Campbell and Bingham
[2010] FMCAfam 52
•27 January 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CAMPBELL & BINGHAM | [2010] FMCAfam 52 |
| FAMILY – Child aged seven years – parties have never lived with each other – child has lived with mother since birth – father seeks to change child’s residential arrangements – mother suffers from depression – evidence reveals child has been habitually truant from school – school counsellor’s opinion is that child is “educationally at risk” – best interests – need to protect child from abuse and neglect – weight to be given to child’s views – effect on child of change of circumstances – assessment of risk of child neglect – what surname should child bear – matters to be considered. |
| Family Law Act 1975, ss.60B, 60C, 60CC, 61DA, 65DAA, 68LA |
| Fooks v McCarthy (1994) FLC 92-450 Chapman & Palmer (1978) FLC 90-510 Beach & Stemmler (1979) FLC 90-692 H v W (1995) FLC92-598 R & R: Children’s wishes (1999) 25 Fam LR 712 |
| Applicant: | MR CAMPBELL |
| Respondent: | MS BINGHAM |
| File Number: | ADC 5732 of 2007 |
| Judgment of: | Brown FM |
| Hearing dates: | 26 August & 21 December 2009 |
| Date of Last Submission: | 21 December 2009 |
| Delivered at: | Adelaide |
| Delivered on: | 27 January 2010 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Initially Ms Forde then in person |
| Solicitors for the Respondent: | Initially R J Cole & Partners and then in person |
ORDERS
The father’s application in respect of the surname which the subject child should bear is dismissed.
The child [X Bingham] born [in] 2002 be independently represented in these proceedings and that pursuant to section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the child [X Bingham] born [in] 2002 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
The independent children’s lawyer, when appointed, be at liberty to provide a copy of these reasons for judgment to the mother’s treating psychologist and general medical practitioner, as he or she considers appropriate.
The proceedings be adjourned for directions on 2 August 2010 at 9:30am, at which stage consideration will be given to fixing the matter for further contested hearing on a date prior to the conclusion of the academic year in 2010.
NOTATION:
It is implicit in the orders outlined above and in the reasons for judgment which follow that the arrangements for [X]’s care, as outlined in the orders of the court made on 23 July 2007, are to continue. In particular that [X] will remain living predominantly with the mother and her enrolment at [D] Primary School is to be maintained for 2010 until the court determines otherwise.
IT IS NOTED that publication of this judgment under the pseudonym Campbell & Bingham is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 5732 of 2007
| MR CAMPBELL |
Applicant
And
| MS BINGHAM |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Campbell “the father” and Ms Bingham “the mother” are the parents of [X], born [in] 2002. These proceedings are concerned with final arrangements for [X]’s care.
The parties have never lived together. [X] was conceived as a result of a brief liaison between them. Since [X]’s birth, she has always lived with her mother.
In August 2002 Mr Campbell, Ms Bingham and [X] underwent parentage testing, which definitively determined that Mr Campbell was [X]’s father. Nonetheless, the mother commenced proceedings to enable her to obtain an administrative assessment of child support, for [X], which would be payable by Mr Campbell.
In September 2006, the father began proceedings to enable him to spend regular periods of time with [X] and to so consolidate his relationship with her. Mr Campbell’s affidavit, filed in support of his application at the time, indicated that he had had brief and erratic contact with [X] since the date of her birth.[1]
[1] See father’s affidavit filed 8 September 2006.
The father’s solicitor had to make an application for a Commonwealth Information Order in order to be able to serve this application upon
Ms Bingham. I provide these details to indicate the fact that the parties did not have an easy relationship, with one another, in the early stages of [X]’s life.
In November of 2006, the parties agreed that the father would spend six sessions of supervised contact with [X], which was to occur at the [omitted] Children’s Contact Centre. A report was to be prepared regarding how [X] responded to this arrangement. No doubt these orders were made in recognition of the fact that [X] had very little relationship with her father, at the time.
Mr Campbell married his current wife, Ms C, in May 2004. They have one child, [Y], who was born [in] 2004. Ms C has two other children from earlier relationships. They are [K], who is now aged 18, and [A], who was born [in] 1996. Mr Campbell has formally adopted [A].
In April 2007, Mr Campbell filed an affidavit, in which he raised his wish to have [X]’s surname changed from Bingham to Campbell. At this stage, he also wanted the court to make orders that [X] could be enrolled at a Catholic school, [S] School, at [N], which was the school attended by his other children.
On 23 July 2007, I made final orders which provided for [X] to live with her mother and spend regular periods of time with her father, particularly on alternate weekends and Thursday evenings during term time and for roughly one half of each school holiday.
The orders also provided for [X] to attend the [D] Primary School, which is located near to where Ms Bingham lives. Most of the orders, made on 23 July 2007, were made with the consent of the parties. At that stage, they agreed they would have equal shared parental responsibility for [X].
The surname which [X] should bear remained a matter of controversy between the parties. In July 2007, it was the father’s preference that she should be known as [X Campbell-Bingham]. Ms Bingham’s position was that [X] had been registered at birth as [X Bingham] and this was the name by which she had always been known.
On 23 July 2007, I specifically declined to alter [X]’s surname. I did, however, make directions that Ms Bingham should take the necessary administrative steps to ensure that Mr Campbell’s name was included on [X]’s birth certificate to reflect the fact that he was her father.
Unfortunately, the orders of July 2007 soon broke down. On 6 November 2007, Mr Campbell began contravention proceedings, against Ms Bingham, alleging that she had not delivered [X] to him, at the [W] Police Station, as the orders required.
The parties utilised the [W] Police Station to exchange [X] between them because it constitutes a neutral but secure location. It is also about halfway between Ms Bingham’s home in [T], in the southern suburbs of Adelaide and Mr Campbell’s home in [P] to the city’s north.
Later, Mr Campbell discontinued his contravention proceedings. However, he continued to have concerns about Ms Bingham’s parenting of [X], particularly that [X] was not attending school as regularly and punctually as she should and these deficits were symptomatic of grave problems in Ms Bingham’s household, which were adversely impacting upon [X].
The father commenced this current round of proceedings on 24 October 2008. He now seeks orders that would see [X] living predominantly with him and spending time with her mother on weekends and during school holidays. Essentially, he seeks to reverse the current care arrangements for [X].
It is Mr Campbell’s case that such a change of living arrangements for [X] is the only way she can be properly protected from the neglect and abuse, which she is currently suffering in her mother’s household.
The most serious aspect of the neglect alleged by Mr Campbell concerns [X]’s attendance at school. He argues that [X]’s irregular attendance at [D] Primary School during 2007, 2008 and much of 2009 is neglect of the most serious kind and, if unchecked, has the potential to do untold harm to [X], as she matures.
Mr Campbell’s case is supported by Mr T, who is a school counsellor at [D] Primary School. He has access to [X]’s school attendance records and has been involved with Ms Bingham and other of the school authorities in attempting to improve [X]’s attendance and punctuality at school.
Mr T believes that [X] is “educationally at risk”. He describes her as a bright and popular girl in her year at school, who has been successful there to date. However, he does not believe this situation “can be sustained with [her] current regime of attendance [at school].”[2]
[2] See transcript of proceedings of 26 August 2009 at page 27
Mr T has deposed of his concerns regarding [X]’s lateness and absenteeism from school and what are the implications of this both for [X]’s education and social development. He said as follows:
“Fundamentally, we believe that the early years of education are the foundation years, it’s where acquisition of skills is paramount. There is also some issues relating around lateness, because our curriculum is literacy and numeracy rich in the mornings when we believe children are more energetically able to take on those more difficult concepts, and so with absenteeism, organisational skills in the morning and these sorts of routines and compounded by lateness, not only is she missing the foundation learning there, but she also misses the connections - the beginning of work or the completion of it, so there are aspects that she missed throughout the day. …we believe that if you’re immersed in the culture of school and understand that, and part of the - that is the key to success.”[3]
[3] At page 27
Essentially, Mr T’s view is that [X] needs to be “immersed into the culture of school” so that she can acquire a proper basis in literacy and numeracy skills, and can thus progress successfully into upper primary school and so on to high school.
He also believes that she needs to mix with other children, of her own age, to develop the necessary social skills to assist her to become a rounded person. He fears that, if she is an irregular school attendee, this will stigmatise her, with possibly catastrophic consequences for her educational development and quite possibly the rest of her life.
Ms Bingham vigorously opposes Mr Campbell’s application. It is her case that [X] is well settled in her care and it would be both disruptive to her emotionally and contrary to her wishes to remove her from the home where she has spent the vast majority of her life to date and from the care of the parent upon whom she is the most emotionally dependent.
Ms Bingham does not dispute that she has been confronting many problems in her life of late, most particularly depression, which have impacted on her capacity to get [X] to school regularly and on time. However, it is her case that she has been getting her household in order, over the past few months and, since August of 2009, there has been a marked improvement in [X]’s school attendances.
As such, Ms Bingham argues that it would be too dramatic a step to change [X]’s principal place of residence, at this stage of her life, particularly because of the detrimental consequences it is likely to have for [X]’s emotional stability, given her close attachment to her mother.
Mr Campbell does not agree. He doubts the long term viability of the improvements in Ms Bingham’s household, particularly as punctuality at school continues to be a problem. He believes that once the pressure, in the form of these proceedings, is taken off, Ms Bingham will inevitably revert to her old behaviour, to [X]’s long term detriment.
In the past, both parties have been legally aided. Now it would seem to be the position that each has fully utilised his or her allocation of legal aid. As a result, both Mr Campbell and Ms Bingham have been compelled to act for themselves in the current proceedings.
Given this state of affairs and the difficult issues raised by the case, I ordered that a family report be prepared to assist me to reach the right decision, so far as [X]’s best interests were concerned. The report was allocated to Mr Rudzitis, an experienced psychologist in the field of parental conflict affecting appropriate arrangements for the care of children.
