Potter and Ross and Ors

[2008] FamCA 894

FAMILY COURT OF AUSTRALIA

POTTER & ROSS AND ORS [2008] FamCA 894

FAMILY LAW – CHILDREN – With whom children live – complex inter-relationships of parties – orders made by consent – commitment by parties to counselling and treatment – ongoing monitoring by Independent Children’s Lawyer

Family Law Act 1975 (Cth) Division 12A
Family Law Rules 2004 (Cth) r 10.15A

In the marriage of Jurss and Jurss (1976) FLC 90-041

APPLICANT FATHER: Mr Potter

1^st RESPONDENT MOTHER: Ms Ross

2^nd RESPONDENT MOTHER: Ms Wilson

RESPONDENT FATHER: Mr Olsen

RESPONDENT GRANDPARENTS: Mr and Mrs Olsen (Snr)

FILE NUMBER: BRC 48 of 2007

DATE DELIVERED: 3 September 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 3 September 2008

REPRESENTATION

APPLICANT FATHER: Mr Potter In person

COUNSEL FOR THE FIRST 

RESPONDENT:

Ms Carmody

SOLICITOR FOR THE FIRST RESPONDENT: Carne Reidy Herd

SOLICITOR FOR THE SECOND RESPONDENT: Mr Rennick, Greenhalgh Pickard Solicitors

RESPONDENT FATHER: Mr Olsen in person

RESPONDENT GRANDPARENTS: Mr and Mrs Olsen (Snr) in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Selfridge

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:  Legal Aid Queensland

Orders

IT IS ORDERED BY CONSENT IN RESPECT OF THE CHILD N BORN … JUNE 2000 (“N”) THAT:

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS ORDERED THAT:

1. All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

2. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

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

IT IS DIRECTED THAT:

1. The Minutes of Consent remain upon the Court file.

2. A transcript of the relevant portions of the hearing of this matter on 28 and 29 August 2008 and the evidence of Mr Potter given on 28 August 2008 shall be forwarded to the parties and to those people named in the Minutes of Consent.

IT IS NOTED THAT:

(a)By reference to the factors indicated by Justice Murphy during the earlier hearing of this matter on 28 and 29 August 2008, the court is satisfied that any allegations of abuse have, within the meaning of Rule 10.15A, been dealt with by the Minutes of Consent signed by the parties and the Independent Children's Lawyer.

MINUTES OF CONSENT

BY CONSENT OF THE PARTIES IT IS HEREBY ORDERED:

1. That the child N born … June 2000 (“N”) live with the Mother.

2. Until unsupervised time between the Father and N commence in accordance with Order 3(e) below then the Mother will have sole parental responsibility of N for major long-term issues to include his education, religious and cultural upbringing, his health and living arrangements.

3. N shall spend time with his Father at all times as may be agreed between the parties but failing agreement as follows:

   (a)After a twelve (12) month period in which N can have ongoing therapeutic counselling with Dr L, Psychologist, supervised time will commence for a period of 2 hours each alternate week at the Sunshine Coast Contact Centre for a period of two months, with the Father taking N “offsite” should he wish to do so, provided this is supervised.

   (b)After two months, such time to graduate to the same as that contained at Order 3(a) above but for 2 hours each week supervised for a further period of two months;

   (c)Immediately prior to the supervised time commencing in accordance with Order 3(a) above but at a time to be determined by Dr L, the Father is to attend upon Dr L in order to be given some assistance in his reintroduction with N to make the process easier, in particular for N. Sessions to include N at the discretion of Dr L.

   (d)Immediately prior to the time graduating to unsupervised time but at a time to be determined by Dr L, the Father is to attend upon Dr L in order to be given some assistance in ensuring that the process be made easier, in particular for N. Sessions to include N at the discretion of Dr L.

