Potter and Bonham
[2010] FMCAfam 475
•14 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| POTTER & BONHAM | [2010] FMCAfam 475 |
| FAMILY LAW – Final arrangements for care of child aged 5 years and nine months – best interests – presumption of equal shared parental responsibility – whether presumption should be rebutted by virtue of considerations related to child’s best interests – considerations of reasonable practicality – section 60CC factors. |
| Family Law Act 1975, ss.4; 60B; 60CC; 61DA; 65DAA; 65DAC; 65DAE |
| MRR v GR [2010] HCA 4 H v W (1995) FLC 92-598 R & R: Children’s Wishes (1999) 25 Fam LR 712 |
| Applicant: | MR POTTER |
| Respondent: | MS BONHAM |
| File Number: | ADC 3248 of 2009 |
| Judgment of: | Brown FM |
| Hearing date: | 7 May 2010 |
| Date of Last Submission: | 7 May 2010 |
| Delivered at: | Adelaide |
| Delivered on: | 14 May 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Potter |
| Counsel for the Respondent: | Mr Mellows |
| Solicitors for the Respondent: | Legal Services Commission |
ORDERS
All previous orders be discharged.
The parties have equal shared parental responsibility for the child of the relationship [X] born [in] 2004 (hereinafter referred to as “the child”).
The parents are to consult with each other and to make a genuine attempt to resolve any disagreement arising between them about all decisions relating to major long term issues pertaining to the child, which include but are not limited to the following issues:
·The child’s education (both current and future);
·The child’s religious and cultural upbringing;
·The child’s health;
·The child’s name;
·Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
The child live with the mother.
The child spend time with the father as follows:
(a)During school terms on alternate weekends from 4:00pm Friday until 5:00pm the following Sunday or 5:00pm Monday in the event that Monday is a public holiday;
(b)On every second intervening weekend during school terms, as calculated by reference to order 5(a) hereof from 5:00pm on Friday until 5:00pm the following Saturday the intention being the mother will have a full weekend with the child every fourth weekend;
(c)On the second and fourth Wednesday of each month provided such Wednesdays fall during school terms from 4:45pm until 7:30pm so that the father and child may have an evening meal together;
(d)In each short term school holiday from 4:00pm on the Friday of the last week of the school term until 4:00pm on the Saturday of the middle week of the school holiday;
(e)For half of each Easter period in each year so that in odd ending years the child spends Good Friday and Easter Saturday with the father and in even ending years the father spends Easter Sunday and Easter Monday with the child.
(f)From 4:00pm on the last day of the 2011 academic school year and each alternate year thereafter until 4:00pm on 25 December 2011 and each alternate year thereafter and from 4:00pm on 1 January 2012 until 4:00pm on 8 January and each alternate year thereafter and from 22 January 2010 until school has resumed and each alternate year thereafter.
(g)From 4:00pm on 25 December 2010 until 4:00pm on 1 January 2011 and each alternate year thereafter and from 4:00pm on 8 January 2011 until 15 January 2011.
The intention of these orders (f) and (g) being that the parties will alternate the child spending the period of the Christmas holiday for when school breaks up until Christmas night and thereafter the child will be cared for week about until school resumes.
(h)At any other times as may be agreed between the parties.
The father have telephone communication with the child at all reasonable times but no less than at 4:00pm on each Wednesday and Friday when the child is not in his care.
In the event that Father’s Day falls on a weekend that the child is not in the care of the father pursuant to these orders the child will spend time with the father on that weekend from 4:00pm on Friday until 5:00pm the following Sunday in lieu of spending time with the father on the weekend following Father’s Day.
In the event that Mother’s Day falls on a weekend that the child is in the care of the father pursuant to these orders the child will spend time with the mother on that weekend from 4:00pm on Friday until 5:00pm the following Sunday and in lieu thereof spend time with the father on the weekend preceding Mother’s Day.
In the event the child is not in the care of the father on the child’s birthday or the father’s birthday the child will spend time with the father on those occasions from 4:00pm until 8:00pm if the occasions fall on a school day but if on a weekend from 12:00 midday until 8:00pm.
In the event the child is in the care of the father on the child’s birthday or mother’s birthday the child will spend time with the mother on those occasions from 4:00pm until 8:00pm if the occasions fall on a school day but if on a weekend from 12:00 midday until 8:00pm.
The mother and father shall:
(a)keep the other parent informed at all times of their residential address and contact details, including details of landline and mobile telephone numbers and email addresses;
(b)keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners, including psychologists and counsellors who treat the child and authorise those practitioners to provide the other parent with all information that they are lawfully able to provide to parents about the child;
(c)inform the other parent as soon as reasonably practical of any medical condition, significant health issue or significant illness suffered by the child. This order authorises any treating medical practitioner to release information concerning the child’s medical condition to the other parent.
The parents are directed, by virtue of this order, to authorise the principal of each school attended by the child to give to each parent information about the child’s educational progress, including information about the child’s behaviour at school and any necessary information relating to extramural activities in which the child is engaged and supply each of them with copies of school reports, photographs, certificates and awards obtained by the child provided that each such document is to be supplied at the cost of the parent receiving it.
Each parent has the right to attend at the child’s school for all events that are routinely attended by parents, including parent teacher interviews.
Within twelve months of the date of these orders each party complete a “Kids R First” post separation parenting course as provided by Anglicare. It being noted that the parties are not required to attend the same course dates but it is envisaged that they will undertake separate Kids R First courses.
All applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Potter & Bonham is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 3248 of 2009
| MR POTTER |
Applicant
And
| MS BONHAM |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Potter and Ms Bonham are the parents of [X], who was born [in] 2004.