As matters unfolded, Mr Rudzitis has written two reports for the court, on 28 June 2009 and 5 December 2009 respectively. The first report was prepared in anticipation of the final hearing, which was originally scheduled for 26 August 2009.
In June 2009, Mr Rudzitis understood that [X] had been attending more regularly at school than previously and, as a consequence,
Mr Campbell was willing to withdraw his application to change her living arrangements.
As such, Mr Rudzitis recommended that [X] should continue living with her mother but Ms Bingham should be required to undertake to the court that she would ensure that [X] continued to attend her school regularly and any absences from school should be subject to medical certification or other proper explanation.
In his report, Mr Rudzitis provided the following evaluation following his observation of [X] in both her father and mother’s household:
“Apart from [X]’s past problems of regularly attending school, while living with her mother, resulting in the father initiating the present court action, the child’s parenting arrangements currently in place, appear to be viable and beneficial to [X].
The parties personal relationship as parents appears to be workable and in [X]’s best interests.
Further ongoing court action in this matter would appear to be detrimental to the child’s future parenting.
Much will depend on the mother’s present ability to maintain [X]’s regular school attendance, obviously an essential part of her parenting responsibilities.
The alternative is for [X] to become a third relationship child in the father’s household, an option that despite, apparently successful, visiting arrangements, may be unpredictable repercussions on the child living with her father.
The father’s position of accepting the mother’s vastly improving management of [X]’s education in 2009 and his subsequent decision to cease further court action should be commended and accepted.” [4]
[4] See family report dated 28 June 2009 at paragraphs 34-39
In August 2009, when the matter came on for hearing, Mr Rudzitis’ report and recommendations had been overtaken by events, particularly the evidence of Mr T, which indicated that [X]’s attendance record at [D] Primary School for the first two terms of 2009 and more recently had been abysmal.
In those circumstances, Mr Campbell was not willing to discontinue his application but rather wished to persist with it. Accordingly, the hearing proceeded on 26 August 2009 and both Mr Rudzitis and Mr T gave evidence before the court.
Mr Rudzitis was greatly concerned at [X]’s poor attendance at school and agreed that it was indicative of some major issues in
Ms Bingham’s household. He agreed that [X] “must” attend school. From his perspective, Mr Rudzitis believed that [X]’s attendance at school needed to be “normalised”.
However, on the other hand, Mr Rudzitis was also troubled at the prospect of a radical change in [X]’s life, particularly as he understood that there was some possibility of Ms Bingham seeking some professional help to assess her depression and some prospect of her accessing some of the parenting support programmes offered by Anglicare. In these circumstances, he did not strongly argue for any change in the arrangements for [X]’s care at that immediate stage.
I asked him as follows:
“Do you think the decision [whether to change [X]’s living arrangements] should be made now or do you think that the cons for [X] are such that it should perhaps be postponed?”
He answered as follows:
“It depends, I think, on what mother does from now on with her help and her proposals and her plans. In any case, if there is to be a change, it really should occur at the beginning of the next school year, 2010, a change of residence and a change of school. Now, whether Ms Bingham should be given another chance, I mean, that is, I guess, for you to decide, your Honour.”[5]
[5] See transcript of proceedings of 26 August 2009 at page 18
Ultimately, I decided that it was inappropriate for [X]’s place of residence and schooling to be changed mid‑way through the school year. This was the background to the proceedings being adjourned part heard to 21 December 2009. It was also the rationale for Mr Rudzitis being asked to revisit the family, in the lead up to the resumed hearing and prepare an updated family report.
However, in adjourning the proceedings, I put Ms Bingham on notice that the ball was very much in her court to take practical steps to improve [X]’s attendance at school, particularly in terms of her
(Ms Bingham) seeking treatment for her depression and approaching Anglicare for assistance.
Otherwise, I warned her, that the court would have no proper alternative but to change [X]’s living arrangements, in order to ensure that she attended school properly, no matter how much sympathy was felt for Ms Bingham herself.
It was and remains my view that it is an essential part of parenting to ensure that a child attends school regularly and on time. For obvious reasons, attendance at school provides the necessary building blocks, in literacy and numeracy, which enable a child to successfully complete the educational process, which in turn will enable the child to have a fulfilling life upon reaching maturity.
I warned Ms Bingham that I could not allow [X]’s future life to be potentially blighted by reason of a compromised primary school education. I also told Ms Bingham that I was concerned at the prospect of [X] being deprived of the opportunity to interact with children of her own age, in a school setting and of being able to pass the normal educational milestones at the appropriate times.
I hope that Ms Bingham was under no illusion that I regarded [X]’s attendance at school to be a non-negotiable requirement of her parenting and that a failure to ensure that she attended school properly, would amount to child abuse of a serious kind.
This was the background to the resumed hearing on 21 December 2009. Clearly, if [X]’s place of residence and schooling is to be changed, it is best that this change occur to coincide with the start of the 2010 school year. These reasons for judgment are directed to resolving this issue.
It remains Mr Campbell’s position that, although Ms Bingham has shown some improvement in ensuring [X] attends school as required, it is necessary for the court to change her place of residence, so that she will not be at risk educationally in future. He also renews his application for [X] to have the surname of Campbell-Bingham.
On the other hand, Ms Bingham believes that, in the comparatively short period of four months, she has made great strides in ensuring [X] attends school regularly. She has begun receiving treatment for her depression from Ms M, a psychologist, and has much support from her mother Ms J, who visits her home daily.
Neither Ms Bingham nor Mr Campbell are in a strong financial position. Ms Bingham lives in a unit which is rented from the Housing Trusts of South Australia. She is in receipt of social security payments.
Mr Campbell is in receipt of a disability support pension, due to a serious back injury. He has been unemployed for the past five years. His wife is the major breadwinner in his family and she ensures the modest mortgage on the family home is paid.
Mr Rudzitis had earlier advocated a shared parenting regime for [X], with her moving between her parent’s homes on a week about basis. However, the parties’ financial situation, the distance between their respective homes and the great difficulty involved in either of them moving to be closer to the other make such an outcome logistically very difficult to achieve and neither party advocates for it.
Mr Rudzitis remains in favour of a retention of the current regime for [X]. In his second report, he wrote as follows:
“On the one hand the father appears to have given up all hope and trust of the mother being able to maintain any improvement in her parenting abilities and behaviour.
On the other, the mother claims recent improvement and ongoing participation in therapy to maintain her parenting skills and motivation.
Observably, [X] has equal emotional attachment to both of her parents while facing a “boring” relationship with her mother and a more exciting one with her father.
Despite her differences she appears to require an efficient parenting base with her mother while facing some potential difficulties in her father’s household such as rivalries with [Y] and questions of stability of his marriage.
The father’s proposed school change may be a major problem given the child’s reported superior adjustment, behaviour and performance at her present school.
There appears to be a potential prospect of the mother successfully upgrading her parenting abilities and behaviour despite the father’s pessimism.
Expertises appear to be available and should be given a chance as an avenue of least disturbance for the child at this time.
Should the mother prove to be incorrigible within twelve months then the father will have strong evidence to support his case.
The present parenting arrangements, therefore should be retained as final orders with a review in twelve months by the parties, the writer or further application to court.”[6]
[6] See family report dated 5 December 2009 at paragraphs 45-53
When parents ask the court to make orders in respect of their child, it is the best interests of the child concerned which are the paramount or most important consideration. Whatever the court ultimately decides, it must be satisfied that this will be in [X]’s best interests.
The Evidence
The father relies on the following documents:
(i) an affidavit of himself filed 24 October 2008;
(ii) an affidavit of himself filed 7 August 2009;
(iii) an affidavit of himself filed 11 December 2009.
The mother relied on the following affidavits:
(i) an affidavit of herself filed 5 February 2009;
(ii) an affidavit of herself filed 21 August 2009;
(iii) an affidavit of herself filed 10 December 2009.
Mr Campbell called Mr T to give evidence in the proceedings. Mr T did not provide an affidavit in the proceedings. Ms Bingham called her mother, Ms J to give evidence in the proceedings. Ms J did not provide an affidavit in the proceedings. The only other person to give evidence in the case was Mr Rudzitis.
(a) Mr T’s Evidence
Mr T was a most impressive witness. He has been a school counsellor for nineteen years. Prior to that, he was a child protection advisor, for a period of eight years and prior to that again, he was a primary school teacher. He holds tertiary qualifications in teaching and has been the school counsellor at [D] for 14 years.
Part of his role, as a school counsellor, is to deal with pupil attendance issues and to work and communicate with parents to ensure their children attend school regularly. On any view, he has extensive experience in working with both parents and children in regards to truancy issues.
Although it is still open for parents to be charged with offences regarding their failure to ensure their children attend school regularly, the relevant authorities – both the Education Department and Families SA – now regard school attendance as an educational issue rather than a welfare issue simpliciter. Accordingly, the emphasis has moved from a punitive one to one involving support and counselling for the parent concerned to ensure a child attends school properly and attains an appropriate level of education.
Mr T described [D] Primary School as being a significantly disadvantaged school within the Adelaide Metropolitan Area. The school’s population has a strong multicultural component. as well as being fairly transient. There are approximately 250 students at the school.
Mr T has known [X] and Ms Bingham for approximately three years. It was his evidence that, in 2007, [X]’s reception year at school, she had a 73 per cent non-attendance record. It was in this context that he came to be closely involved with [X] and the mother and more recently with Mr Campbell.
[X] turned six in June of 2008. There is no legal obligation on a parent to enrol a child at school prior to the age of six years. However, the attitude of the Department is that once a parent has enrolled his or her child at school, there is then a compulsion on that parent to ensure that the child does indeed attend school.
Accordingly, [X] was the subject of a notification to the student wellbeing officer, regarding her non-attendance at school, from 2007 onwards. This notification has been renewed in each year which has followed.