   (e)Thereafter, N spend time with his Father for a period of three months,  unsupervised, for two hours every Sunday from 2pm to 4pm;

   (f)Thereafter, N spend time with his Father for a period of one month,  unsupervised, for four hours every Sunday from 12pm to 4pm;

   (g)Thereafter, N spend time with his Father for a period of two months,  unsupervised, for the day from 9am to 5pm each alternate Sunday;

   (h)Thereafter, N spend time with his Father for a period of six months,  unsupervised each alternate weekend, from Saturday 5pm to Sunday 5pm;

   (i)Thereafter, N spend time with his Father from after school Friday to before school Monday each alternate weekend.  

   (j)Commencing during the Christmas holidays 2010 N is to spend time one week with his Father and thereafter half of all Queensland Gazetted school holidays commencing Easter 2011 with the Father to have the first half in 2011 and each odd numbered year thereafter and the Mother to have the first half in 2012 and each even numbered year thereafter;

   (k)All changeovers are to occur at school where applicable and otherwise at the Sunshine Coast Contact Centre or at McDonalds … if the Contact Centre is closed, in the event that the Mother or Father are not able to personally attend at the handover then the parties agree that a member of either parties’ immediate family can attend handover with the child.

4. Unsupervised time between N and his Father will occur in accordance with Order 3(e) above unless there is some risk or non-compliance issue identified by the Father’s treating psychiatrist/psychologist in accordance with Orders 5, 6 and 7 below. Such issue to be identified to the Independent Children’s Lawyer.

5. The Father is to forthwith initiate contact with Dr H, Psychiatrist, in order to undertake psychiatric/psychological intervention in accordance with Dr H’s recommendations, whether that be with Dr H or another psychiatrist/ psychologist as recommended by Dr H.  Such intervention to be undertaken for as often and for as long as determined by the interventionist;  this is to include compliance with treatment, as recommended.

6. The Father hereby authorises his treating psychiatrist/psychologist to discuss the following issues with the Independent Children’s Lawyer:

   (a)attendance;

   (b)compliance;

   (c)prognosis;

   (d)treatment; and

   (e)any issue of risk (in particular, any issue relevant to the best interests of N).

7. The Independent Children’s Lawyer is at liberty to discuss the issues identified at Orders 5 & 6 above with any of the following:

   (a)Ms M, Social Worker and Family Report Writer;

   (b)Dr L, Psychologist; and

   (c)Dr H, Psychiatrist.

8. The Independent Children’s Lawyer is hereby authorised to release the following reports to the Father’s treating psychiatrist/psychologist as defined at Order 5 above;

   (a)2 x Affidavits Ms M annexing Family Reports filed 6/11/07 and 7/5/08;

   (b)2 x Affidavits Dr H annexing Psychiatric Reports filed 13/11/07 and 27/8/08;

   (c)Affidavit Dr L annexing Psychological Report relating to N filed 27/8/08;

   (d)All final Orders made in relation to the three (3) children of these proceedings.

   (e)The transcripts of proceedings directed to be prepared in these orders.

9. Dr L, at a time she considers suitable, will be responsible for discussing the following with N:

   (a)Issues surrounding time he is to spend with his Father; and

   (b)The prior cessation of time that he formerly spent with his Father.

10. The Mother will make N available to spend time with his half siblings, Y and J, on their respective birthdays.

Specific Issues:

1. That the parties use a communication book to be exchanged at the Sunshine Coast Contact Centre in which information is to be recorded by each parent relevant to N’s care and welfare.

2. That the Father and Mother each keep the other informed of any major illness or accident suffered by N when in his or her care and advise the other as soon as practicable of each treating doctor or professional attended by N and authorise him or her to speak with the other parent.

3. Both the Mother and Father shall keep the other informed of the name of each of N’s treating doctors, teachers, therapist, counsellors or other persons consulted by N.

4. That this Order is an authority to N’s school that the Father have the opportunity to access copies of all reports, school photographs, newsletters after payment by him of any necessary fee.

5. This Order is an authority to N’s treating doctors and allied health professionals to the effect that the Father be able to contact same and be advised of N’s treatment and/or progress and obtain reports after payment by him of any necessary fee.

6. That neither party denigrate the other or their family to or within the hearing of N, and ensure that no other person denigrates the other parent or their family, to or within the hearing of N.