These proceedings have been concerned about ongoing arrangements for [X]’s care. During the course of the two day hearing, it became clear to me that [X] is much loved by both his father and mother.
Mr Potter and Ms Bonham[1] have this in common, they both want the best for [X], both now and for the rest of his life. Accordingly, [X] is lucky to have two committed parents, who love him very much.
[1] I mean the parties no disrespect but this is how they each referred to the other, during the course of the hearing. As such, it seems a more appropriate form of designation than “the father” and “the mother”. It is also more in keeping with the informality of the proceedings to use the parties’ given names rather than to call them Mr Potter and Ms Bonham respectively.
When the case started, Mr Potter wanted [X] to live mainly with him and spend alternate weekends and holidays with Ms Bonham. To his great credit, Mr Potter now concedes that this is not likely to be a workable solution to the parenting problems, which currently confront him and Ms Bonham and so is not likely to be the best outcome for [X].
For reasons which I will explain in a moment, Mr Potter and Ms Bonham have not had a good parenting relationship with one another for some time. They have not communicated well and there has been open conflict between them, sometimes in the presence of [X].
It seems clear from the evidence of Ms Kerry Cavanagh, the court appointed expert in the case, that this parental conflict has had a bad effect on [X], who has begun to display some significant behavioural problems.
As is often the case, when parents have a poor relationship and do not trust one another, Mr Potter has blamed Ms Bonham for [X]’s problems and Ms Bonham has blamed Mr Potter. In the past, they have not been able to sit down together and discuss these issue and work out ways to approach them together.
This was the background to Mr Potter commencing these proceedings, which he did on 18 August 2009. Originally, he wanted orders that would have seen [X] living week about with each of his parents. If this occurred, he wanted the court to make orders that would see him and Ms Bonham having equal shared parental responsibility for [X].
Ms Bonham’s position has always been that [X] should live mainly with her and spend time with his Dad on alternate weekends and during school holidays. More importantly, in the context of this case, as it has turned out, she wants an order made in her favour for sole parental responsibility.
When the final hearing began on 6 May, Mr Potter told me that his position had changed and he wanted [X] to live mainly with him and spend time with his mother, along the same lines as Ms Bonham had proposed for him.
In part, Mr Potter’s position stemmed from practical reasons, relating to where the parties currently live and work, which seemed to rule out the week about arrangement, which he had originally favoured.
Mr Potter is 31 years of age. He lives in [E]. He shares a house with his girlfriend Ms K and her two children, who are aged 15 and 10.
Before he lived with Ms K, Mr Potter lived in a granny flat at [suburb omitted], behind his father and step-mother’s home. He has a step-brother [Y], who is aged about 11. [X] and [Y] are close.
Mr Potter works at [P] in [E]. He works full-time from 7:00am to 3:00pm, Monday to Friday. He gets four weeks annual leave. Usually he has to take the majority of this leave at Christmas time. [P] is located around seven minutes from Mr Potter’s home.
Ms Bonham is 25. She has also re-partnered. She lives with Mr R in a rented house in [B]. She works [in the hospitality industry]. Mr R works [in the transport industry].
Mr Potter has been with [P] since January 2005. Ms Bonham is a permanent casual. She is able to work around [X]’s school times. On Wednesdays to Fridays, she works from 9:00am until 5:00pm, but on Mondays and Tuesdays she starts at 11:00am.
It takes up to an hour to drive between [E] and [B]. The traffic is not too bad on weekends but it can be heavy, during peak hours, on week days.
Mr Potter is unable to change his working hours, although in future, he would like to change his occupation and become an [occupation omitted].
[X] started at [S] School in July 2009. The school is in [B], close to where [X] lives with Ms Bonham.
[S] School is a good school. Ms Bonham does not want [X] to leave it, particularly as the school principal and other teachers are making a special effort to help [X].
To his great credit, Mr Potter now also agrees that it would not be a good thing or in [X]’s best interests to change schools, which would have to happen, if he lived in [E] with his Dad.
Mr Potter also accepts that [X]’s behaviour has begun to settle down and he has made some friends at the school. He recognises that it is likely to be difficult for [X] to start at a new school and make new friends and this might put his behavioural improvement back.
Given Mr Potter’s work schedule, and the distance between his home and Ms Bonham’s, a shared care regime is just not feasible, if [X] is to remain at [S] School.
In addition, regrettably, it is difficult to see how more time with his father could be factored into [X]’s regime, during the school week, given the time Mr Potter starts work in the morning and how long it is likely to take to drive from [E] to [B].
[X] might have to get up around 5:00am and then spend a considerable time in before school care, if he is to spend an overnight period of time with Mr Potter, during the school week. Mr Potter has come to the difficult but inevitable conclusion that this is just not workable.
Previous care arrangements for [X] have been complicated and changes to them highly controversial. This has been one of the reasons why
Ms Bonham and Mr Potter’s relationship has been so poor of late.
Ms Bonham and Mr Potter met in late 2003 and began to live together soon after. Obviously, [X] was conceived at an early stage of the relationship. They separated in April of 2006, when [X] was not yet two years of age.
[X] has been in daycare since he was six months old, as both his parents worked full-time. When they separated, initially [X] was cared for in a three days about roster, by each of his parents. This changed to a week about arrangement, after about six months. This shared care arrangement continued until July of 2008.
Accordingly, [X] has a close and familiar relationship with each of his parents and is used to being care for by both of them. He must also be well aware that his parents live in separate households. This has been the reality of his life, for as long as he can remember.