[X] was enrolled, by her mother, at [D] Primary School on 30 July 2007, the start of the third term. She was absent on 68 days until school concluded on 14 December 2007. It is Ms Bingham’s case that she did not think it was either essential or required for [X] to attend school during 2007, because she was not yet six.
Mr T has provided [X]’s school roll for 2008. During this year, she was absent on 124.5 days. Mostly her absences were unexplained or a reason relating to family activities was given.
[X]’s school report for the second term of 2008 indicates that she was absent on 27 days, of which 23 were unexplained. It was also noted she was late on eight occasions. Her results in all her subjects, apart from Spanish, were noted to be excellent. However, her classroom teacher noted as follows:
“[X] has been absent for most mornings so far this year and has missed many spelling, reading and writing lessons. In saying this, she does know most of her initial sounds and has made a small leap in her reading and sight words. She uses very good listening skills. [X] can count up to 100 and can write numbers up to 67. Again because of her lateness every day, she has missed out on many lessons in measurement, data representation, number and space.”[7]
[7] See annexure B to the father’s affidavit filed 24 October 2008
In 2007, Mr T regularly telephoned Ms Bingham to emphasise to her the importance of “early years foundation learning” and the benefits of establishing a secure school routine for [X].
The support, which was offered to Ms Bingham by the school, included placing [X] in the school’s breakfast club, where she could share breakfast with other students and parents prior to school.
In addition, Ms Bingham was invited to be included in [X]’s classroom, in a “support the teacher” role, so that she could take part in listening to [X] and other students’ reading. The school also offered to pick up [X], in the mornings, for a limited time to help establish punctuality in Ms Bingham’s household.
Mr T has attended Ms Bingham’s home on several occasions, at times unannounced. He describes it as being adequately furnished and clean. He was however of the view that it was “counterproductive” for [X] to have a computer and television in her bedroom, particularly as
Ms Bingham reported problems in getting [X] to sleep.
Ms Bingham’s home is about 10 minutes’ walk away from [D] Primary School. There is one busy road, which a child of [X]’s age would require adult assistance in crossing. Accordingly, the practice has been for Ms Bingham to accompany [X] to and from school. Apart from outright absences from school, punctuality for [X] has also been a major issue throughout both 2008 and 2009.
However, Mr T has never observed [X] to have exhibited any other signs of neglect, such as attending school in dirty clothing or not having been appropriately bathed. [X] always has her lunch and something to eat at morning and afternoon breaks.
In addition, Mr T has found no indications of [X] having been exposed to any emotional or physical abuse, whilst in her mother’s home. He describes her as being a “little cautious” at times, particularly with adults but otherwise comfortable with her peers. No behavioural issues have ever been noted so far as [X] is concerned at school. All her teachers describe her as a pleasant and well-behaved child.
However, Mr T has been concerned about Ms Bingham’s presentation towards him. He describes her as being surrounded by “a great sense of lethargy”. In addition, it was Mr T’s impression that Ms Bingham had some inability to be the rule maker or boundary setter for [X]. In this regard, Mr T was concerned that Ms Bingham had failed to be more proactive in setting bedtimes for [X] and removing stimulants from her prior to bedtime.
Ms Bingham has previously explained to Mr T that she suffers from depression. As a result, she explained to him that she found it very difficult to get up in the morning. As a result, Mr T considered that [X] and her mother had a shared sleep pattern, which contributed to both of them not being able to get up in the morning.
As previously indicated, part of Mr T’s role has been to telephone
Ms Bingham to discuss school attendance issues with her. Mr T’s evidence was that he found it hopeless to ring her before midday as only one in fifteen or sixteen of his calls, prior to this time was ever answered by Ms Bingham. It also seems to be the case that
Ms Bingham has issues to do with deafness in one of her ears.
Mr T opined, on 26 August 2009, that Ms Bingham needed intense support to assist her in getting [X] to school regularly and on time. In 2008 and again in mid-2009 he had contacted Anglicare to see if their family support team could assist Ms Bingham in developing a regular school day routine for [X].
Mr T described the Anglicare family support team as follows:
“Traditionally they offer an in-house parenting skills program, I suppose, where they will target a period of time. So if food was an issue and lunches and stuff like that, that person might come in for the meal preparation time at night. They can come in in the morning, and they’re a bit like a mentor. They show and encourage and develop in-house skills.”[8]
[8] See transcript of proceeding of 26 August 2009 at page 32
However, Mr T was unsure what were the hours of operation of the team. Obviously, in Ms Bingham’s case, the early morning, prior to around 7.30am was the crucial time.
In the first term of 2009, Mr T indicated that there was some improvement in [X]’s attendance at school but her punctuality was frequently an issue. In Mr T’s words:
“Attendance was quite good actually in the first term [but] there were 16 late days in the first term.”
Unfortunately, there was a marked falling off in [X]’s attendance in the second term of 2009, when she was absent for 21 days in the term, which Mr T categorised as a “40 plus per cent non-attendance”.
In addition, there were a number of late days.
The Education Department categorises a student as being a chronic truant, if he or she misses ten days or more of school per term. So [X]’s level of non-attendance was double that of the standard for chronic truants.
What is concerning about the second term was that this marked deterioration occurred in the lead up to the final hearing of the matter. It confirms Mr T’s impression that there was a significant level of paralysis in Ms Bingham’s home in respect of the issue. As has been previously indicated, what occurred in the second term of 2009 caused Mr Campbell to change his attitude about the matter.
The gist of much of Mr T’s evidence was that, in the two years or so leading up to the hearing of August 2009, he and the authorities at [D] Primary School felt that they had done their upmost to assist
Ms Bingham to ensure she was able to get [X] to school regularly but they felt perplexed and perturbed at the failure of their efforts.
These efforts had not been punitive in approach but were seen by them to be supportive of Ms Bingham, who was perceived to have an insight and understanding of the issue of [X]’s truancy, but appeared powerless to engage with remedial programs for any lengthy period of time.
In August of 2009, Mr T agreed that it was preferable that [X] complete the 2009 school year at [D]. In his experience, there was a cost for children in moving between schools during the school year and it was usually better for them to be able to celebrate the milestone of completing a year at school with their peers.
As one would expect, Mr T was proud of the school community at [D], which he described as community based. From his perspective, he would be happy if [X] continued at the school. However, at the end of the day, the important thing for [X]’s welfare was that she attended a school rather than [D] in particular.
Mr T returned to court on 21 December, to give further evidence as to what had happened after the August hearing, when Ms Bingham had been effectively put on notice that she needed urgently to mend her ways. He deposed that she had made a significant improvement in regards to getting [X] to school but he did not believe her efforts were good enough.
The data indicated that [X] had had only one absence from school, since 5 August 2009 and that had been for illness. However, her level of punctuality continued to be an issue of grave concern. [X] frequently arrived at school 10 to 15 minutes late but at other times had arrived well after 11 o’clock and on two occasions, after noon.
Mr Campbell has calculated that [X] missed well in excess of 20 hours of school, due to lateness, in the period from early September until the end of the school year. From Mr T’s perspective, this level of unpunctuality continued to be unacceptable, as the time lost for [X] occurred at a “significant time for instruction giving and organisation in the class setting.”
Because of [X]’s lateness, Mr T believed that there continued to be issues relating to the structure and organisation within Ms Bingham’s household. He was aware that Anglicare had not been involved with Ms Bingham’s household but rather she had been getting help from her mother, Ms J in getting [X] to school.
In this context, he was concerned at the long term viability of such an arrangement, particularly if the assistance was withdrawn at a later stage. Essentially, Mr T’s concern was that the changes had not eventuated from Ms Bingham herself and she was not responsible for them.
In a letter written on behalf of Mr Campbell, Mr T wrote as follows:
“I don’t believe the promised help from Anglicare to support
[Ms Bingham] get organised in the mornings has ever eventuated. Ms Bingham has been getting help from her family to get [X] to school and this has been very successful. The unknown factor in all of this is whether [Ms Bingham] can maintain her current success at getting [X] to school if this level of help were to diminish or not be available. [X]’s absenteeism has always been very high without a team effort to get her to school.”[9]
[9] See annexure F to the father’s affidavit filed 11 December 2009
Notwithstanding [X]’s disrupted school year in 2009, it was Mr T’s assessment that [X] had had a successful year. In his words, she had “shone at school both academically and socially”. This had resulted in her winning a rising star award for learning. Overall, Mr T described [X] as a “gorgeous kid”.
[X] has had the same teacher for the past two years. She is Ms K. Mr T described her as a gifted and committed teacher. It was his impression that [X] had formed a strong relationship with Ms K and, in turn, some level of rapport had been achieved between Ms Bingham and Ms K. Mr T described Ms Bingham as being more open and more connected to the school in the second half of 2009.
However, Mr T was concerned that this level of progress might not be maintained, when [X] had a new teacher for the start of 2010, as Ms K was moving on. The tenor of Mr T’s evidence was that he believed
Ms Bingham found it difficult to form relationships with professional people, because of her disposition, which was characterised by a significant level of diffidence and defensiveness.
In more recent times, Mr Campbell has been highly critical of
Ms Bingham in respect of her response to [X] suffering lice infestations. This was not of concern to Mr T or other staff at [D] Primary School.
It was, however, of concern to Mr T that [X] had never had a dental check up whilst at school. It would appear to be the case that this has occurred because Ms Bingham has never taken the necessary steps to make a dental appointment for [X].
(b) Mr Rudzitis’ Evidence
Mr Rudzitis is an experienced psychologist. He has been involved in providing family reports to the family court and this court since 1976. During that period, he has gained a high level of aptitude in interviewing children, particularly in the context of parental disagreement and assessing the nature of children’s relationships with their parents and other people, who are significant to them. I found
Mr Rudzitis’ reports and evidence to be well considered and helpful. As such, I accept his evidence and recommendations.
Mr Rudzitis acknowledged that it was essential for [X]’s wellbeing, particularly in terms of her educational development, that she attended school regularly and punctually. If Ms Bingham was unable to attend to this aspect of [X]’s parenting effectively, Mr Rudzitis acknowledged that considerations relating to [X]’s welfare should dictate that she be placed with a parent who would ensure that her fundamental educational requirements were met.