7. That both parties keep the other informed of their residential address and contact details, and advise the other in writing within forty-eight (48) hours of any change to those details.

8. The Father will vacate the current home at K on expiration of the current lease on 3^rd October 2008 and not seek residence within the immediate area of K in the future.

9. That neither party remove N from the jurisdiction of the State of Queensland, without first providing the other parent with at least fourteen (14) days’ notice in writing of the dates of the proposed travel, contact details for the duration of the trip, and an itinerary of the trip.

10. That the Father undertake to complete a Parenting Orders Program through either Relationships Australia or a Family Relationships Centre OPS program within six months (6) from the date of this Order, to assist him to learn to communicate with the Mother effectively regarding parenting issues for N, and provide the Independent Children’s Lawyer with written confirmation that the program has been successfully completed.

11. That neither party shall physically discipline N nor let any other person physically discipline N.

12. The Independent Children’s Lawyer remain in the matter for a period of eighteen (18) months.

13. Each party be at liberty to apply to the court upon the giving of seven (7) days notice.

IT IS NOTED THAT

(a)These orders do not contain provision for equal shared parental responsibility. The presumption of equal shared parental responsibility, by reference to the complex circumstances evident in the proceedings before me, has been rebutted by reason of the best interests of N.

(b)It is respectfully requested that the Director of Legal Aid Queensland give consideration to providing requisite legal aid so as to allow the Independent Children's Lawyer to carry out the functions contemplated by these orders during the period contemplated by these orders, including any aid that might be required for any process to be conducted by Ms M, Dr H, or otherwise, as considered appropriate, consistent with the terms and spirit of these orders.

(c)It is noted that the provisions of the Minutes of Consent contained at paragraphs 6 and 7 in particular, may impinge upon any future therapeutic relationship between the father and Dr H or other nominated psychiatrist or psychologist. It is the intention of those consent orders to interfere with the therapeutic relationship to the minimum extent necessary so as to provide the requisite information to the Independent Children's Lawyer directly relevant to the best interests of N. It is not the intention of the orders have that treating psychiatrist or psychologist reveal matter private to the father that do not have that impact or potential impact with respect to the care and best interests of N.

IT IS NOTED that publication of this judgment under the pseudonym Potter & Ross and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC48 of 2007

MR POTTER

Applicant Father

And

MS ROSS

First Respondent Mother

And

MS WILSON

Second Respondent Mother

And

MR OLSON

Respondent Father

And

MR AND MRS OLSON (SNR)

Respondent Grandparents

Ex Tempore

REASONS FOR JUDGMENT

1. At the commencement of this hearing a complex set of relationships found two mothers, two fathers and two respondent grandparents applying for orders in consolidated proceedings in respect of three children, N born in June 2000 now aged 8, J born in January 2002 now aged 6 and Y born in June 2005, now aged 3.

2. It is necessary to set out the inter-relationships briefly. 

3. The respondent mother Ms Ross is the mother of Y and J.  The applicant father Mr Potter is the father of Y.  The respondent father Mr Olsen is the father of J. 

4. At the outset of the proceedings Ms Ross said that she lived with neither father.  That picture became significantly more cloudy during the course of the proceedings and I shall shortly make further reference to that. 

5. During the course of the proceedings, to their great credit, the parties engaged in discussions together with their legal representatives with a view to bringing about the optimal arrangement for these children caught up in the complex inter-relationships that I have just described. Those inter-relationships are compounded by what, on any view of the evidence, have been conflictual relationships, varying in their targets and intensity, to the detriment of the children.

6. The parties have attempted, through the negotiations just referred to, to bring about an agreed set of arrangements with respect to the children which, as Ms M, the family consultant who has prepared two reports in this matter and Dr L, a treating therapist in respect of N who also gave oral evidence, have clearly indicated is best for these children, namely an agreed relationship between their significant care-givers.

7. To their credit, the parties were able to agree and I made orders by consent in respect of arrangements for J.  In very broad terms, those orders provided for J to live the majority of the time with Mr Olsen and as a result to spend time by arrangement between Mr Olsen and his parents, the respondent grandparents in the proceedings.  Those consent arrangements also provided for Ms Ross to spend substantial time with J.