It is also the case that [X] is well aware that his parents do not get on well together and actively dislike one another. Given his close relationship with each of his parents, this must create conflicts of loyalty for [X] and lead to some emotional instability for him.
The most eloquent evidence of this emotional confusion, on [X]’s part, arises from something he told Ms Cavanagh. He told her that he wished that his parents lived together but he knew that this would never happen because “they hate each other”.
The reasons for the stopping of the week about arrangement are controversial and created great hostility between the parties. Up to that stage, Ms Bonham and Mr Potter had lived reasonably close together, in the northern suburbs of Adelaide and so it was easy for [X] to be exchanged between them at his child care centre.
It is Ms Bonham’s case that a dishonest landlord “ripped her off” and evicted her and [X] for no good reason. In those circumstances, she had no alternative but to seek temporary accommodation with friends, where she could, first in [suburb omitted] and then, when she got permanent accommodation for herself, in [suburb omitted].
Mr Potter was angry because it was his perception that this decision was foisted upon him without any discussion. He says that he was simply told by Ms Bonham that [X] would not be available for collection at his normal child care centre at [L], but had moved to a new child care centre in [suburb omitted].
Mr Potter had been pleased with the child care centre in [L] because [X] was familiar with it and he thought it provided him with security, stability and a network of friends. It was also convenient to Mr Potter and his work.
Mr Potter suspected that Ms Bonham had moved with the intention of upsetting his close relationship with [X]. He has also been angry that Ms Bonham has elected to remain living in the southern suburbs of Adelaide, in the period since, although she has moved several times since July of 2008.
Because of the move, since July of 2008, Mr Potter has been spending time with [X] on alternate weekends and during some holidays. There was a very significant dispute between the parties at Easter time in 2009. I am satisfied that neither party was without fault on this occasion.
The parties’ parenting relationship, never good at the best of times, seems to have deteriorated in this period. Mr Potter is critical of
Ms Bonham because she has moved several times since mid-2008.
He believes this instability, in Ms Bonham’s accommodation, has manifested itself in [X]’s behavioural problems and there must be something seriously wrong with how she takes care of [X].
Ms Bonham believes that [X]’s behavioural issues arose at an earlier stage, when he was about three years of age, and so when he was still being parented in the equal time arrangement.
She also has her own concerns about how Mr Potter takes care of [X]. In particular, she is worried that [X] appears to be exhausted, whenever he comes home from his father’s on weekends.
Ms Bonham is also concerned at the type of video games, which [X] plays at his father’s place, particularly a game called Mortal Combat, which she believes is graphically violent.
Whatever is the reason for it, it is clear that [X] has been demonstrating some very challenging and disturbing behaviour, particularly at school. This has been of concern to both Mr Potter and Ms Bonham and indeed the principal and teachers at [S] School.
In March of 2010, Ms B, a teacher at the school, wrote a letter, which Mr Potter has, which said in part as follows:
“My name is Ms B and I am an Early Years teacher at [S] School, [B]. I am writing to you regarding one of my students, [X]. [X] is a Reception student in my class and has completed 3 terms of schooling. He is 5 years old. During my time as his teacher this year, I have observed that [X] has very complex social, emotional and behavioural needs. He displays erratic, aggressive and defiant behaviour on a daily basis and has done so since beginning school in July 2009.”[2]
[2] See exhibit E to the father’s affidavit filed 6 April 2010
Although Ms B considered [X] had excellent language skills and was a bright child, she clearly had very serious concerns about his behaviour in a number of areas. She wrote that [X] often:
Ø Refuses to comply with reasonable requests
Ø Deliberately disobeys rules
Ø Finds loopholes in rules
Ø Does not seem to care if privileges or rewards are removed
Ø Becomes aggressive, violent, disobedient when consequences are given
Ø Makes threats to adults and peers
Ø Blames others for his wrong doing
Ø Is indignant about his own innocence
Ø Very persistent if ignored and will escalate behaviour until an adult responds
Ø Justifies behaviours saying rules, requests are unreasonable.
This type of behaviour was clearly very concerning to Mr Potter. Given his poor relationship with Ms Bonham, particularly after what had happened in July 2008, it is perhaps understandable that he should blame Ms Bonham for it.
Similarly, I have no reason to believe anything other than that
Ms Bonham was equally concerned, when the school raised issues to do with [X]’s behaviour with her, particularly that he had behaved roughly with other children.
In these circumstances, it is equally understandable that she would blame Mr Potter for [X]’s behaviour, particularly given her worries about the type of video games she understood [X] had been playing with him.
As I say, this was the background to Mr Potter commencing these proceedings. Much has changed since the hearing of the evidence in the case began. The parties have heard Ms Cavanagh’s evidence. They have also heard the evidence of the other parent concerned.
In particular, Mr Potter has learnt about some of the things the staff at [S] School have been doing for [X], particularly in respect of assisting him to have a course of therapy with Ms H, an experienced child psychologist. This has led him to change fundamentally his approach in the case.
Although quite different in personality, it is my impression that both parents are intelligent and well motivated parents. As such, each of them is capable of understanding expert evidence and taking it on board.
I suspect that each now has a far greater understanding of the psychological consequences, for a child of [X]’s age, of persistent parental conflict and the dangers, for such a child, of poor parental communication.
As a result of Mr Potter’s concession that he is no longer seeking to be the predominant residential parent and his acknowledgement an equal time arrangement is impracticable, there remains little for the court formally to do, as the parties themselves have agreed on most of the practical issues to do with [X].
The major issue in dispute between them concerns whether
Ms Bonham should have sole responsibility for making major decisions to do with [X] or whether the parties should have what is called equal shared parental responsibility for [X].
