Mauldon and Mauldon
[2009] FMCAfam 1194
•15 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MAULDON & MAULDON | [2009] FMCAfam 1194 |
| FAMILY LAW – Parenting – application for shared care and shared parental responsibility – family violence – fragile & volatile parental relationship – best interests of the children. |
| Family Law Act 1975, (Cth), Part VII, ss.60B (1)(b), 60CC, 60CC (2)(b), 60CC (3)(a) - (c), (i), (j), 61DA, 65DAA |
| Goode & Goode (2007) 36 Fam LR 422 Keach & Keach (2007) FLC ¶93-353 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC ¶93-405 |
| Applicant: | MR MAULDON |
| Respondent: | MS MAULDON |
| File Number: | CAC 686 of 2008 |
| Judgment of: | Neville FM |
| Hearing dates: | 14 & 15 September 2009 |
| Date of Last Submission: | 15 September 2009 |
| Delivered at: | Canberra |
| Delivered on: | 15 September 2009 |
REPRESENTATION
| Advocate for the Applicant: | Mr Ezekiel-Hart |
| Solicitors for the Applicant: | Ray Swift Moutrage & Associates |
| Counsel for the Respondent: | Mr Gill |
| Solicitors for the Respondent: | Evans Yeend Family Lawyers |
ORDERS
That the mother will have sole parental responsibility for the children [X] and [Y] born [in] 2001 and [Z] born [in] 2004 (“the children”).
That the mother will advise the father of the following:
(a)Any school the children are enrolled in and ensure that he is listed as the alternate contact;
(b)Any medical or dental practitioner the children attend upon and ensure that he is listed as the alternate contact.
That each parent will:
(a)advise the other of any emergency or hospitalisation of the children when in their care pursuant to these orders;
(b)keep the other informed of their current address and telephone number and advise the other of any change to those details within three (3) days.
That the children live with the mother.
That the children will spend time with the father for a period of two months from the date of these orders as follows:
(a)For three periods of three hours per week as agreed between the parties; and
(b)Such other occasions as agreed between the parties.
That thereafter, the children will spend time with the father as follows:
(a)For three periods of four hours per week as agreed between the parties; and
(b)Such other occasions as agreed between the parties
That for the purpose of the father spending time with the children in accordance with Order 5 and 6 above, the father will advise the mother of his proposed times no less than 48 hours prior to the commencement of the proposed period.
That the father will collect the children from school or outside the mother’s residence at the commencement of his time with the children and will return the children to the mother’s residence at the conclusion of his time with the children.
That the father is restrained from removing the children from the Australian Capital Territory without the written consent of the mother or an order of the Court.
That without admissions, each party is restrained from physically disciplining the children.
That the parties are to attend parenting courses at organisations of their choosing.
That liberty be granted to the parties to apply to have the matter re-listed in relation to these Orders, for the purpose of reviewing the care arrangements for the children, by way of a family conference. In the event that the parties seek to exercise this order, the principle enunciated in Rice v Asplund and subsequent cases will not apply.
IT IS NOTED that publication of this judgment under the pseudonym Mauldon & Mauldon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 686 of 2008
| MR MAULDON |
Applicant
And
| MS MAULDON |
Respondent
REASONS FOR JUDGMENT
A. Introduction
Apart from the introductory seven paragraphs, which have been added since the trial, the following ex tempore reasons were delivered immediately at the conclusion of the very brief trial. They have been revised from the transcript.
These proceedings concern competing parenting orders in relation to eight year old twin boys ([X] and [Y]), and their five year old sister, [Z] (“[Z]”).
The experienced Family Consultant, Ms Lang, records in her Family Report, dated 3rd February 2009 (para.2), that the children have lived with their Mother since the separation of their parents. She also notes that, prior to orders made on 27th August 2008, the children spent time with their Father on an ad hoc basis. It was also largely uncontested that Mr Mauldon has been absent from the children’s lives, for not insignificant periods, due to time spent in Zimbabwe. Indeed, as noted below, Mr Mauldon did not attend the conference with Ms Willetts, who recorded in her Report that (so it was said by Ms Mauldon)
Mr Mauldon had refused to advise her when he would be returning to Australia.
The orders of August 2008 provided for Mr Mauldon to spend time with the children each Wednesday from after school until 7pm, as well as each weekend from after school on Friday until 4pm on Sunday.
At the trial, Mr Mauldon was briefly cross-examined; Ms Mauldon was not required for cross-examination; and the two Family Consultants, Ms Lang and Ms Willetts, were also very briefly cross-examined.[1]
[1]Summarily stated, Mr Mauldon seeks orders for equal shared parental responsibility and an equal time arrangement; Ms Mauldon seeks orders for sole parental responsibility and that the children spend regular but limited, defined time with their Father.
Ms Willetts identified in her Report (para.5) the issues in play as the `regular and predictable time for the children with their Father that is positive for them; the hostile nature of the parent’s relationship for the children; [and] the Father’s ability to be a secure and predictable presence in the children’s lives.’[2]
[2] See also Ms Lang’s Report where she identified similar issues (Report, para.3).