8. After those orders were made Mr and Mrs Olsen Snr and the father, Mr Olsen were, with the consent of all other parties including the Independent Children's Lawyer, each excused from further attendance in the proceedings.

9. Thereafter, during the course of Mr Potter’s evidence he indicated – contrary to the position evident in some of the material including expert reports – that he and Ms Ross had been in a relationship for a period of about seven months or so leading up to this hearing.

10. That evidence he indicated, as a result, that he had been playing a role in Y’s day-to-day care giving and, at least in some respects, had acted contrary to an undertaking given by he and Ms Ross to the Court on an earlier occasion.

11. Mr Potter indicated that the relationship so described had subsisted until 8.30 the night prior to the commencement of this hearing. 

12. That information came as news to the other parties involved in the hearing, came as news to the Court and it came as news to each of Ms M and Dr H, a reporting consultant psychiatrist, although I think it is fair to say that each of Ms M and Dr H had flagged the uncertainty of the nature of the relationship between Mr Potter and Ms Ross as a significant issue in the preparation of their respective reports.

13. Ms Ross was given the opportunity through her counsel of putting to the father that the evidence given by him was false.  She declined that opportunity. 

14. Subsequent to that evidence, further discussions took place between the parties and, on the following day when Mr Potter again resumed evidence in the witness box, an additional significant change came over the case.

15. Mr Potter indicated that, as a result of reading and considering the reports by Ms M and Dr H and a report from Dr L which was provided to him and to the Court on the first day of the hearing, and as a result of having had various discussions with the Independent Children's Lawyer and her Counsel, Mr Selfridge, that he had what was described subsequently in the proceedings as either an “epiphany” or a "conversion on the road to Damascus".

16. In simple terms, Mr Potter swore that he had come to realise that, as a result of a number of tragic issues in his life, there were a number of matters that he needed to address in himself.  Principal among those issues was, speaking in broad terms, anger management and the capacity to control his emotions. 

17. In circumstances where each of the mothers, Ms Wilson and Ms Ross have flagged in their evidence, and to report writers, issues relating to domestic violence and what they perceive to be aggressive and intimidatory behaviour on the part of Mr Potter, the significance of the evidence given by Mr Potter can readily be appreciated. 

18. It is fair to say that each of the two mothers expressed some scepticism about Mr Potter’s sincerity and/or capacity. 

19. At the time that Mr Potter gave that evidence I had had the opportunity to listen to him in the witness box for a considerable period of time.  My tentative view was that he was sincere in his expressed intention but, as I said during the course of the hearing, sincerity is one thing, capacity – and in particular long-term capacity – is quite another.

20. Nevertheless, by agreeing to various components of the orders by consent made with the care-givers of J and N respectively, it is without doubt clear that Mr Potter was prepared to agree to a number of what can be seen to be significant restrictions and, as it were, intrusions with respect to the monitoring of his future sincerity and capacity.

21. During the hearing I flagged a number of matters including those which I have just mentioned and including a continued role for the Independent Children's Lawyer including liaising with Dr H, Ms M and any treating psychiatrist or psychologist with whom the father has obliged himself to consult and receive therapy, as being factors which spoke to any risk perceived by either of those mothers with respect to the father's future care of, and time with, either N or Y. 

22. Ultimately, orders by consent were made between Ms Wilson and Mr Potter with respect to N, consequent upon further discussions having taken place between the parties and consequent upon, at the request of the Independent Children's Lawyer, both Ms M and Dr L giving oral evidence with the opportunity for the parties to ask questions of each of those witnesses.

23. Consistent with the provisions of r10.15A of the Rules Mr Selfridge outlined those matters which the independent children's lawyer had taken into account in adding their, as it were, imprimatur to the consent orders, and in particular addressed those matters contained within those orders which in the independent children's lawyer's view addressed any concerns about risk and/or allegations of aggression, intimidation or family violence.