The evidence
Mr Potter is a determined person. It takes a considerable degree of courage to present your own case in the formal and, to most, intimidating and unfamiliar environment of the court room.
It also takes a big person to change course in the middle of a case and make concessions in favour of an outcome which is not to one’s choosing and instead remain focussed on what is best for one’s child, rather than for oneself.
I found Mr Potter to be an honest person, who was frank in his evidence to me. I also thought that Ms Bonham was focussed on what was best for [X]. She too was candid in her evidence. Both Mr Potter and Ms Bonham were prepared to own up to past failings, both as parents and in their relationship with one another.
So, unlike many cases which come to court, this present case seemed to represent a shift in attitude on both sides and a common commitment, from both Mr Potter and Ms Bonham, to communicate better and to try and see the other’s point of view, in future.
This must be a good thing for [X] and the parties are to be congratulated for it. Certainly, I think their apparent change in attitude is genuine and focussed on what is best for [X].
In particular, both parties agreed that they would undertake an intensive post-separation parenting course. One of the aims of such a course is to assist separated parents with strategies to communicate better and parent their child more consultatively together.
Ms Cavanagh’s evidence was very important in this case. Mr Potter described her as “wise”. She is certainly very experienced.
Ms Cavanagh has been a clinical psychologist for around nineteen years. A significant proportion of her practice deals with the preparation of family reports. Accordingly, she has experience in assessing children and their relationships, particularly in the context of parental conflict.
In the past, Ms Cavanagh has been employed as a clinical psychologist at the Child & Adolescent Mental Health Service. She has also worked at the Children’s Contact Service at Hindmarsh, which is a service which assists parents to exchange their children, particularly in high conflict situations.
Of very great significance, in the present case, is the fact that, prior to her qualification as a psychologist, Ms Cavanagh was a primary school teacher for many years. Accordingly, she has first hand experience of the needs of children of [X]’s age, in the classroom setting.
Ms Cavanagh had a significant advantage over me in this case. She was able to speak directly with [X] and hear him talking in his own voice and using his own words. She was also able to see [X] interacting directly with each of his parents. Accordingly, her assessment of [X] is based on a first hand experience.
Ms Cavanagh considered that [X] had a close relationship with each of his parents and loved both his mother and father. She thought it probable that [X] would have some memory of the time when he had been cared for equally by both his parents. This reinforced her impression that [X] had a close relationship with his father.
Ms Cavanagh was greatly concerned at reports of [X]’s poor and disruptive behaviour at school. She considered it extremely likely that [X] was acting out his distress, which was likely to be caused by the conflict between his parents and, to use Ms Cavanagh’s expression, his behaviour at school was a “cry for help”.
As such, Ms Cavanagh did not think that [X] was being naughty at school. Rather, she thought it more likely that [X] was not coping emotionally and was in effect saying, both to his parents and others around him “things in my world are not going right”.
She considered that, as an only child, [X] was likely to be more vulnerable to parental conflict and would have less resources to deal with it than some other children, particularly those with a sibling or whose family was more intact.
She also thought that he was a child, who was more likely to be prone to act out his emotional distress, rather than to internalise it. She was very concerned to learn that [X] had expressed some negative feelings about himself and had known the word suicide, let alone used it in reference to himself.
As Ms Cavanagh understood that [X] had been exposed to significant levels of parental conflict, over a lengthy period of time, and given his poor and disruptive behaviour at school, she considered him to be an extremely vulnerable child.
At this stage of his development, particularly given his status as an only child, Ms Cavanagh considered that it was important for [X] to begin to develop social skills and make friends with his contemporaries.
In this context, she was worried about the prospect of [X] becoming isolated because of his poor classroom behaviour. This, in turn, might lead to him being delayed in acquiring essential literacy and numeracy skills, as he moved through primary school.
Ms Cavanagh was particularly impressed with the support given to [X] and Ms Bonham at [S] School. She thought the teachers had implemented appropriate strategies to moderate the extremes of [X]’s behaviour. She was particularly impressed that the school had been willing to assist Ms Bonham in paying for [X] to attend upon Ms H.
In this context, Ms Cavanagh considered that it would be very detrimental for [X] to change schools at this stage. She did not think that he was a well adapted child socially. As such, she was concerned that his social skills would most likely regress, if he moved and this would be positively harmful to him.
It was Ms Cavanagh’s assessment, which I share, that the staff of
[S] School know [X] well and were working efficiently with [X] and Ms Bonham to improve his behaviour. This was a theme taken up by Ms Bonham herself, in her evidence, when she confirmed that [X]’s behaviour was improving.
At this stage of his development, Ms Cavanagh considered that [X] had a pressing need for stability, particularly in arrangements for his care. This was another factor, which militated against there being any significant change in arrangements for his care, at this stage.
Ms Bonham and Mr R are expecting their first child together, later this year. [X] is aware that his mother is expecting and is excited at the prospect of having a younger brother or sister. Ms Cavanagh considered that such a sibling would add an element of stability to [X]’s life.
To his very great credit, Mr Potter has accepted this sensible evidence from Ms Cavanagh. He has indicated to me that, in these circumstances, he would not want to take [X] out of [S] School. Rather, he would want to be actively engaged with the school, in its various strategies to assist [X].
One of the complicating factors in this case is [X]’s significant relationship with his father, which has been developed over several years, particularly during the period when he was parented in an equal time arrangement.
In this context, Ms Cavanagh observed [X] with each of his parents and also investigated whether [X] had any preferences of his own, in respect of his living arrangements.
