Lambman and Lambman (No.2)
[2011] FMCAfam 496
•25 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LAMBMAN & LAMBMAN (No.2) | [2011] FMCAfam 496 |
| FAMILY LAW – Parenting – dying parent – problematic role of positive law – wishes of children – ‘best interests’ considerations – use of research and materials from disciplines other than law (regarding bereavement) – litigation guardian for dying parent – virtues required of ‘surviving parent’ to be role model for children. |
| Family Law Act 1975, ss.60CA, 60B(1), 60CC(3)(c) Federal Magistrates Court Rules 2001, Division 11.2 |
| L v Human Rights & Equal Opportunity Commission (2007) 233 ALR 432 Aristotle, Nicomachean Ethics A. Kellehear, “Grief and loss: past, present and future,” (19 August 2002) 177 Medical Journal of Australia 176 B. Raphael, “Grieving the death of a child,” (2006) 332 British Medical Journal 620 |
| Applicant: | MS LAMBMAN |
| Respondent: | MR LAMBMAN |
| Intervenor: | MS O |
| File Number: | CAC 2045 of 2007 |
| Judgment of: | Neville FM |
| Hearing date: | 24 February 2011 |
| Date of Last Submission: | 24 February 2011 |
| Delivered at: | Canberra |
| Delivered on: | 25 February 2011 |
REPRESENTATION
| Solicitor/Advocate for the Applicant: | Ms L Strong |
| Solicitors for the Applicant: | Strong Law Pty Ltd, Canberra |
| Solicitors for the Respondent: | In person |
| Solicitors for the Intervenor: | In person |
| Solicitor for the Independent Children’s Lawyer | Ms J Lloyd, of Jeanine Lloyd & Associates, Canberra |
ORDERS
The Father do all acts and things necessary to facilitate the 2 children [X] born [in] 1999 and [Y] born [in] 2000 with the maternal aunt Ms O as follows:
(i)For 4 hours on each Saturday from 11:00am to 3:00pm unless otherwise agreed. For 4 hours on each Sunday from 11:00am to 3:00pm unless otherwise agreed until the death or loss of consciousness of the Mother, whichever is the earlier.
(ii)For such other or alternate times as may be agreed by the Father and Ms O.
(iii)Changeover shall occur at The [C] Hospital or Hospice in which the Mother is being cared for unless otherwise agreed.
(iv)The Father shall do all things necessary to facilitate the children’s timely attendance at the Mother’s funeral and the Father shall do all things necessary to ensure that the children attend any memorial service or wake as organised by the Mother’s family members.
The Father and Ms O do all acts and things necessary to attend a Family Dispute Resolution Conference to discuss ongoing time the children are to spend with Ms O after the Mother’s death in light of the Father’s proposal to move to Tasmania.
The contravention application filed by the Mother be stood over to a date to be advised.
IT IS NOTED that publication of this judgment under the pseudonym Lambman & Lambman (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 2045 of 2007
| MS LAMBMAN |
Applicant
And
| MR LAMBMAN |
Respondent
MS O
Intervenor
REASONS FOR JUDGMENT
Introduction
The following reasons were delivered orally on 25 February 2011.
I indicated at the time that they would be revised for publication in the hope that they might be of benefit to the parties. These are those revised reasons.
The proceedings between these parties have been on foot in one form or another for a number of years. They concern two young boys, [X] and [Y], who are aged respectively 11 and 10. The proceedings have been difficult for everyone, in part because Ms Lambman lives in Canberra and the boys live with their Father and his partner in [A] in the Snowy Mountain region of New South Wales, which is to say that the geography and the logistics have often made the time the boys spend with their Mother somewhat problematic. If the proceedings have been difficult in the past they are now genuinely traumatic and tragic.
The Applicant, Ms Lambman, is dying of metastatic colon cancer. There is medical evidence before the Court which confirms the gravity of her diagnosis and prognosis. It is estimated that she has perhaps four weeks to live, and from even more recent indications, perhaps significantly less. Ms Lambman’s sister, the boys’ maternal aunt, has been appointed her litigation guardian.[1] She has also sought to be joined as a party. Accepting that the roles and responsibilities of these two entities or offices, if they may be so called, are distinct, I have acceded to this application.
