required to consider, relevant to this aspect of the matter, in particular the benefit to the children of having a meaningful relationship with both of their parents, the children’s best interests therefore will be met by an order in the terms sought by the father and the independent children’s lawyer that the changeover on the alternate Friday afternoons be at the children’s school. 

13. The mother, as I have mentioned, put an alternative proposal, in case I should reject the mother’s proposal, which I have done, that paragraphs 23 and 25 as proposed by the mother be ordered.  Plainly enough, in all that I have said I would not have made orders in those terms.  In any event, Mr Baston now does not press them. 

    HER HONOUR:   Now, the other thing is even though it’s been necessary for me when formulating reasons to call it as I see it, to state what my reasons are and not pretend that there are other reasons, I hope that what I have stated in my reasons concerning the possibility of the mother seeking to avoid the weekend time with the father, or the resumed relationship with the father not working, does not have negative impact upon her. 

    The whole basis of our being here for the whole week has been to achieve what’s been achieved, and I can say that what’s been agreed between the parties - if I had reserved my judgment this afternoon - what’s been agreed between the parties with the assistance of their lawyers is very likely to have been my determination in any event.  So everyone is ad idem there.

    So I just wanted to say, Mr Baston, and I’m sure that in the debrief you’ll explain this fully to the mother, nothing that I have said in the last half hour or so is intended to be insulting to her, or to have shown any prejudgment that she has been the cause of the children not wanting to see the father.  There may well be dual causes or a multiplicity of causes of that, and it’s to be hoped that Dr [W] can sort it out. 

    It’s just that I think that because of the past situation, particularly in the transition phase until the children get used to seeing the father, it seems to me that if [B] put on a turn and said “I’m not going,  I hate him.  Why are you doing this to me?” then the mother wouldn’t be able to get him there or would say, “It’s okay you don’t have to go.”  It’s easier on the mother the way I’ve ordered it because she doesn’t have to worry.  The kids will be at school on those Friday afternoons.  Dad picks them up and that’s that, straight into the car.  So that allows for the smoother possibility of transition.

    Now, I will also place on the record an observation I made about my reason for making final orders, which is now by consent, but Ms Carmody and the independent children’s lawyer had a reservation about that, and I have made clear, and I will now place on the record, in case things go off track in future, that I’m mindful of the rule in Rice & Asplund (1979) FLC 90-725, but since then there have been the decisions of Miller & Harrington (2008) FLC 98‑283 at 72, and Marsden & Winch (2009) FamCAFC 152 at 41‑47 first sentence.

    As the latter two authorities show the rule is now applied taking into account best interest considerations, and the Court also must apply the provisions of Division 12A of the Act.  Now, as the trial judge in this matter I can state that the final consent orders which have been made, and the one which I have determined, are all predicated upon the notation to the orders that the parents acknowledge that the intention of thee orders is to put in place a child focused means by which the children might be reintroduced to the father and spend substantial and significant time with him.

    Order 18 is clear in its terms that upon - not if - but upon - a satisfactory reintroduction of the father into the children’s lives under the guidance of Dr [W] the children spend time with the father at all times as agreed between the parties, but failing agreement as set out.  There is nothing in the orders that is predicated upon a presumption that if the proposed reintroduction fails then that’s the end of the matter and the boys and the father will continue to have no relationship.  That’s not the way it works. 

    In my mind there is no doubt whatsoever that if a satisfactory reintroduction through Dr [W] is not achieved that in itself will be a significant and outstanding change of circumstances, not in the present relationship between the parties, but the predication of the success of these orders.  If, therefore, they don’t work, and I sincerely hope that they do in the best interests of the children, if they don’t work then there will not be a barrier to the father instituting fresh proceedings for the children to be removed from the mother and to live with him.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 8 October 2010.

Associate:     

Date:              25 October 2010