What Ms Cavanagh found is significant, in my view. She observed
Mr Potter and [X] to chat amicably and to play enthusiastically together. Mr Potter was observed to be properly directive of [X] and to be in control of the activities concerned.
With his mother, [X] was observed to push the boundaries and to be less well behaved. He ignored some of his mother’s directions.
In interview, [X] “clearly and unequivocally” stated that he wanted to live with his father because “I just like my Dad”. This view was reciprocated in a second interview.
In the evaluation section of her report, Ms Cavanagh wrote as follows:
“[X] appears to have close and loving reciprocal relationships with each parent but has stated, clearly and unequivocally, that he wants to live with Mr Potter. I observed that [X] was well behaved with Mr Potter but less well-behaved with Ms Bonham, with whom he pushed the boundaries several times and appeared to ignore her admonitions. He is clearly very much aware of the animosity between his parents and has stated that Ms Bonham doesn’t want him to live with Mr Potter.”[3]
[3] See family report at page 12
Accordingly, although Ms Cavanagh was not in favour of a significant change in living arrangements for [X], she did consider that it was clearly the case that [X] yearned to spend more time with his father. She also considered that it was likely to be in [X]’s best interests, if possible, for him to spend time with his father in a variety of contexts and settings.
Ideally, she considered that it would be beneficial for [X] to spend time with his father on weekends and in the more disciplined setting of a school night and morning, as well as at other times, which would allow [X] to “hang out” with his father, in a relaxed setting.
The stability of Ms Bonham’s accommodation and the number of moves she has undertaken in the past few years is of great concern to Mr Potter, who has sought out social science literature regarding the issue and its potential detrimental consequences for children.
In interview with Ms Cavanagh, [X] also raised it as a concern. He said he felt “tired and crazy” about moving. However, it was apparent to Ms Cavanagh that [X] was well cared for.
From Ms Cavanagh’s perspective, stability and continuity of emotional support and care arrangements for children were of more importance than the stability of accommodation itself. I agree. In this regard, I accept that Ms Bonham has been emotionally available for [X], since the shared care arrangement came to an end.
Ms Bonham acknowledges that she has had to move on several occasions since July of 2008. However, it is her case that Mr Potter has overstated the number of moves and she had no alternative but to move on each occasion she did so. I accept her evidence in this regard.
Until recently, Ms Bonham and Mr R were considering moving to [omitted], where they had plans to purchase a unit. This plan has been put on hold for financial reasons. She and Mr R have a twelve month lease on their home in [B].
Mr R has filed an affidavit in these proceedings. He and Ms Bonham have been in a relationship since July of 2008. He has deposed that he and [X] enjoy skateboarding and playing tennis together. Mr R has a dog, which is seven years of age. [X] enjoys playing with the dog.
Mr Potter does not know Mr R apart from nodding at him, when he collects and returns [X]. However, again to his credit, Mr Potter does not suggest anything other than that [X] has a good relationship with Mr R. In these circumstances, he did not seek to cross examine Mr R. He also indicated that he would like to know Mr R better.
Ms Bonham confirmed that she and Mr R have been living at [B] since July of 2009. Her sister Ms C lives close by. Ms C has a two year old son, [Z], who has a close relationship with [X]. Ms C assists
Ms Bonham with caring for [X], when she (Ms Bonham) is at work.
Ms Bonham has told me that she would like to get to know Mr Potter’s partner, Ms K, better. Clearly Ms K is an important person in [X]’s life. Accordingly, if [X] has a sense his dad knows Mr R and his mum knows Ms K, this may make him feel that his life is not so divided.
This is why I asked Ms Bonham if [X] had a photo of his dad in his room at her house. It is important, I think, that children do not think their other parent is not to be mentioned when they are at their mum or dad’s house.
It is Ms Bonham’s case that she has been working actively with the staff at [S] School to fix [X]’s behavioural issues. The school has a step or card system to remind [X] of his behavioural responsibilities in the classroom. These responsibilities are reinforced by visual supports, placed around the classroom. Ms Cavanagh is particularly in favour of these visual supports.
In addition, [X] has been able to have some one on one time with an education support officer, who works through the consequences of [X]’s poor behaviour with him. Ms Bonham says she has felt “overwhelmed by the support”, which she has received at [S] School.
Ms Bonham has been concerned about [X]’s behaviour for some time. In the middle of 2009, she arranged for him to have some counselling at the Child & Adolescent Mental Health Service (CAMHS). More recently again, she has attended on her general medical practitioner and now has a mental health plan for [X].
Under the plan, she is able to secure some Medicare funding for [X] to attend a psychologist. With the assistance of the Catholic Education Authorities, this has led to [X] having an appointment with Ms H, in the next few days.
The Catholic Education Authorities are going to assist with any gap arising in the payment of Ms H’s professional fees. Ms Bonham is going to pay for [X]’s initial assessment.
All these factors reinforce to me Ms Bonham’s commitment to securing [X]’s best interests. It also underlines Ms Cavanagh’s view that [X] is attending a very supportive school and it would be counter productive to move him away from it.
Ms Bonham’s evidence is that [X] has begun to make friends at school, after a slow start. She now says he has a best friend, [name omitted], who lives nearby.
It remains one of Ms Bonham’s concerns that [X] is invariably very tired, when he returns from Mr Potter’s home. In his evidence,
Mr Potter indicated that [X] went to bed at around 10:00pm on Saturday evenings.
I accept that, from Mr Potter’s point of view, time with [X] is precious and the two have lots of things they want to do together but, in my view, this is just too late for a child of [X]’s age.