However, Mr Rudzitis also approached the case in terms of [X]’s emotional and psychological needs. He categorised [X] as “still a little girl [whose] emotional base is still mum.” As such, in spite of the difficulties existing in Ms Bingham’s household, Mr Rudzitis was not in favour of changing [X]’s principle place of residence, categorising such an outcome as “too drastic an action” at this stage.
Mr Rudzitis noted that there had been a marked improvement in
Ms Bingham’s household in the period since the August hearing. In addition, he pointed out that Ms Bingham and others had marshalled all sorts of resources to bring about this improvement and Ms Bingham herself was well aware of the real possibility that she might lose [X] permanently, if these improvements were not maintained and built upon.
As such, in the overall context of the case, Mr Rudzitis did not think that Ms Bingham had been given enough chance to see if she could provide a viable household for [X], particularly as Mr Rudzitis himself had considerable reservations as to how easily [X] would adapt to living in her father’s more complex household, when her ([X]’s) preference was to remain living with her mother.
Mr Rudzitis elected to interview [X], at Mr Campbell’s home, after
Mr Campbell had given his consent to the interview. Mr Rudzitis conceded that, at aged 7 years and 5 months, considerable caution needed to be taken in respect of any apparent views provided by [X], given her obvious immaturity and the fact that she was likely to be aware, in an inchoate way, of the significance of her ultimate place of residence for each of her parents. As such, it was highly probably that her apparent views would be subject to all manner of subtle and ever changing influences.
What struck Mr Rudzitis about [X]’s interview with him was that she was capable and willing to list for him all manner of her mother’s failings but nonetheless still maintained her preference for living with her. Although Mr Rudzitis could not be sure, he considered that it was possible [X] chose to outline her mother’s failings, at her father’s house, knowing they would get back to him in an attempt to placate
Mr Campbell, whilst at the same time expressing her underlying emotional preference to be with her mother.
I agree that this analysis draws something of a “long bow” but to my mind, the importance derives from the expression of [X]’s emotional preference, which flows from the fact that her mother has been the central figure in her life, for as long as she can remember.
Mr Rudzitis described [X] as a shy and cautious child. She presented as a child, who did not want to offend or upset anyone. Essentially a child who was attempting to keep a balance between the competing forces in her life. He recorded his interview with her as follows:
“Living with mummy is boring … she always plays on the computer and I don’t … she does it when I’m at school and when I return … mum picks me up, when we come home, I watch a movie in my room … she cooks tea after movie is finished … sometimes potato, snitzel peas and carrots, I like them, other times spaghetti and that’s it … three time a week chips and nuggets when I ask her to buy them … bedtime changes all the time … mummy gives me hugs and a kiss, puts my nightie on and leaves … I watch a movie in my room, when I get sleepy I go to sleep, it changes all the time … I switch off the TV never mummy … but I’d rather live with mummy … sometimes she lets me use the computer to play games when I feel like it.
In the mornings nanny comes, wakes me up, fixes my lunch and morning tea, takes to school, she never comes at night.
Daddy looks after me better than mummy, it’s less boring … I like visiting here, it’s fun, I enjoy it, would like to have more time visiting here … different food, better here than at mum’s … but I fight with [Y].”[10]
[10] See family report dated 5 December 2009 at paragraphs 27-29
It is a significant element of Ms Bingham’s case that Mr Campbell’s household is not as stable and as happy as he maintains. For his part, Mr Campbell concedes that there have been some difficulties, in his relationship with his current wife, and at one stage during 2009, they were separated under the one roof.
In this context, Mr Rudzitis had some concerns about how easily [X] would adapt to moving from her mother’s household to her father’s home. He noted that separation under the one roof was invariably a difficult process for all concerned because of the emotional atmosphere which it generated.
However, of more concern to Mr Rudzitis was the fact that [X] would move from a household where she was the sole child and so the focus of attention to one where she would be a middle child. In Mr Rudzitis’ perception, [Y] was “the apple of the father’s eye”. He found [Y] to be an engaging child, around whom the Campbell household revolved.
In this context, Mr Rudzitis was concerned that [X], a shy and somewhat retiring child, would perceive herself to be an interloper. As such, he considered that there was the prospect of [X] suffering emotionally, if she moved from her mother’s house into her father’s household, which Mr Rudzitis described as “complex”.
Mr Rudzitis acknowledged that [X] had a close and viable relationship with her father and her half-siblings. However, he noted that there was a significant difference, for a child of [X]’s age, between being a visitor in a particular household and moving to live in that household permanently.
I agree that there is likely to be such a dichotomy, so far as [X] is concerned. At this stage, it is likely to be a very dramatic change indeed for [X] to move both to a new home and a new school, particularly given that [X] draws the majority of her emotional sustenance from her mother.
Mr Rudzitis considered that [X] had a meaningful relationship with both her parents. Her views and attitudes, about her parenting arrangements, Mr Rudzitis thought “should be considered as some indications of her childish but nevertheless personal position”.
He considered the parties’ parenting relationship to be strained but not beyond any prospect of amelioration. He was in favour of the parties continuing to hold equal shared parental responsibility for [X] and for arrangements to be made whereby she could spend substantial and significant time with each of her parents. However, he recommended that [X] should remain living predominantly with her mother, provided she could ensure the child’s regular school attendance.
This was the rationale for Mr Rudzitis’ recommendation that the current arrangements should be maintained for a further period of around 12 months, during which time Ms Bingham would remain under some form of de facto parenting probation.
(c) The parties themselves
The parties have no shared history of ever having parented [X] either consensually or empathetically. They are quite different people by way of demeanour and personality. Sadly, as a result of the current proceedings, they currently do not trust one another.
Ms Bingham fears that Mr Campbell is intent on removing [X] from all maternal influence and effectively re-branding as a “Campbell”. For his part, Mr Campbell regards Ms Bingham as being irredeemably feckless and slovenly.
Mr Campbell is a forceful and self-confident person, who is unafraid to express his views. I suspect that Ms Bingham regards him as domineering and bullying but certainly lacking in any sympathy for her personal difficulties.
Ms Bingham on the other hand struck me as diffident and defensive. As such, when Mr Campbell pushes, she is likely to withdraw and retreat. An attitude she is likely to replicate when she has to deal with authority figures, whom she does not know.
Both parties seem to me to be honest people, who attempted truthfully to recount their history with [X]. However, they have a completely different perspective on that history, in the sense they are likely the view the same set of events in a dramatically different way.
Mr Campbell will see things in black and white terms, whereas
Ms Bingham will be far less dogmatic.
Ms Bingham did not attempt to underplay her difficulties. I agree with Mr T’s assessment that she has an insight into the likely consequences of her problems, so far as her continued care of [X] is concerned. She knows that it is non-negotiable that [X] should attend primary school regularly.
However Ms Bingham, being diffident by nature, is unlikely to be proactive in seeking assistance for herself. She is most certainly not the “squeaky wheel which gets the most oil”. She is also likely to be mistrustful of those in authority and wish to avoid confrontation with those disapproving of her situation.
Mr Campbell, being more assertive, is comfortable with professional people and likely to be more amenable to seeking advice. He is also more likely to complain vociferously about the failings of
Ms Bingham, as he sees them, to all who he thinks will assist him.
Although the parties do not hate each other, they do not particularly like one another and certainly there is no longer any trust between them. It is Mr Campbell’s position that he has had to fight to maintain his relationship with [X], in the face of passive indifference from
Ms Bingham.
Ms Bingham, on the other hand, would say that Mr Campbell has only fairly recently become involved in [X]’s life. However, there can be no doubt that, in these somewhat unconducive circumstances, [X] has been able to form a significant level of relationship with her father.
It also seems to me that, although the relationship between the parties is far from cordial, it is at least workable. Mr Rudzitis characterised the relationship as follows:
“Tension? I think, it is more like they ignore each other, rather than fight each other, if you know what I mean. I don’t think there is the sort of heat, if you like, or intensity in their relationship – animosity, I don’t think is there, it is simply dislike and also worry about the child.”[11]
[11] See transcript of proceeding of 26 August 2009 at p.16
I make these observations in the context of the overall workability and practicality of a shared care arrangement. However, regardless of who of the parties has the ultimate predominant responsibility for providing a home for [X], it seems likely that she will be able to spend significant periods of time in the care of both her parents.
My assessment of Ms Bingham is of an emotionally vulnerable person. She seemed to me to be isolated socially and lacking in self-confidence. Without doubt, [X] is the most significant aspect of her life. As such, she is likely to feel bereft, if [X] goes to live predominantly with her father.
This is a cause for concern in a number of aspects. Firstly, there are obvious risks arising for a young child feeling that he or she must be emotionally responsible for the wellbeing of an adult carer. In such situations, a child feels that he or she is responsible for the happiness of a parent and, as such, may subjugate his or her interests to those of the emotionally needy parent.
Neither Mr Rudzitis nor Mr T thought there was any evidence to indicate that [X] was emotionally caretaking her mother. However,
Mr Rudzitis was concerned at the possibility of an inevitable psychological decline in Ms Bingham, particularly given her propensity for depression, if [X] went to live with her father. In these circumstances, he was concerned at the prospect of [X] being potentially deprived of a working parental relationship, particularly as in the past this had been the most important relationship for [X].
On balance, I think that Mr Rudzitis’ concerns are the more likely ones to eventuate in this case, if there is a change in [X]’s place of residence. It seems to me more likely than not that Ms Bingham will become a less functional parent if [X] lives away from her. Certainly it seems to me that the impetus for her to improve her parenting and to be proactive about her depressive illness will be taken away.
Ms Bingham is 35 years of age. She has not worked for many years. She has a close relationship with her mother, Ms J. Ms Bingham was living with her mother when [X] was born and the three shared a house together in [C] for many years, until [X] was two and a half. As a result, [X] has a close relationship with her grandmother.