24. Subsequent to those orders being made further discussion took place between Ms Ross and Mr Potter.  Ultimately, they, too, resulted in substantial agreement between those two parties which, again, they are to be congratulated for. 

1. In broad terms those orders provide that Y would spend time with his father, as might be agreed, and, failing agreement, from after day care on a Friday to before day care on a Monday each alternate week and in the other week, overnight on Thursday from after day care until the commencement of day care on  a Friday.  Specific school holiday time was provided for, together with time on birthdays and other special occasions.

2. The minutes of consent provided that, as from Easter 2009 (therefore from, in effect, the 2009 school year) Mr Potter would enjoy time with Y for one half of all of the Queensland gazetted school holidays. 

3. Accordingly the position, as agreed between the parties, again with the imprimatur of the Independent Children's Lawyer, was that up until the commencement of the 2009 academic year Mr Potter would spend three nights in one week and one night in the other week with Y and half school holidays from the Easter school holidays forward.

4. There were a number of other orders made referring to the issues which I have earlier flagged in these Reasons including the father and the mother, committing themselves to a process of psychiatric or psychological care and provision for the Independent Children's Lawyer to take what can only be described as a significant monitoring role in Y’s life whilst that process takes place.

5. The orders also provide for each of the reporting and/or treating experts in this case, namely Ms M, Dr H and Dr L, to receive information so as to keep them appraised of the current situation with respect to Y as the psychological and/or psychiatric treatment or therapy of each of the parties progresses.

6. There are also, by agreement, a number of specific issues relating to matters that the parties need to attend to in order to, as it were, keep the lines of communication open and, hopefully, functional. 

7. The parties were, though, unable to agree on what should occur after that time.

8. Mr Potter contends that, from that time forward, there should be a shared care arrangement by which he meant Y spending alternating weeks with him and with Ms Ross. 

9. Mr Potter puts up an alternative proposal: an additional night so that he would spend time in the alternate week from after day care Wednesday until the commencement of day care on Friday in that week.

10. Each of those proposals are opposed by Ms Ross.  The Independent Children's Lawyer, through her counsel Mr Selfridge, did not support orders for shared care as proposed by Mr Potter but does support his alternative proposal. 

11. In respect of the application for shared care, Mr Selfridge submits firstly that the position of each of the parties but particularly the mother, is unknown. 

12. Consistent with the provisions of Division 12A of the Act, many legal formalities were done away with and I availed myself of the opportunity to hear each of the parties tell me what they considered to be right. As I said to one of the witnesses, I sought to have them explain to me what their position was from their hearts, as opposed to some notion of what they thought they should say.

13. Ms Ross confirmed that her current plan was to move back and live with her mother. 

14. There is no doubt on the evidence before me that the relationship between Ms Ross and Mr Potter has been conflictual and as described by Ms M "cyclical", that is to say, it has had good passages and it has had very poor passages. The evidence also suggests that this is true of the relationship between Ms Ross and her mother. 

15. Ms M referred to this issue at some length in the evidence given by her in the witness box.  The uncertainty of that arrangement which, can I emphasise, arises as evidence before me only in circumstances where on the very first day of hearing the father informed the Court and indeed other relevant parties, that what he contends is the relationship between he and Ms Ross had broken down, with her leaving the home where she was living, only at 8.30 the night before.

16. In circumstances where each of Dr H, Ms M and Dr L have emphasised, interestingly in almost the same words, the importance for all children and specifically, in the context of these Reasons, Y, for stability, security and predictability in their lives, these circumstances are of course troubling.

17. The Independent Children's Lawyer submits, in my respectful view, correctly that against that background it is still not possible to predict with any real certainty what the living arrangements are likely to be for Y in the near future.  There must be some truth in this by reason of the evidence before me as to the fluctuating nature of the relationship between Ms Ross and Mr Potter and between Ms Ross and her own mother.

18. However, as I said to Mr Potter during the course of the hearing, he asks the Court to be taken on faith that the change in his position is sincere and that he has the capacity to effect change by utilising expert psychiatric or psychological care.  He says that through that vehicle, he will do the necessary hard work – and it will be hard work – to effect a process of change.