To his credit, Mr Potter accepted this was likely to be the case. However, for obvious reasons, he would want to spend as much time as possible with [X] and it seems clear from Ms Cavanagh’s report that the two have a special rapport with one another, which needs to be fostered and developed.
Although in some ways a man of few words, Mr Potter is a sensitive and emotional person. It is his evidence that [X] is invariably distressed, when he comes to return to his mother’s home, at the end of each alternate weekend. Mr Potter indicated that he himself invariably cried on the way home, after having dropped Mr Potter back.
In my view, this evidence is important because it indicates the strength of the emotional currents surrounding [X]. Ms Cavanagh considered it almost certain that [X] would pick up on these emotions and would respond to them.
Accordingly, if he saw his father being upset, in the period leading up to his return to his mother, [X] is likely to respond to this behaviour. At his age, [X] would not have the intellectual development to understand why his father was so upset. Rather he would just respond to his father’s emotions, as best he could. Most typically by mirroring them.
Mr Potter’s concern at [X]’s presentation, prior to being returned to
Ms Bonham, was another factor which led to him instituting these proceedings. It was initially Mr Potter’s position that he thought he could provide a better and happier home for [X] than Ms Bonham could.
However, because of the mistrust between the parties, Mr Potter does not really know what happens at Ms Bonham’s house. Similarly
Ms Bonham does not know what goes on at Mr Potter’s. When [X] is upset or tired, for whatever reason, both parents will think the worse of the other.
Without wanting to be unduly critical of Mr Potter, it is clearly the case that he has not thought through, with any detail, where [X] would attend school, if there was to be a change in where [X] mainly lives or how other aspects of this major change would happen. Although there are undoubtedly good schools near where he lives, Mr Potter now does not want to jeopardise [X]’s progress at [S] School.
In addition, to his credit, Mr Potter concedes that Ms Bonham ensures that [X] is properly dressed; receives proper medical attention; and is loved and well cared for, in his mother’s home. I was pleased to hear these positive acknowledgments from Mr Potter. All too often, proceedings like this focus only on the negative aspects of a parties’ parenting and positive aspects are only begrudgingly acknowledged.
Mr Potter told me about some of the things he does with [X]. They go to the movies, play lego, kick the footy and do a lot of drawing.
I accept that Mr Potter feels he does not have enough time to interact with [X]. Perhaps this is why the two stay up late on Friday and Saturday evenings.
[X] likes to eat pumpkin soup and to have BBQs and salads with his father. As previously indicated, [X] also likes to spend time with
Mr Potter’s step-brother [Y] and visit his paternal grandparents.
Accordingly, there are many positive aspects to Mr Potter’s parenting of [X]. He pays child support regularly and also contributes to [X]’s school fees at [S] School.
As with most children his age, [X] enjoys playing computer games. Mostly, at his father’s home, he plays appropriate games designed for children of his age.
With the benefit of hindsight, Mr Potter accepts that allowing [X] to play Mortal Combat was not “the best idea”. Ms Cavanagh and
Ms Bonham agree. Mr Potter has deposed that he will be more watchful in future.
In my view, the area of parenting for which both parties deserve some criticism, concerns the exposure of [X] to the significant conflict between them. Mr Potter wanted me to read a number of text messages, which Ms Bonham had sent him.
Ms Bonham accepted that she had not always sent tactful or respectful messages to Mr Potter. Mr Potter also conceded that he had sent some angry messages to Ms Bonham.
Both agreed that their messages had been more moderate in tone in recent times. In these circumstances, I was not interested in investigating the various text messages in any great detail.
Mr Potter also acknowledged that it was not very grown up of him to make threats to Ms Bonham, on his facebook site, shortly after these proceedings had been commenced. I hope, in future, both parties think carefully of the damage they can do to their parenting relationship before sending or posting any electronic messages to or about the other.
What happened at Easter of 2009 is emblematic of what was, I hope, the past nature of the parties’ poor and vindictive relationship with one another. It has been Mr Potter’s perception that Ms Bonham dictates the terms on which he can see [X] and uses the child as a weapon against him, particularly by threatening to withdraw his time with [X] from him. Mr Potter has also been concerned that this threat has been used as a means of disciplining [X] for previous poor behaviour.
Leading up to Easter 2009, Ms Bonham had indicated to Mr Potter that she wanted to take [X] to celebrate Easter with her parents, who had recently moved into a new home. Mr Potter was not happy with this arrangement, as it was his understanding that it was his turn to spend the whole of Easter with [X].
The parties had arranged to exchange [X] in a park. Neither party handled the incident well and both were angry.
As a result, there was an ugly incident between them and Mr Potter left the park with [X], which was not what Ms Bonham had wanted.
Mr Potter justifies his behaviour because he asked [X] later, in his car, whether he wanted to return to mummy and was told that he ([X]) did not.
In my view, this incident is highly regrettable for a number of reasons. Firstly, [X] was exposed to an unpleasant argument between his parents. Secondly, the parties themselves were unable to make appropriate concessions with one another, so that [X] could spend at least a part of Easter with each of them. Thirdly, and perhaps most importantly, it was unfair to make [X] choose between his parents, after this unfortunate incident.
In any event, putting this incident aside, it seems that the parties’ parenting relationship has improved in the twelve months since Easter 2009. It is also my apprehension that the current round of proceedings has cleared the air somewhat between Mr Potter and Ms Bonham and this, of itself, has been a healing process.
The legal principles which the court must apply
The service of [X]’s best interests is the most important consideration in this case. [Family Law Act section 60CA].
In determining where those best interests lie, the court must consider the primary and additional considerations set out in section 60CC of the Family Law Act.