[1] See Division 11.2 of the Federal Magistrates Court Rules2001. See also the helpful discussion of the appointment of litigation guardians by the Full Court of the Federal Court (Black CJ, Moore & Finkelstein JJ) in L v Human Rights & Equal Opportunity Commission (2007) 233 ALR 432 at pp.438-439 [23] – [26].
Each of the boys has written two letters to me. The independent children’s lawyer has formally tendered them. The boys clearly express, and understandably so, their distress at their Mother’s condition and the fact that she is dying. In such circumstances they state that they do not wish to see her and certainly do not wish to be forced to do so. Mr Lambman says, on the other hand, that he is more than willing to bring the boys to Canberra to see their Mother, but on the other hand he also resists what he sees as Ms Lambman’s family, and the Court, forcing him to do what he does not consider to be in the boys’ best interests.[2] The Court fortunately has the services of an experienced independent children’s lawyer who has spoken often with the boys.
[2] Generally, see s.60CA of the Family Law Act1975 (“the Act”).
I need not and will not make any findings or even observations about what the recent email correspondence between Mr Lambman and
Ms Lambman’s solicitors clearly discloses. In the course of yesterday’s hearing I have already expressed my concern regarding Mr Lambman’s persistent denial, since November 2010, of Ms Lambman’s grave state of health.
Submissions & Other Considerations
In my words the independent children’s lawyer submitted that because of the utterly enmeshed relationship between the boys and their Father it would be pointless and indeed completely counter-productive to force the boys either to go with their aunt, or to see their Mother, without the support and encouragement of their Father. Respectfully, and in some ways unfortunately, I agree, but now is not the time to seek to address that enmeshed relationship and the intransigence, not infrequently displayed by both parties, and not insignificantly so by
Mr Lambman. Rather, now is the time for Mr Lambman to display and provide almost heroic virtue and example to his sons.
Mr Lambman has advised the Court that petrol, which hitherto has been an issue for him in the travel between [A] and Canberra, has been offered by a friend to enable him to drive to Canberra. Mr Lambman has also advised that he has accommodation near to the hospital where Ms Lambman now resides. I note, too, in passing that Ms Lambman remains in hospital undergoing chemotherapy, and various palliative care treatment. Even more recently, the Court has been advised that she is shortly to move to the local hospice.
In these difficult circumstances for everyone, Mr Lambman now has a genuine, indeed almost wonderful, opportunity to provide a strong example to his sons of what it means to be a parent and to be a compassionate human being. It is unlikely that, when drafted, s.60CC(3)(c) and other sections of Part VII of the Act, were intended to comprehend compassion and similar virtues that are more frequently encountered in other areas of discourse.[3] It almost certainly does not exclude them, but the detail and consideration of such human endeavour is not the usual material addressed by the Court, and in the dramatic circumstances of a case of this kind.
[3] In another judgment, I have discussed the place of virtue at a little more length (and with some detailed references) in parenting matters. See Monds & Mullan [2009] FMCAfam 58.
There is no doubt that Ms Lambman’s circumstances – physical, psychological, emotional and more – are extremely distressing both for her and for her family. Understandably, the boys have expressed their distress at their Mother’s plight and circumstances. Obviously, part and parcel of the distress relating to events in recent and not so recent history between the parties, which I need not now recount. They all inform the background to these proceedings.
However, given that their Mother is on her deathbed, by facilitating the boys’ visits with their Mother in her last weeks, Mr Lambman will be displaying what it means to put someone else’s interests above your own. He would be showing the boys how to express compassion and tenderness. He would be showing the boys what it means to forgive, even long-standing grievances. He would be showing what it means to have courage in the face of extremely difficult, indeed, grave circumstances. He would be showing them how to begin to build bridges rather than to blow them up. He would be showing them how to be flexible rather than unyielding.