Ms Bingham has been living independently of her mother for some years now. Ms J continues to live in [C], a south-western suburb of Adelaide, which is around twelve and a half kilometres from where
Ms Bingham lives in [T].
Ms J has been attending the mother’s home each morning since
26 August 2009. She arrives there at around 8am. She helps get [X] out of bed and sometimes makes her lunch. Although this assistance has been invaluable, it would appear that there are still some issues relating to punctuality at school.
Ms J works as a [omitted]. She has to start work at 8.54am each morning. It would seem to me that it is a tight schedule for her to drop in at [T] and be at work on time.
Ms J leaves the [T] home at around 8.30am and Ms Bingham then walks [X] to school. As the school roll indicates, [X] still routinely arrives at school 10 or 15 minutes late and sometimes far more. As such, there is still much room for improvement.
Ms Bingham deposes that she contacted Anglicare shortly after the August hearing. At that stage, she was told there was an eight-week waiting list for family assistance. Unfortunately, this waiting list blew out and it was not until 7 December that Ms Bingham was allocated a support worker.
Ms Bingham and the worker concerned have since developed a plan to create a bedtime routine for [X] to ensure that she is always in bed at 8pm each evening. The hope being that [X] will be brighter in the morning and easier to rouse.
This is all well and good but it would seem to me that part of the problem, in this case, is that Ms Bingham herself does not get to bed early enough and finds it difficult to respond to her alarm clock, a problem exacerbated by her partial deafness.
However, it is a significant part of Ms Bingham’s case that the trial period, between August and November 2009, has been too short for her to demonstrate her potential for change, particularly as she has only recently been involved with Anglicare. I accept that this is so.
One of the more significant aspects of this case is Ms Bingham’s mental illness and its amenability to treatment. There is not a great deal of evidence about this issue. This is not as a result of any lack of candour on Ms Bingham’s part. She has always been frank about the fact that she has had longstanding issues to do with depression.
She was diagnosed with post-natal depression following [X]’s birth. She was prescribed the antidepressant medication Zoloft in 2003 and continues to take a daily dosage of 100 mg.
Ms Bingham has never been hospitalised, as a result of her depression and it would seem to be to be the case that she has been able to maintain a reasonable level of functioning, so far as the basic aspects of [X]’s parenting have been concerned. It is not said that [X] has not been appropriately clothed or fed or that issues to do with her basic hygiene have been ignored. Although, no doubt, Mr Campbell would say that Ms Bingham could have done better, so far as these issues are concerned.
However, it would seem to me that [X] is a well-loved child and her teachers have never observed any obvious signs of neglect. Ms K writes of [X] as follows:
“[X] is a bright, composed confident and well-liked girl at school. She has very well developed social skills and is capable at resolving issues positively. She is always happy, settled and appears to be well adjusted when arriving to school. [X] is always well dressed, with a healthy lunch packed and brought every day.”[12]
[12] See the letter from Ms K dated 1 December 2009 being annexure TLB2 to the mother’s affidavit filed 10 December 2009
However, the lethargy and lack of engagement observed by Mr T in
Ms Bingham is a matter of grave concern and perhaps indicative of the fact that the medication prescribed by her general medical practitioner and his clinical support are inadequate resources to deal with
Ms Bingham’s illness and a more proactive and multi-faceted response is called for.
I do not consider that Ms Bingham can be criticised for lacking insight into her illness or that she is avoidant of seeking treatment in respect of it. The fact remains that she is not well resourced financially and confronts a significant degree of social disadvantage.
Ms Bingham told me that 2008 was a particularly difficult year for her. It was also a very poor year for [X]’s attendance at school. It was
Ms Bingham’s evidence that she had been provided with a mental health care plan by her general medical practitioner but it “fell apart” because she could not afford to pay for the psychological support recommended for her.
The proceedings of August 2009 provided a spur for Ms Bingham to re-engage with her general medical practitioner and for a fresh mental health care plan to be drawn up. Ms Bingham is entitled to Commonwealth Government assistance in order to finance the psychological treatment component of this plan.
As part of the plan, Ms Bingham’s general medical practitioner has referred her to Ms M, a psychologist. Ms Bingham has seen Ms M on three occasions in November and December of 2009 and she has two further sessions booked in December and January. Ms Bingham has not missed or cancelled any of her appointments.
Ms M has diagnosed Ms Bingham as suffering from chronic depression. She proposed treating Ms Bingham’s condition with cognitive behaviour therapy, which she has found to be effective in treating other patients with depression.
Ms M concedes that the success or otherwise of the treatment depends on the degree of Ms Bingham’s motivation and that, at this stage, the most significant motivating factor is her fear of losing her predominant care of [X], rather than any specific internal self-motivation.
In her report, dated 9 December 2009, Ms M notes that Ms Bingham has displayed some enthusiasm to make changes in her lifestyle. In particular, she has considered becoming involved in volunteering for canteen duty and attending a lunch with other mothers from [D] Primary School. In the past, aspects of Ms Bingham’s illness have led her to remain socially isolated.
Given that the strongest motivation for Ms Bingham to change her behaviour is an external one, relating to these proceedings, Ms M indicates that it is unknowable whether Ms Bingham’s positive prognosis will continue, once the external motivator is removed.
Clearly, this is one of the central issues in the case. Neither
Mr Campbell nor Mr T are sanguine in this regard and believe that it is inevitable that Ms Bingham will regress to her old behaviour, if the pressure of these proceedings is removed from her. Mr Rudzitis is more positive in his outlook believing that it is premature to pass judgment on Ms Bingham’s potential to change her lifestyle and confront her problems.
In my assessment, Ms Bingham has made some significant strides but it is too early to ascertain whether she can continue to make good progress. Certainly, I would be pessimistic that Ms Bingham could keep up with her treatment, as this stage, without any significant external impetus to do so. In my view, she remains psychologically frail and dependent, as her reliance on Ms J’s support clearly demonstrates.
Ms M has a future treatment plan for Ms Bingham. This includes the involvement of Anglicare in regards to providing her with parenting assistance in the home. Ms M notes that Ms Bingham has been positive at the prospect of receiving this assistance and importantly has also acknowledged that she has had past parenting difficulties with [X], particularly in managing her behaviour in the school context.
Ms M proposes continuing with a course of cognitive behaviour treatment for Ms Bingham’s depression, particularly assisting her to identify unhelpful thoughts and behaviours and develop strategies for dealing with them. Ms M reported as follows:
“[Ms Bingham] has already identified that some of her behaviour is unhelpful in regard to how she feels. For example she has withdrawn socially and is spending most of her days on the internet. She also does not have a good sleep routine and in particular goes to bed late ad consequently has trouble getting up in the morning. The amount she is reliant on her mother to assist her with maintaining getting [X] to school on time needs consideration and we will aim to reduce this once [Ms Bingham]’s wellbeing improves.
I am happy to continue to work with [Ms Bingham] for as long as required. She will have access to 12-18 sessions in 2010 dependent on her GP reviewing her progress and needs. I believe she has the potential to make significant changes in her lifestyle and improve her mental health.”[13]
[13] See Ms M’s psychological report dated 9 December 2009 being annexure TLB3 to the mother’s affidavit filed 10 December 2009
Ms Bingham acknowledged that [X] had never seen a dentist. This is of grave concern to me. Ms Bingham deposed that she thought [X]’s school would arrange for her to see the school dentist, otherwise she said she had “forgotten” to pursue the issue of [X] having a dental check-up. In my view, this behaviour demonstrates a severely compromised attitude towards the responsibility of being a parent.
This neglect of issues to do with [X]’s dental hygiene may be attributable to the lethargy resulting from Ms Bingham’s depression. However, that will provide little consolation for either Mr Campbell or [X], the latter of whom has an entitlement to receive appropriate medical and dental care, as well as to attend school regularly.
If [X] is to remain in the care of her mother, it is incumbent upon
Ms Bingham to continue to engage in dealing with her mental health issues. Although Ms Bingham cannot be held personally responsible for her illness and all right minded persons can only be sympathetic towards her because of it, the court’s fundamental responsibility is to ensure that [X]’s best interests are preserved.
These interests include her entitlement to proper medical and dental treatment and to attend school properly, regardless of her mother’s mental health. For obvious reasons, [X]’s rights and interests transcend those of Ms Bingham.
Ms Bingham acknowledged that [X] had recently suffered hair lice. It was her evidence that she had obtained some lotion for the condition and had applied it as directed to [X]’s hair. It was her case that
Mr Campbell had overstated his concerns in this regard.
Ms Bingham is strongly opposed to there being any change made to [X]’s last name. It is her case that [X] has always been known as
[X Bingham], the name on her birth certificate. In her first period at school, there was another girl in her class also called [X]. As a result, she was referred to as [X] B to distinguish her from the other child.
Now that she is seven years of age, Ms Bingham contends that [X] is aware and familiar with her given surname and it would be difficult and perhaps embarrassing for her to have to deal with a name change at this stage and possibly be required to explain the change to other children.
In addition, Ms Bingham points to the fact that the issue was canvassed and determined by the court in 2007. As such, it is likely to be of benefit to all concerned that there remains some degree of finality about the matter.
Essentially, she argues that the issue of [X]’s name, which is inextricably tied up with issues to do with her identity, should not be subject to any revision, as this cannot be said to be in her best interests.
Mr Rudzitis was asked about the issue. In his view, it was likely that [X] would always see herself as [X Bingham], the name which she had known from the earliest stages of her life. He also postulated that, in some circumstances, the assumption of a hyphenated name by a child of [X]’s age suggested to that child that there was strife between his or her parents.
In all these circumstances, Mr Rudzitis was not in favour of any change to [X]’s surname. Certainly, he did not think the issue was likely to be of any great importance to [X] herself but rather was significant to the adults concerned, particularly Mr Campbell.