There are two primary considerations – firstly the need to ensure that any child concerned has a meaningful level of relationship with both his or her parents – secondly the need to ensure the child is protected from harm, both physical and psychological harm, which may arise if he or she is exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned.
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.
Pursuant to section 60CC(3)(m), I am permitted to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed and an appropriate idiosyncratic order made.
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 of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility [section 61DA(4)].
An order which provides for shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child concerned [section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Pursuant to section 65DAE, parents do not have to consult on matters, which are not concerned with long term issues, when the child is spending time with one or other of them. This is to ensure that the myriad decisions, which have no long term significance concerning a child and which need to be made on a day to day basis, by both of the child’s parents, can be made.
The Family Law legislation emphasises the importance of parents being actively involved in their child’s life – in schooling; sporting activities and recreation; and in the child’s daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the child concerned from harm.
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.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from s.65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child, not merely whether it is theoretically desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[4]
[X]’s best interests – the section 60CC factors
[4] See MRR v GR [2010] HCA4 at paragraphs 13 and 15
a) The primary considerations
In my view, this is not a case about abuse, neglect or family violence. Rather, it is a case which must focus on how [X] may have the most meaningful relationship, with each of his parents concerned, given the practical and logistical difficulties in this case.
I am satisfied that [X] already has a meaningful level of relationship with both his parents. Mr Potter has conceded that [X] needs to live with his mother predominantly in future. The question for the court must be how can [X] enhance his relationship with his father, given
Mr Potter lives in a distant suburb from him and starts work early in the morning.
Ms Bonham has given some thought to this issue and has proposed that [X] spends some more time with his father on an additional weekend each month. She proposes from after school on Friday until some time on the following Saturday evening.
This seems to me to be a good idea, which Mr Potter is interested in taking up. In addition, it seems to me that it would be a good thing if [X] could have an evening meal, with his father, on a regular school night. If this arrangement was well planned, I do not think it would be too disruptive for [X].
Ms Bonham told me that [X] enjoys eating spaghetti. I am sure there is some appropriate restaurant convenient to his house, where he could enjoy his favourite meal. Mr Potter has indicated that he is also interested in taking up such an opportunity.
To the parties’ credit, they have also been able to agree some arrangements for Mr Potter to spend time with [X], over the Christmas period, when Mr Potter’s work has closed down.
The parties have also agreed on the arrangement, which I proposed, which would see [X] spending the whole of the Mother’s Day and Father’s Day weekends with his mother and father respectively.
These arrangements may not lead to the theoretically optimal arrangement for [X] to spend time with his father, but they do reflect the reality of his parents’ situation. I am satisfied that they will ensure [X] has an appropriate level of meaning in his relationship with his father, given the logistical constraints of his parents’ accommodation and employment circumstances.
The additional considerations
Although [X] is a little boy, I must still consider any views expressed by him. Obviously the weight to be given to those views is dependent upon his maturity and level of understanding.
The court is required to explore a child’s perception of what he or she feels is to be best for him or her. Very often these perceptions will be ambivalent and difficult to express or quantify. This is particularly so with younger children. This does not mean that a child’s views should be disregarded.
To the contrary, over time, there has been an increase in the judicial regard given to the views of children in proceedings such as these. It is often said that children have a right to be heard. Certainly children’s views are important and requiring of being given “proper and realistic weight” rather than token regard.[5]
[5] See H v W (1995) FLC 92-598 at 81,944
It is also impossible to catalogue all the factors which may be at play in shaping a child’s view in any given case. Matters of individual preference are idiosyncratic but no less important for that.
It has been said that the process of weighing up a child’s professed view 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.[6]
[6] See R & R: Children’s Wishes (1999) 25 Fam LR 712 at 724
In this case, I have been struck by what [X] said to Ms Cavanagh and how she observed him to interact with his father. Although it may be too soon to say, it is possible that, in the longer term, [X] would prefer to live with his father. His expressions to Ms Cavanagh may be indicative of a deep yearning on his part.
Certainly, the views expressed by [X] would seem to be indicative of a very close relationship between him and his father. However, on any view, [X] also has a close and loving relationship with his mother.
One of the factors, which has impressed me in this matter, is my impression that [X] is at the centre of a rich network of family connections. I have not heard directly from any of the relevant relatives concerned but accept that he enjoys good relations with his paternal grandparents and his uncle, [Y], who is more analogous to a brother than an uncle.
On his mother’s side, it is unchallenged that [X] is close to Mr R. In addition, it seems that he spends regular periods of time with his Aunt [Ms C] and her son. In addition, I have no reason to think anything other than that [X] enjoys close ties with his maternal grandparents.
I think Ms Cavanagh is right to characterise [X] as a vulnerable child. He is also a bright child, with a tendency to act out his emotional distress in highly visible and disturbing ways. As such, he is at risk of ongoing social disadvantage, particularly in a classroom setting. He does not make friends easily.
In addition, like many children of his age, he does not particularly relish change. I accept Ms Bonham’s evidence, particularly in the form of the material from [S] School, that [X] is settling in at the school and the behaviour modification programs are starting to work. In addition, I accept that [X] has begun to make friends at school.
These are promising signs for [X], which need to be supported by whatever orders the court finally makes. In my view, a view which is now supported by Mr Potter, it would be too drastic a change for [X], if he was to go and live predominantly live with his father and start afresh at a new school. I am satisfied that such an outcome would not be in [X]’s best interests.
In the past, Mr Potter has had significant criticisms of the mother’s capacity as a parent. He has more recently stepped back from many of those criticisms. My finding is that Ms Bonham is able to supply [X]’s emotional and educational needs. In regards to this latter aspect, I am impressed by her efforts at [X]’s school and the involvement of Ms H in providing counselling for him.