19. Dr H makes it very clear that, if the father makes the necessary commitment to the hard work required to effect that process of change, then the more pessimistic scenario that he paints in his report is likely to change significantly. 

20. In much the same way, the mother also seeks to be taken on faith.  She says that she, too, needs to go through a process of change. That is, she needs to address, again, through the vehicle of expert psychological or psychiatric intervention, issues in her life which will hopefully make her, like the father, a more effective and co-operative parent with respect to J. 

21. She, too, asks the Court to accept that she has the requisite sincerity and commitment to such a process and she, like the father, commits via Court orders to that process. 

22. Like the father, she too agrees to what might be seen as significant interference with her individual liberties and a significant process of overview by the Independent Children's Lawyer during that process.

23. That is important because in support of the submission that there should be shared cared, Mr Potter said quite openly that his proposal is "more of a preventative measure".  He was asked to explain what he meant by that. He refers to what he (rightly or wrongly) regards as instability in Ms Ross. He says that, if there was to be a set of events that would render Ms Ross’s care for Y less than optimal, for example, another breakdown in the relationship between she and her mother, then he would, as it were, be there and nothing would need to occur because he would simply take over the care of Y.

24. There is, of course, a legal issue that indicates that Mr Potter is wrong about that; Orders will be in place governing the care arrangements.  Leaving aside the obvious practical exigencies of emergencies, he would not, in fact, take over the care of Y but would be subject to a shared care arrangement with respect to Y.  If he sought to change that position it would be necessary for him to make an application just as it would be necessary for Ms Ross to make an application if she alleges that there are significant changes relevant to Y’s best interests emanating from the father and his circumstances. (Although I sincerely hope neither party seeks, or needs, same.)

25. Although I understand what the father is saying in that respect, and although the evidence clearly indicates to instability in Y’s life, it seems to me that the “preventative measure” referred to is not a good reason for making an order.  Indeed the law is to the contrary. 

26. The law, both by reference to the statutory provisions which governs the making of all parenting orders, including more limited decisions such as this one, and the pre-existing law emanating from, for example, decisions like Jurss clearly indicate that the Court’s task is to undertake a positive enquiry directed to the best interests of the child by reference to the circumstances disclosed in evidence before the Court.

27. A positive enquiry into Y’s best interests, a child who is still only three, indicates, particularly by reference to the expert evidence before me reveals that what Y needs more than anything else in his life is stability, security and predictability. 

28. There are reasons to be pessimistic that this will occur for him by reference to aspects of the history of the co-parenting this far in his life.  There are also reasons to be optimistic.  The optimism is based upon both parties being prepared to take the solemn step of committing via Court orders to a difficult process that will be conducted under scrutiny.

29. If that process takes place, a number of considerations become directly relevant to the issue of whether the parties should share, on a week-about basis, Y’s care.

30. It is submitted by each of Mr Selfridge and Ms Carmody, who appears as counsel for the mother, that the week-about arrangement would need a very high level of cooperation and agreement between the parties.  I agree. 

31. Ms Carmody submits in addition that the quality of the cooperation and agreement between the parties would need to be of a high standard to take account of all of the day-to-day exigencies relevant to the care, upbringing and nurturing of a very tiny child.  Again, I agree.

32. Both counsel submit that all of the evidence points to, at this stage, neither of the parties being able to bring about that high level of cooperation and agreement.  Again, I agree with those submissions.

33. Next, it seems to me that, not only does there need to be a high level of co-operation and agreement between the parties, but, in order for the parties to share time week-about in Y’s best interests they would need have similar, parenting styles or philosophies.

34. Here, there is in my view a high likelihood that there would be different rules, philosophies, styles and arrangements being put in place. 

35. It also seems to me that if an arrangement like that is to be put into place, each party has the right to expect that the other would communicate both openly and implicitly to a young child that the other parent was respected and that each party accorded to the other a real and meaningful role in the life of Y.  Again, I could not be confident on the state of the evidence that, at this stage, that is the case here. 