Mr Campbell presented as a dedicated family man. I have no reason to doubt the sincerity of his presentation. It is to his credit that he has pursued his relationship with [X] in somewhat difficult circumstances. I accept that it is important to him that all of his children are able to identify strongly with him and his family.
Mr Campbell’s current wife is from the Philippines. Her oldest daughter has not adopted the name “Campbell” but [A] has. [A] has just finished year seven at [S] School. [K] has moved on to [omitted] College. It is the case that both children have done well at school and no fault can be found in their attendance record.
Neither Mr Campbell nor Ms Bingham advocate a week about care regime for [X]. Mr Campbell would not consider [X] remaining at [D] Primary School, in the event that she moves into his household. His preference is that she attends [S] School, from the start of the 2010 school year. A place is available for her at the school.
It is Mr Campbell’s position that it would be logistically very difficult to get [X] to school each day at [D] Primary School, if she does come to live with him at [P]. It is also his position that [S] School is a superior school to [D]. It is his preference that all of his children, including [X], attend Catholic schools.
Mr Campbell is not in a strong financial position. In the past, he has operated [business’ omitted]. He has a background in computers. However, a congenital back disorder and injury have forced him out of paid employment. In the future, he is contemplating some form of IT business.
At present, Mr Campbell’s wife is the family’s main breadwinner. She is an [administrative employee] earning approximately $40,000.
Mr Campbell and his wife have a small mortgage. As such, it is his case that he is able to afford to pay [X]’s school fees at [S] School.
Mr Campbell deposed that he loves [X] very much indeed. This is obviously the case. I accept that Mr Campbell believes that [X] will be fundamentally better off, if she comes to live in his household as soon as is possible. It is his case that he is a superior parent to Ms Bingham in every way.
He describes [X] as a child who “likes pleasing people”. As such, he does not believe that she has any preference regarding where she wishes to live. He suspects that Ms Bingham has tried to influence [X] because of her (Ms Bingham’s) emotional neediness and dependence upon [X].
Accordingly, it is hardly surprising that Mr Campbell refutes many of the observations of Mr Rudzitis regarding his household. In particular, he denies any suggestion that [Y] and [X] have fights. Rather, to use his expression, “they have arguments”, the implication being that these are unexceptional childhood squabbles.
In addition, Mr Campbell disputes any suggestion that [X] will not easily slot into his household. In this regard, I am concerned that
Mr Campbell may have underestimated the difficulty for [X] of moving from a household where she is the centre of attention, to one where she is the middle child of four others.
Mr Campbell concedes that there have been difficulties in his relationship recently with his current wife, resulting in the two separating under the one roof in early March of 2009. He ascribes this separation to sensitive medical issues concerning his wife. It is his position that he and his wife have reached an accommodation with one another and none of the children have been adversely affected by the separation, which was short-lived.
Mr Campbell is critical of Ms Bingham for not being able to access support from Anglicare in the period immediately following the August hearing. He is dubious that she can bring about the necessary changes required in her life and parenting style, in order to ensure [X] attends school regularly and punctually. He ascribes any improvement in [X]’s attendance at school to the involvement of Ms J, not to anything
Ms Bingham herself has done.
Underpinning his case, is his assertion that it is untenable, in the long term, for an outsider to come into the mother’s household each day to ensure that [X] is awake and ready for school. He doubts that Ms J will be able to continue to provide her assistance on an indefinite basis and asserts that Ms Bingham herself has demonstrated that she is incapable of doing what is necessary.
It is also Mr Campbell’s position that, notwithstanding the assistance provided by Ms J, there is still much amiss in the mother’s household, as demonstrated by [X]’s persistent lack of punctuality at school. In all these circumstances, he asserts that the court needs to take urgent steps to ensure that [X]’s education is not further neglected.
It is Mr Campbell’s evidence that [X] has persistent head lice, which he and his wife treat when [X] is in their care only to see the lice return when [X] reverts to her mother’s care. It is also his case that
Ms Bingham has used harsh and inappropriate chemicals to deal with the lice, which have caused an allergic reaction on [X]’s scalp.
It is his case that hair conditioner and the careful application of a lice removing comb are the appropriate remedies for [X]’s condition. The implication of his evidence is that he and his wife are prepared to take the time and expend the effort to deal with the lice, whereas
Ms Bingham is not, preferring to use a harsh chemical which exacerbates the condition.
Issues regarding lice infestations are common in cases involving young children, particularly where there is a high degree of acrimony between the parents concerned. Lice are a disturbing but common phenomenon in primary school children. In cases involving high conflict and mistrust, it is easy for parents to ascribe the cause of lice to parental neglect and omission.
However, the fact remains that many school children, regardless of societal-economic background and domestic circumstances, become infested with lice. In all the circumstances of this case, the evidence is insufficiently clear for me to allocate any degree of fault or omission to either Ms Bingham or Mr Campbell.
(d) The evidence of Ms J
Ms J presented as a pleasant and sensible person, who was obviously devoted to the welfare of both her daughter and granddaughter. Although I found her to be a truthful witness, she is likely “to accentuate the positive [and] eliminate the negative” so far as her daughter’s mental condition and care of [X] are concerned.
Notwithstanding her bias in favour of Ms Bingham, I found Ms J’s evidence to be helpful and candid, notwithstanding the fact that she is likely to have gilded the lily somewhat. In addition, I do not think that it can be said that Ms J’s involvement in Ms Bingham’s and [X]’s life is a recent phenomenon. She has always been vitally interested in [X]’s welfare.
Ms J and Ms Bingham and [X] have lived together in the past. As such, it seems Ms J has been a positive influence on both. Ms Bingham has lived independently since 2005. In 2007/2008, it was difficult, because of her work commitments, for Ms J to drop in to Ms Bingham’s home in the mornings.
It is Ms J’s evidence that [X] is currently being cared for well. I accept her evidence that Ms Bingham’s household is clean. It is also Ms J’s evidence that Ms Bingham cooks regularly for [X] and provides her with healthy food.
Ms J acknowledges that Ms Bingham has longstanding issues to do with depression. As a result she “sleeps quite a bit”. It would be my assessment that Ms J would be supportive of her daughter continuing to seek treatment from Ms M for her depression. Certainly, I do not think that it can be said that Ms J is blind to the problems existing in her daughter’s household.
However, it is Ms J’s evidence, which I accept that Ms Bingham has improved in mood and presentation over the past few months. Ms J asserts that Ms Bingham’s self-esteem has improved and she presents much better in appearance.
However, Ms J confirmed my impression that Ms Bingham is a diffident person. In Ms J’s words, “she stands back and it takes her a while to get confidence to do things”. Ms J believes that these proceedings have given Ms Bingham more confidence to go out and get help for herself.
However, it seems to be an inescapable conclusion that much of the improvement in [X]’s attendance at school is due to the assistance of Ms J. She is able to get to Ms Bingham’s home at around 8 am each morning. She helps get [X] ready for school. Sometimes she makes [X]’s sandwiches. Ms J works at [omitted]. Her work is 10 minutes’ drive away from Ms Bingham’s home. She is scheduled to start work at 8.54 am.
In these circumstances, it would seem to be the case that it is more likely than not the glitches in [X]’s punctuality at school are due more to Ms Bingham than to Ms J, as it is Ms Bingham who actually is responsible for walking [X] to school.
Ms J is prepared to remain involved in providing support and assistance to both Ms Bingham and [X]. I accept her evidence in this regard. She is obviously close to both. It is her evidence that she speaks to [X] and her mother each evening by telephone.
Ms J has a partner. In those circumstances she does not propose to move in with her daughter. In any event, it would seem to be
Ms Bingham’s preference to continue to live independently. There is no suggestion that Ms Bingham has not been able to manage her home finances and other domestic issues, apart from [X]’s school attendance, unassisted.
Ms J deposed that [X] enjoys school. It is also her view that [X] is doing well at school, as demonstrated by her winning the rising star award, which is decided by a committee at the school. It cannot be said that Ms J is not supportive of [X] doing as well as possible at school. She was clearly proud of the fact that [X] had won the rising star award.
It is Ms J’s assessment that her daughter is aware that any continuing neglect of [X]’s education would put her (Ms Bingham’s) ongoing care of [X] in an untenable position. In Ms J’s words “she (Ms Bingham) is not silly”.
I agree with this assessment. Clearly Ms Bingham is well aware that Mr Campbell will not let the issue of [X]’s education rest. She knows that he is a determined person. She also knows what is the attitude of the court to the issue.
Mr Campbell suggested that Ms J’s health was likely to be an impediment to her remaining involved in Ms Bingham’s household.
Ms J refuted this suggestion. She indicated that she had had a hip replacement operation in May of 2007 and her health was otherwise “reasonable”.
In addition, in September of 2008, she had visited the Grand Canyon. She has no plans for any further extensive travel in the short to medium term. As such, I accept her evidence that she is both willing and available to continue to provide support to Ms Bingham and [X].
The application of legal principles to the case
The provisions in the Family Law Act1975, relating to children, rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm, as a result of exposure to abuse, neglect or family violence.
These factors are stressed in section 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in how a court determines what is in a child’s best interests by section 60CC(2).
This is not a case which is focused primarily on issues to do with how best [X] will have a meaningful relationship with both her parents. Whatever is the outcome, [X] is likely to have a significant relationship with both her mother and father, who will remain available to her and both of whom love her very much.
Rather, it is a case which focuses on the potential for [X] to suffer psychological harm, as a result of her being either subjected to, or exposed to, abuse or neglect. Thankfully family violence is not an issue in this case.
Abuse is defined in the Act. It is a concept relating primarily to assault, including sexual assault, on a child. Again, thankfully there is no suggestion that [X] has ever been abused in this sense. Regardless of any failings displayed by either party, it cannot be said that either of them would ever knowingly harm [X] in this way.
Accordingly, this is a case focused on neglect. Neglect is not a concept formally defined by the Family Law Act. Its meaning must be gleaned from an examination of the objects underpinning part VII of the Act, which deals with how arrangements for the care of children will best serve the interests of any child concerned.