I am required to consider the attitude which each party has displayed to the responsibilities of being a parent. Parental responsibility is a complex and multifarious concept. It includes such things as being financially responsible for a child; playing an active role in the life of any child concerned; and, importantly in a case such as this one, facilitating and supporting the relationship between the child concerned and the other of his or her parents.
Mr Potter was angry with and critical of Ms Bonham, when she moved [X] from the northern suburbs and so brought the equal time arrangement to an end. He argues that, in so doing, she displayed a flawed understanding of the responsibilities of being a parent.
Up to this stage, I am satisfied that Mr Potter has aspired to be fully involved in all aspects of [X]’s life. I do not think that it can be said that he has ever failed to spend time with [X] or to communicate with him. In addition, it is unchallenged that he makes significant financial provision for [X].
If the parties do have equal shared parental responsibility for [X], there will be an obligation upon them to confer about major long term issues to do with [X]’s welfare and attempt to resolve those issues consensually.
Major long term issues include a parent wishing to change his or her address in such a manner that it will affect a child’s existing level of relationship with the other parent concerned, as well as matters to do with education, which is likely to be particularly important, so far as [X] is concerned.
In the present case, I acknowledge that Mr Potter and Ms Bonham are likely to have some problems in consensually resolving many issues to do with [X]’s long term care.
However, in my view, the level of difficulty is not so extreme that an interested parent, such as Mr Potter, who is vitally concerned about all aspects to do with his child’s care and, as such, has much to offer that child, should be excluded from significant parental decision making responsibility.
Ms Bonham’s move in 2008 was badly handled. It had long term implications for [X]’s well being, particularly in the sense that it led to his parents having a severely compromised parenting relationship for some time, which is still not yet fully repaired. Mr Potter felt disempowered by what he saw as a unilateral and selfish decision.
As I have pointed out throughout this judgment, it is to Mr Potter’s credit that he has been able to focus on [X]’s best interests, rather than on his own understandable feelings and aspirations to spend more time with [X].
In my view, the concessions he has made in the case are the most hopeful indications that the parties may not have to institute further proceedings, in respect of [X], in future, but rather will be able to parent him cooperatively and consultatively in future.
Conclusions
This case began as a typically unhappy one, between warring parents who mistrusted one another and were unable to see the other’s point of view. My perception is that it has not finished this way, largely because of the concessions made by Mr Potter.
In this sense, the process of court proceedings, often highly destructive for parents, has served some useful purpose in this case. My perception is that there has been a shift in attitude in each of the parents concerned.
In these circumstances, although at the case’s conclusion, the parties were able to resolve the vast majority of issues in dispute between them, I felt obliged to give some careful thought to the evidence which had been led in the case, as I hope this judgment shows.
Having considered all of the various section 60CC factors applicable, I have come to the conclusion that it is likely to be in [X]’s best interests, if his parents have equal shared responsibility for him.
Mr Potter is vitally interested in every aspect to do with [X]’s care and, as such, has much to offer [X], both now and in future.
Given [X]’s views, as expressed to Ms Cavanagh, it also seems to be that [X] has a particularly close bond with his father, which in part stems from the fact that [X] was parented in an equal time regime, from his earliest years. It may also be the case that [X] is just close to his Dad, for personal and idiosyncratic reasons.
[X] too has a close relationship with his mother. She has selected a good school for him, where he is doing well. It would not be a good idea to change his school now. Ms Bonham has also shown that she is committed to [X]’s best interests.
Accordingly, it is my finding that [X] has two good parents, who although they have different temperaments and attitudes to the responsibility of being parents, are equally committed to doing the best for [X]. As such, it is my view that they should share equally the parental responsibility for [X].
Fortunately, this is not a case concerned with family violence, neglect or abuse. Accordingly, the presumption of equal shared parental responsibility is not rebutted by any of these considerations.
However, the reality of [X]’s family life rules out that [X] should live with his parents for equal periods of time or, in Mr Potter’s case, for substantial and significant periods of time, no matter how theoretically desirable this would be for [X].
The distance between Mr Potter’s home at [E] and Ms Bonham’s home in [B] and the necessity that [X] should continue at [S] School simply makes either of these outcomes impracticable. To his credit, Mr Potter accepts that this is so.
Accordingly, given Mr Potter’s work schedule, it means that [X] can only spend time with his father at weekends and during school holiday periods.
I will make orders that will see [X] spending slightly more than half of the weekend periods occurring each month with his father. I will also make an order that will see [X] having an evening meal, with his father, on a school night, on a couple of occasions each month.
Ideally, I would have wanted, as would Mr Potter, for [X] to have at least some overnight time with his father during the school week so that Mr Potter could be involved with [X]’s homework and the like.
The aim being that [X] got a sense that his dad was involved with and interested in what he does at school and also so that Mr Potter could get [X] off to school in the more disciplined setting of the school week. This is just not possible. This is the next best thing.
I will also make orders that deal with special occasions and, I hope, emphasise to both Ms Bonham and Mr Potter that they are to be both involved in parenting [X] and one of them is not more important, so far as issues to do with [X]’s health and education are concerned.
The parties have also agreed that, in alternating years, starting with the mother in 2010, [X] will spend the period from when school finishes in December until Christmas Night with each of his parents and the balance of the long holiday is to be divided between them on a week about basis.
Finally I will take the parties up on their willingness to do a post separation parenting course. I hope the course will help each of them to communicate better and respect the other as one of [X]’s parents.
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 (200) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 14 May 2010
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