He would be showing his sons how to let the past stay in the past and not let it control the present and the future. He would be able to show the boys what it means to lead by example, by doing what is right and good rather than being mean and selfish; what it means to be, in this day and age, in a sense “noble”, and recognise that life involves sacrifice; what it means to be generous, especially in the face of adversity, and to offer something of an olive branch in the midst of trial and turmoil.
This is, indeed, it seems to me, a grand opportunity for Mr Lambman.
I do not say that it is an easy opportunity. It is for him to choose to use it for good or for evil, for the good of the boys or to confirm opposition in desperate circumstances. This can be a genuinely therapeutic time for all. Who will hold on to the grudges and hurts of the past or let them go? In this case there will be no second chance. Ms Lambman will be dead quite soon.
The law is a terribly blunt instrument. Its exercise can add to problems even when the intention is to assist all, and to administer justice. Because of the myriad delicacies involved in these proceedings at this time I am loathe to make too many orders. As with all matters, it would be infinitely better if agreement could be reached between the parties. However, the current circumstances make that virtually unlikely hence stressing the onus that falls to Mr Lambman.
For these same reasons, as helpful as legislative pathways can and are intended to be in many cases, in a case of this kind, in my respectful view, they simply constitute more or less tripping stones, if not downright stumbling blocks. Legislative pathways do not admit of much in the way of malleability or flexibility.[4]
[4] On the limitations of ‘positive law’ there is abundant literature. A recent relevant study is M. Kramer, Where Law and Morality Meet (Oxford: Oxford University Press, 2004).
Formally, the orders sought by the parties should be taken as being incorporated into these reasons. So too, respectfully for what they are worth in the current circumstances, are the jurisprudential parameters set out by Brown J in Mazorski v Albright, to be taken to be incorporated into these reasons. In that case, her Honour summarily described ‘the twin pillars’ principle in Part VII of the Act, and also what is comprehended by a ‘meaningful relationship’ between parent and child.[5]
[5] See Mazorski v Albright (2008) 37 Fam LR 518 at pp.519 ([3] – [6]) and 525-527 ([20] – [26]).
From another, and immediately more relevant, field of discourse, I note the following.
There is abundant literature that confirms the impact of grief on the human psyche and the direct and usually adverse impact it has. In the circumstance where grief (particularly associated with death or dying is concerned) is encountered, it is critical to ensure that there is the provision of appropriate information, that it be conveyed sensitively, and with support where necessary. Often-times, some therapeutic intervention is not only appropriate but also essential. This is likely to be the case where children are involved.
For example, there is significant literature that deals with the recognition and treatment of “grief” related to death and dying. I simply note the following articles and texts as nothing more than suggestions.[6]
[6] See, for example, A. Kellehear, “Grief and loss: past, present and future,” (19 August 2002) 177 Medical Journal of Australia 176; I. Maddocks, “Grief and bereavement,” (15 September 2003) 179 Medical Journal of Australia S6; B. Raphael, “Grieving the death of a child,” (2006) 332 British Medical Journal 620.
In addition to the articles cited, a world authority on “bereavement”,
Dr Beverley Raphael, published a detailed work some years ago, The Anatomy of Bereavement.[7] Chapter Three of that book is entitled “The Bereaved Child.” Within that Chapter, Dr Raphael deals with children of different ages and some of the reactions likely to be encountered and exhibited by children who have faced, or who are facing, bereavement. One of the age groups that she deals with is the child from 8 to 12 years, which obviously is the age range of the boys in this case.
[7] B. Raphael, The Anatomy of Bereavement, (New York: Basic Books, 1983).
Among other things, Dr Raphael notes that a child in this age group is more likely than not to have an understanding of death “very much equivalent to that of an adult.” She notes, however, some limitations on this, but continues, observing that a further, prominent factor is that a child of this age begins to realise “the possibility of their own death and fearful experience as a consequence.”[8] And with understandable directness and force, she notes that “the death of a parent is very threatening to this child”, meaning obviously a child in this age bracket.[9] In the face of death, a child of this age (and obviously not just children), experience senses of helplessness and vulnerability.
[8] Ibid, p.106.
[9] Ibid., p.107.