These principles include the following:
Ensuring that children receive adequate and proper parenting to help them achieve their full potential;
Ensuring that parents fulfil their duties, and meet their responsibilities concerning the care, welfare and development of their children.[14]
[14] See section 60B(1)(c)(d)
Clearly, [X] will not achieve her full potential, either as a child or as an adult, if she is robbed of the opportunity to attend school regularly. She will not be able to read and write adequately. She will not be able to do arithmetic. As a child, she will be an exception rather than part of the normal cohort of the children with whom she is enrolled at school.
If [X] is deprived of the opportunity to learn these elementary skills, her progress through primary school and on to high school will be problematic. Her social skills are likely to be retarded because she will not interact as fully as other children do with their peers. If she is frequently late to classes, she may become singled out for mockery by other children. Her attendance at school will be different to other children.
These factors are not helpful to children, of [X]’s age, in assisting them to enjoy participating in school and doing well there. To the contrary, they are likely to lead to a lack of routine and stability in a child’s life, which in turn may lead to habitual truancy and perhaps, in time, delinquency.
For self-apparent reasons, a failed education is not conducive to an adult having a successful life. Without literacy and numeracy skills, a person cannot easily obtain meaningful employment. These issues may tip over into other aspects of a person’s life and be a factor in preventing that person forming close and loving relationships and being a fully functional parent in turn.
Accordingly, in my view, the duty to ensure a child attends school properly and has a regular education is one of the most fundamental responsibilities of being a parent. I have no doubt that habitual truancy can cause significant psychological harm to a child. Otherwise a child is likely to be robbed of the entitlement to achieve his or her full potential in life.
When deciding what parenting orders to make, it is the best interests of any child concerned which is the paramount consideration. In determining where those best interests lie, the court must consider the primary and additional considerations set out in section 60CC.
The primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the family law legislation. However, in determining the outcome of a particular case, one or more of the individual considerations may come to the fore.
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act section 61DA]. The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence has occurred. The presumption may also be rebutted if the court finds that it would not be in the best interests of the child for it to apply.
The parties have previously agreed that they should have equal shared parental responsibility for [X]. A consent order was made to this effect on 23 July 2007. In my view, there is no reason for the court to look behind this agreement. I am satisfied that both parties wish to be closely involved in making all major decisions pertaining to [X]’s long term care, welfare and development.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
In this particular case, neither Ms Bingham nor Mr Campbell seek orders for an equal time parenting arrangement in respect of [X]. Implicit in each of their positions is a recognition that such an outcome would not be reasonably practicable. Again, I accept the parties’ respective assessment of the situation.
In my view, it is clear that Ms Bingham and Mr Campbell would have great difficulty, both now and in the future, in implementing such an arrangement. They do not communicate well and have no great empathy to solve any parenting problems which are inevitably likely to arise. In addition, although both live in metropolitan Adelaide, their homes are not particularly accessible to each other. I also have considerable qualms as to how easily [X] would adapt to such a regime.
The present regime enables Mr Campbell to spend substantial and significant time with [X]. He sees her on alternate weekends and on a Thursday evening during school terms. The orders of 23 July 2007 also provide for him to spend time with [X] during school holiday periods and on special occasions, such as Father’s Day.
Ms Bingham does not propose any change to this regime. If
Mr Campbell is successful in his application, he proposes that the current arrangement be reversed.
In these circumstances, I agree with Mr Rudzitis’ assessment that, whatever is the ultimate outcome in this case, [X] should spend substantial and significant periods of time with both her parents and such a result would be in her best interests.
The issue of which name the child should bear is also governed by the principles contained in Part VII of the Family Law Act. Like all issues to do with [X] in this court, the guiding principle for the determination of the name issue is which outcome is likely to be in the child’s best interest. In Fooks v McCarthy[15] Warnick J said as follows:
“There is only one principle, that is that the welfare of the child is the paramount consideration. It stands above the wishes of the parents.”
[15] Fooks v McCarthy (1994) FLC 92-450
The factors to which earlier courts most frequently have had regard in determining whether there should be any change in a child’s surname or for the surname to revert back to that which it was previously, include the following:
a)the short and long term effects of any change in the child’s surname;
b)any embarrassment likely to be experienced by the child if his or her name is different from the parent with custody or care and control;
c)any confusion of identity which may arise for the child if his or her name is changed or is not changed;
d)the effect that any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship;
e)the effect of frequent or random changes of name;
f)the contact that the non custodial parent has had and is likely to have in the future with the child concerned;
g)the degree of identification that the child concerned has with his or her non custodial parent;
h)the degree of identification, which the child concerned has with the parent with whom he or she lives;
i)the desire of the father that the original name be restored.[16]
[16] See Chapman & Palmer (1978) FLC 90-510 and Beach & Stemmler (1979) FLC 90-692
(a) The primary considerations
For reasons already provided, this case is not primarily concerned with the benefits [X] will derive from having a meaningful relationship with both of her parents. She already has such a meaningful relationship with both Ms Bingham, who has been her main carer since birth and Mr Campbell, who has become increasingly involved in providing care for her.
Whatever is the ultimate outcome in this case, I recognise that it is in [X]’s best interests that her parental relationships should be supported and maintained, so that she can interact with both her parents in a variety of settings.
The rationale of the amended provisions of Part VII of the Family Law Act is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flow from them being exposed to their parents in a variety of settings. This I take it is the legislature’s intent by its use of the word “meaningful” in section 60CC(2)(a).
These settings include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting, as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in a more mundane set of situations. In this way, the child is likely to have a more balanced and so richer relationship with each of his or her parents.
A maintenance of a regime whereby [X] is able to spend substantial and significant periods of time with both her parents is in keeping with the rationale of the Act and flows from the parties’ agreement that they will share equally parental responsibility for [X].
The task for the court, in this case, is to determine whether issues relating to [X]’s welfare should dictate that she must live more with her father than her mother, notwithstanding previous arrangements for her care and Mr Campbell’s implicit recognition that it is in [X]’s best interests to spend significant periods of time with her mother in future. I confess that it is not an easy issue to determine and the pros and cons are finely balanced.
I have no difficulty in reaching the conclusion that Ms Bingham’s failure to ensure [X] attended school regularly in 2008 and the first portion of 2009 represented neglect of [X] of a most serious kind. In moral terms, I do not think that this failure on Ms Bingham’s part was deliberate. Her depression, for which she cannot be held responsible, played a major role in impairing her parenting capacity.
However, Ms Bingham was not without support during 2008 and 2009, as the evidence of Mr T demonstrates. She was also well aware that her response to getting [X] to school was unacceptable, both to the education authorities and Mr Campbell. She also knew that it was likely to be detrimental to [X] if she did not go to school.
In August 2009, I did not think it appropriate to pluck [X] from [D] Primary School and place her into a new school in the middle of the year. I thought it would be too precipitate a response to the crisis concerned and potentially emotionally traumatic for [X] herself. In addition, both Mr Rudzitis and Mr T counselled against it.
However, I wanted “to put a rocket” under Ms Bingham so that she would be under no illusion that her past parenting behaviour was unacceptable and, notwithstanding how difficult it might be for all concerned, including [X], I would have no hesitation in moving [X], if Ms Bingham’s parenting did not improve.
To some extent, the rocket has been successful. Ms Bingham’s parenting has improved since August 2009. Mr Campbell would say that it has improved too little and too late to avoid the inevitability of the court reaching the conclusion that [X] must be placed forthwith, in his predominant care, so that she can get a proper education.
I agree that that much of the improvement has been due to the efforts of Ms J and there is still some way for Ms Bingham to go in her parenting, particularly in terms of getting [X] ready for school in the morning and ensuring her punctuality there. However, I am not persuaded that considerations relating to the school issue alone should dictate an immediate change of [X]’s school and day to day residence.
Ms Bingham does demonstrate some degree of insight into the significance of the schooling issue for [X]. It does not seem to me that she is totally paralysed in regards to the issue. She was insightful enough to call in her mother, after August, to provide her with help on a practical and day to day basis. Ms J is willing and able to stay involved with the family.
Equally importantly, Ms Bingham is taking concrete steps to address her mental health issues, albeit that the impetus for her seeking treatment is these proceedings and her visceral fear of losing [X]. However, she has followed through on her appointments and I accept both Ms M and Ms J evidence that she is making progress, particularly in terms of her self esteem and understanding the nature of her depression.
In addition, Ms Bingham has willingly, it would seem, begun to engage in the process of changing her parenting practises, by inviting the Anglicare workers to come into her home. As such, she has begun a process of changing her past parenting practises, which seem to have led her to being unable to get [X] out of her home in the morning. However, at this stage, it is impossible to ascertain what is the likelihood of success in this regard, given that Anglicare has only been involved since after school concluded in 2009.
[X]’s school attendance record in 2008 and 2009 is clearly compromised. However, at this stage, there is no evidence that she has sustained actual psychological harm as a result of this. To the contrary, her most recent report speaks of a well liked student, who is achieving appropriate educational standards for her age. In addition, I do not believe that she was given the rising star award out of any degree of tokenism.
[X] is at risk of educational failure in future, but that risk has not as yet materialised. This may be due more to good luck than planning on
Ms Bingham’s part. [X] seems to be a bright girl and she is still very young. However, in my view, the absence of any concrete proof of academic failure on [X]’s part is also a factor which militates against an immediate change in her residence and school.
I agree with Mr Rudzitis that it is premature for the court to attempt to assess whether Ms Bingham is capable of improving her parenting, given that it is only around four months since she began the process of mustering resources to assist her to do so.
However, although the time has been short, there are some promising signs and the existence of some “green shoots” in this regard. I do not think that Ms Bingham’s parenting must be regarded as irredeemably flawed.
Although issues to do with [X]’s schooling and education are highly important, they are not the only factors impacting upon her overall welfare, particularly at her current stage of development.