36. I should flag that on the evidence before me it would be hoped that the process that each of the mother and father have agreed to undertake would work on that issue as a significant priority.

37. Next, it is still not possible to particularise aspects of Y’s day-to-day arrangements from each parent.  It seems to me, however, that that does not sway the decision one way or another.  There is insufficient evidence before me from which I would conclude that either of the parties, in terms of their day-to-day arrangements, are likely to be so irresponsible in respect of Y’s care so as to make that a specific consideration. 

38. It is submitted that there should be a continuity in care that is predictable for Y if a shared care arrangement is to work in an effective way for him.  I agree with that also.  Ms Carmody submits that Dr H says that he would be concerned about the conflict between these parties.  Such a concern is, it seems to me, also inherent in the evidence of both Ms M and Dr L. 

39. I share this concern and I regard it as axiomatic that orders which attempt, as much as possible, to reduce that conflict are in Y’s best interests.  I think there is a greater potential for conflict to occur, as Ms Carmody submits, in the mooted shared care arrangement by reason of the necessity to discuss, agree and cooperate on a large range of matters, activities and the like with respect to a child as young as Y.

40. Any arrangement in this case proceeds against a background of a number of “if's” that I flagged during Ms M’s evidence in the witness box. 

41. It is simply not possible to know what will happen to the relationship between Ms Ross and her mother.  I do not know what the future status of the relationship between Mr Potter and Ms Ross is likely to be.  I do not know the degree of capacity for, and commitment to, the respective therapeutic processes contemplated for each of the parties.  I do not know how effective that treatment, even if committed to, is likely to be.

42. It seems to me that this uncertainty attends all and any orders with respect to Y but the uncertainty exacerbates the concerns that I have with respect to the proposed shared care arrangement.

43. My conclusion is reached cognizant of the statutory obligations imposed upon me, including the Objects and Principles and the statutory Considerations, including the primary considerations of the need for the benefit of a meaningful relationship and abuse or family violence with respect to the child.

44. When balanced, the relevant considerations consistent with the Objects and Principles point to a conclusion that it is in Y’s best interests for there not to be a week-about arrangement, as proposed by Mr Potter.

45. In respect of the alternative arrangement proposed by him, the Independent Children's Lawyer submits that there really is no reason why such an arrangement ought not be put in place. 

46. On one level, all of the issues that I have flagged earlier in these Reasons point against such an arrangement. But, they point against any arrangement.  All of the uncertainties to which I have made reference flag as a real concern as to Y’s best interests, whether – any – arrangements are likely to work between the parties.

47. However it seems to me that, in the midst of those difficulties and complexities, the parties deserve very significant credit and congratulations for reaching agreement about the matters that they have.  That agreement clearly has involved each of them in an arduous and difficult process and each of them, as I have said, have agreed to a number of what might be seen as intrusive future conditions.

48. That being the case it seems to me that I ought pay particular regard to that fact in doing the best I can to discern the existing nature of the pre-existing inter‑relationship between Mr Potter and Ms Ross, including significantly as it seems to me, a role in the day-to-day care of Y by Mr Potter (albeit in circumstances which still remain unclear).

49. I also take account of the following matters: the evidence of Ms M that the positions of N and Y are quite different; the statutory edicts contained in the Objects and Principles in the Act; particularly, the primary consideration with respect to the benefit of a meaningful relationship between Y and his father.

50. It seems to me, then, the alternative proposal that would see Mr Potter spending two nights in the “off-week” is in Y’s best interests, and I will order accordingly.

51. As to the ultimate form of the Orders, I propose to issue orders containing, together with those matters such as the forwarding of transcripts and the like referred to earlier, an order saying order as per minutes of consent, and, in addition, to order that, as and from the conclusion of the Christmas school holiday period provided for in the minutes of consent the father spend time with Y from after day care or school on Friday to before day care or school on Monday in each alternate week and from after day care or school on Wednesday until before day care or school on Friday in the other week and each alternate week thereafter.

I certify that the preceding seventy five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:

Date:  27 October 2008