Clearly, both intuitively and according to relevant research (such as that collected in the studies to which I have referred), the range of reactions and emotions experienced in witnessing the death of a parent is never closed.
In the light of the literature to which I have referred, it might be said, at least on one level, that in addition to the obvious difficulties that the boys experience or are experiencing now in relation to the visitation, and spending time with, their Mother, it is something of an anticipatory grief that the boys are seeking to comes to grip with. They know that their Mother is dying. They know that she will not be with them for very much longer. Part of the compound grief with which they are having to deal comes from (a) the loss that they are currently experiencing, (b) the loss in a sense that they have already experienced in being separated from her from time to time, and (c) the difficulties in the relationship between their parents. All these “immediate losses” must now be seen and appreciated in the supremely grave and fragile context of the imminent loss of their Mother when she dies.
In addition to the literature to which I have referred, one would hope that common sense and basic understanding that the greatest delicacy is required in dealing with these young boys, and at the same time with the families involved. Indeed it would not be going too far to say, it seems to me, that in keeping with studies throughout the ages in philosophy, social science, literature, medicine, psychology and the like, one could not help but be moved and genuinely guided more by compassion (which is not usually in the lexicon of family law legislation or jurisprudence more generally) than by the blunt instrument of the law in the current circumstances. Respectfully, Part VII and the ‘legislative pathway’ have little work to do here.
Now is the time for sympathy and empathy, rather than the rubber truncheon of the law, and the insistence on rights. In this regard I am pleased and grateful to see in the most recent email correspondence from Mr Lambman that he has had what he describes as helpful and productive discussions with Ms Lambman’s sister and other members of the family. That augers well. Indeed, one hopes that it will continue to bear fruit
(a) for the duration of the time that Ms Lambman remains alive, (b) that by discussion and negotiation, matters which Mr Lambman has promoted in his email material, it will be possible for the boys to spend time with their Mother, even if it is only for the shortest, briefest of periods and also in surroundings which are as relaxed as they possibly can be, whether it is in a garden at the hospital or some other more pleasant surroundings rather than in a situation of highly medicalised care.All of this, of course, is subject to how Ms Lambman, in her remaining time on earth, unfolds.
For these brief reasons, I propose making orders as proposed by the independent children’s lawyer, save that as I have already indicated that the contravention application that was filed by Ms Lambman would be stood over to a date to be advised.
Finally, I simply commend the parties and those advising them that obviously as they have endeavoured to do with varying degrees of success, that matters be resolved by discussion rather than by ultimatum even if it means that the boys are only able to spend only the briefest possible times with their Mother. Little time is better than no time. Formally I make those orders. In my view, in the current circumstances, they are in the boys’ best interests.
According to traditions from classical times, but which have endured down through the centuries, the greatest fear faced by human beings is death. It is the ultimate ‘test of character.’ Similarly, for those accompanying the dying person, it too is a time of great challenge. This is why, according to the classical tradition, the virtue of fortitude or courage is the pre-eminent virtue required in such circumstances. Among many places where such references are found, it is sufficient to note the following brief excerpt from Pericles’ famous Funeral Oration for those who had fallen in war, and his encouragement for those left behind who face perilous and grave difficulties. He said:[10]
Others are brave out of ignorance; and, when they stop to think, they begin to fear. But the man who can most truly be accounted brave is he who best knows the meaning of what is sweet in life and of what is terrible, and then goes out undeterred to meet what is to come.
[10] Thucydides, The Peloponnesian War, Bk. Two, 40. Generally, see J. Pieper, The Four Cardinal Virtues, (Notre Dame: University of Notre Dame Press, 1966); M. Nussbaum, The fragility of goodness: luck and ethics in Greek tragedy and philosophy, (Cambridge: Cambridge University Press, 1986).
Equally simply put, Aristotle said: “It is for facing what is painful … that men [and women] are called brave.”[11] That bravery is called for now to be shown by Mr Lambman.
[11] See Aristotle, Nicomachean Ethics Bk.III.9.
Postscript
Since the delivery of this judgment, Ms Lambman has died.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 20 May 2011
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