I must also consider the implications for her emotional wellbeing, given her close relationship with her mother, if there is a change in her living arrangements at this stage. These considerations bring into play the additional considerations detailed in section 60CC(3).
(b) The additional considerations
In Mr Rudzitis’ opinion, although [X] is young and obviously immature, she does have a preference to remain living with her mother. Mr Rudzitis describes this as “her childish but nevertheless personal position.” I accept that this is so. Although [X] was able to catalogue the mother’s failings, albeit in her father’s household, she remains emotionally attached to her mother.
To use Mr Rudzitis’ simple but eloquent expression “Mum remains the emotional base” for [X]. In my view, this is the most significant factor influencing [X]’s preference and is readily understandable in emotional terms, given that [X] has lived with her mother for all of her life to date.
The applicable legislation places emphasis on the views expressed by any child concerned, depending on the maturity of the child concerned and his or her level of understanding of the issues involved.
The views of the child, like any individual, are idiosyncratic and personal. They are also important. As such, they are to be given “proper and realistic weight” rather than token regard.[17]
[17] See H v W (1995) FLC92-598 at 81, 944
As such, it seems that the court is required to explore a child’s perception of what he or she feels is likely to be best for him or her. Very often, these perceptions will be ambivalent or difficult to express or quantify. This is particularly so with younger children.
It is impossible to catalogue all the factors which may be at play in shaping a child’s view in any given case. It has been said that the process of weighing up a child’s professed view, for any judicial officer concerned, is “a process of intuitive synthesis”. What is done with those views is a matter of common sense in the overall assessment of what is likely to be in a child’s best interests.[18]
[18] See R & R: Children’s wishes (1999) 25 Fam LR 712 at 724
In this case, [X] has expressed a significant level of ambivalence about her mother. Nonetheless, she has said “…but I’d rather live with Mummy…” Given that [X] has lived with her mother and the two are emotionally close, I believe that it would be imprudent of me to disregard [X]’s views at this stage [Section 60CC(3)(a)].
[X] has a close and loving relationship with both her parents. In addition, she has also a close relationship with her maternal grandmother, Ms J. Ms J has played a significant, caring role in [X]’s life, since she was born. In my view, this is a relationship which the court should take into account and encourage in any orders which it makes [Section 60CC(3)(b)].
The early years of [X]’s life were marked by a lack of involvement by Mr Campbell. He would say that Ms Bingham failed to include him in [X]’s life. She would say otherwise.
In more recent times, there can be no doubt that Mr Campbell wants to be closely involved in all aspects of [X]’s life and welfare, as his current application clearly demonstrates. Since the time of the court’s first involvement, the parties’ parenting relationship has not been an easy one.
However, it would now appear to be the position that Ms Bingham accepts that Mr Campbell has become an indispensable part of [X]’s life. Similarly, Mr Campbell concedes that, whatever is the outcome of his application, [X]’s wellbeing dictates that she must continue in her relationship with her mother. It would be my assessment that there is a grudging acceptance of this state of affairs on the part of both parties concerned [section 60CC(3)(c)&(4)].
The orders proposed by Mr Campbell represent a significant change of circumstances for [X]. She would go from living in a household where she is an only child to one where she is one of four. In my view, this would require a considerable level of adjustment on her part [section 60C(3)(d)].
I agree with Mr Rudzitis’ assessment that there is a vast difference, for a child, in being a visitor, albeit a regular one, in any particular household to actually living permanently in such a household. I am not persuaded that [X] would easily and happily make the transition.
This is a major factor with militates against the father’s proposal, particularly given that Ms Bingham has only been provided with a fairly short period of time in which to demonstrate her credentials regarding her potential to improve her ability to get [X] to school regularly and on time.
There is much to be critical of in how Ms Bingham has responded to the duties incumbent on being a parent. She has been found wanting in terms of how she has dealt with [X]’s dental hygiene and more particularly her intellectual needs. It is clear that Ms Bingham could do much better in the organisation of her household in order to get [X] to bed on time [section 60CC(3)(f) & (i)].
However, I do not regard Ms Bingham as a selfish or deliberately neglectful parent. I accept that she loves [X] and aspires to [X] achieving a happy and fulfilled life. Rather, Ms Bingham is a parent with problems. The best thing for [X] is likely to be for the court to see what can be done to help Ms Bingham resolve those problems rather than attempting to solve those issues in another more forceful way.
I must be careful of the law of unintended consequences for [X]. That is in attempting to solve one problem for her, I create other more serious ones. In respect of Ms Bingham’s response to the assistance and opportunity available to her to attend to her problems, I do not think that she is either too intellectually limited or so debilitated that she is incapable of making the required level of effort to change her past parenting practices.
Conclusions
I have found this a difficult and finely balanced case. I accept that [X] is “educationally at risk”, as Mr T puts it. If she misses out on the basic building blocks of primary school education, there exists the possibility that she will sustain irreversible harm. She may become unfairly stigmatised, as an academic failure, with long term consequences for her own self-esteem and possibility for success in later life.
On the other hand, the reality of [X]’s life to date is that she lives with her Mum in [T]. This is her preference. It would be a great change for a little girl of [X]’s age and disposition to move to a household with three other children, away from her mother.
After some close consideration, I have reached the conclusion that it would be premature to change [X]’s living arrangements dramatically at this stage because of my concerns about her possible academic failure. I reach this conclusion because the mother has begun a process of seeking support to change her parenting practices and treatment for her depressive illness.
However, it is too soon to say whether this process is likely to be successful. The major impetus for Ms Bingham seeking to change has been the court based actions of Mr Campbell. Like him and Mr T,
I fear that once this spur is removed, Ms Bingham may revert to her previous behaviour, notwithstanding her previously professed good intentions to do otherwise.
In my view, it would be premature and foolhardy for me to conclude the proceedings at this stage. I am well aware that finality is generally preferable in children’s cases. So far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation [section 60CC(3)(l)].
At this stage, I do not think it would be in [X]’s best interests to move her into her father’s predominant care. This is likely to have implications for Ms Bingham’s personal wellbeing and self-esteem and, in my view, would not be helpful to the maintenance of [X]’s significant relationship with her mother.
However, it would be equally premature to dismiss Mr Campbell’s application at this stage, whilst the prognosis for improvement in [X]’s attendance and punctuality at school remains uncertain.
In all these circumstances, I propose adjourning the proceedings for a further period of 12 months. However, there needs to be some independent monitor to oversee this adjournment and continue to provide some pressure to Ms Bingham to continue with her treatment and the process of improving her parenting skills under the auspices of Anglicare. In these circumstances, I propose appointing an independent children’s lawyer for [X] to perform this role.
The duties of an independent children’s lawyer are multifarious. They include acting as an honest broker between the parents concerned; ensuring that all necessary evidence, concerning a child, is placed before the court; they also include, in appropriate circumstances, ensuring that any necessary report is prepared [section 68LA(5)].
In this particular case, neither Ms Bingham nor Mr Campbell is legally represented. I anticipate that this state of affairs will continue. In such circumstances, an independent children’s lawyer may be able to liaise with each of the parties and bring about a consensual resolution of the proceedings, which will minimise any potential emotional trauma for [X].
In addition, the independent children’s lawyer will be able to liaise with the education authorities, including Mr T and, if necessary, with Anglicare, to ascertain how [X] is faring at school and what has been the progress of Ms Bingham’s engagement with Anglicare.
Most importantly, the independent children’s lawyer will be able to obtain reports from Ms Bingham’s various medical advisors, as to the progress of her treatment for depression. To this end, I will authorise the release of these reasons for judgment to Ms M, Ms Bingham’s treating psychologist and, if appropriate, to her doctor.
I appreciate such a course must mean the prolongation of the proceedings. This cannot assist the parties to have an easier relationship with one another. However, regardless of these considerations, I think I would be naïve to think that the parties in this case will ever have a particularly harmonious relationship with one another, given their past history.
I hope that neither of the parties, reading these reasons for judgment, will think that I am in any way dismissive of Mr Campbell’s concerns about [X]’s education or anything other than highly critical of how
Ms Bingham has dealt with the issue of [X]’s school attendance in the past. However, at this stage, I think it would be too extreme a response, to the problems existing in Ms Bingham’s household, if [X] is moved immediately into the care of her father.
Essentially, I am concerned that there are too many other factors at play, which may adversely impact on [X], if there is this great change and upheaval in her life, at this stage of her development. At the end of the day, as Mr Rudzitis deposes, [X] is a little girl, who is emotionally dependant upon her mother.
As a consequence, in my view, it would be an unwarranted and extreme experiment, for [X] to move into Mr Campbell’s household, particularly whilst it is unclear whether the treatment prescribed by
Ms M and the support offered by Anglicare will bring about sufficient change in Ms Bingham’s household to ensure that issues to do with [X]’s education receive the attention which they warrant.
I do not propose to make any order in respect of the surname, which [X] should bear, other than to dismiss Mr Campbell’s application in respect of this issue. I appreciate that the issue is an important one, so far as Mr Campbell is concerned. However, it was a matter which I determined in July of 2007.
As I have already observed, finality is a desirable attribute, so far as orders to do with children are concerned. This is particularly the case so far as issues to do with a child’s name are concerned. In my view, it would be highly disruptive to [X]’s sense of identity, if she was to be presented with another name at this stage.
I agree with Mr Rudzitis that, so far as [X] is concerned, she is
[X Bingham]. This is the name on her birth certificate. It is the surname she shares with her mother, whose household she has always occupied. In these circumstances, there is no compelling reason, related to [X]’s best interests, to change her current surname.
In contrast, in my view, it is likely to be detrimental to [X] if she is given another surname. Such a course is more likely to be embarrassing to her than a maintenance of the existing status quo. In addition, I do not think that a change in [X]’s surname will enhance her existing level of relationship with her father.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding two hundred and ninety-two (292) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 27 January 2010
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