B. Jurisprudential Considerations
The prescribed “legislative pathway”, with all of its nooks, crannies, foundations and byways, and much else besides, is set out in detail in the Full Court judgments in Goode & Goode, and from a differently constituted Full Court, in Keach & Keach.[3]
[3] (2007) 36 Fam LR 422, especially at [10], [47], [48], [56], [81] & [82], and (2007) FLC ¶93-353 at [24] ff respectively.
Secondly, for the purposes of context, principle and legislative framework, it is intended to be helpful to note (and formally to incorporate into these reasons), as I have done in other judgments, the utility of Brown J’s observations in Mazorski v Albright,[4] which provide a helpful summary of the Court’s responsibilities under Part VII of the Act. Her Honour’s not infrequently cited “twin pillars” description, of children having a meaningful relationship with both parents and the need to protect children from physical and psychological harm, neatly summarises the general principles that are in tension in these proceedings.
[4] (2007) 37 Fam LR 518 at [3] – [6]; see also [13] & [14]. Her Honour’s judgment is also important for the detailed discussion of what is a “meaningful relationship” under the Act: see [20] – [26]. This discussion was approved by the Full Court in McCall & Clark (2009) FLC ¶93-405 at [121].
I will deal firstly with s.61DA of the Family Law Act 1975 (“the Act”) and the presumption of equal shared parental responsibility.
In her evidence, Ms Lang spoke about the `fragile nature of the relationship’ between the parents. Indeed, it seemed not disputed or challenged that the relationship between the parties was, at the very least, volatile. As well, Ms Willetts recorded the children speaking, and being deeply concerned, about the fights between their parents.
In the light of (a) this significant volatility, (b) the genuine if not abiding concerns expressed by the children for their own fears, and (c) the children’s perception of the negative impact of the parental contests on their Mother, in my view, it would not be in the children’s best interests for an order to be made for equal shared parental responsibility. Accordingly, the order sought by Ms Mauldon for sole parental responsibility to be with her will be made.
Notwithstanding this first order, so as not to widen further the gulf between the parents, it is incumbent upon Ms Mauldon to keep
Mr Mauldon informed of any major issues arising in the course of the lives of the children. In particular, the matters set out in her proposed Orders 2 and 3 (in relation to the children’s schooling and health care) should be detailed to Mr Mauldon.
In terms of the evidence before the Court, I accept the submission by Mr Gill that its scope was very limited. This was so not least because Ms Mauldon was not required to give evidence.
As well, much of Mr Mauldon’s evidence was given orally for the first time today, which is to say that there was no updating or primary affidavit filed in the proceedings, his most recent affidavit having been filed in August 2008. I have already noted that Mr Mauldon was not present for the most recent family conference with Ms Willetts.
In the circumstances, the Court (and Mrs Mauldon’s Counsel) was hearing Mr Mauldon’s evidence in rather more difficult circumstances than is usually encountered. In any event, I found Mr Mauldon’s evidence to be somewhat problematic. By this I mean that he showed rather limited insight into the concerns of the children as recorded by both Ms Lang and Ms Willetts. Indeed, he challenged their opinions on many fronts, notwithstanding that he chose not to be present for the conference with Ms Willetts.
Apart from him disagreeing with the Reports, and oral evidence, of
Ms Lang and Ms Willetts, Mr Mauldon provided no evidence to refute the detailed comments and observations of the very experienced family consultants.
Given the limited evidence available to the Court, as I have indicated, the evidence of the two experts, Ms Willetts and Ms Lang, in my view, takes on even greater moment. In particular, as I indicated during the course of the trial, the evidence of Ms Willetts assumed particular importance because she had seen the children most recently.
It was a consistent theme in Ms Willetts’ Report that the children were significantly concerned about, and deeply affected by, the volatile and disruptive fights that took place between their parents. Consistently, she recorded in her Report the children wishing to try and stop their parents from yelling at each other. Their anxiety is not only perfectly understandable, but even on the somewhat limited material set out in Ms Willetts’ Report, one cannot help but be very concerned, and as empathetic as possible, for the children struggling to deal with the fights between their parents.
For example, at paragraph 6.7 of her Report, Ms Willetts recorded [Z]’s three wishes: “that Mum and Dad wouldn’t fight anymore, that Dad wouldn’t be so mean to Mum, no more trouble.” That is a good, simple and utterly clear summary of the concerns, and the anxiety, which is being communicated to, and being fomented in, the children by the consistent contests between the parents.
That said, I was impressed, without necessarily making any formal findings in relation to it, with Mr Mauldon’s evidence in which he said that he regarded Ms Mauldon as a friend. I took his statement to be genuine, although it was not easily reconcilable with the consistent contests between the parents. Clearly it is possible to regard someone as a friend but still have regular contests with them. However, contests cannot be a sure or solid foundation for a lasting, and fruitful relationship. Indeed, one would certainly hope that Mr Mauldon’s sentiment might be, or become, a reality in the lives of the children.
In any event, as I have indicated, the evidence of Ms Willetts in particular assumed great significance in these proceedings given the nature of the limited evidence that was before the Court. She repeated consistently that her concern for the children was for them to have as secure a base as possible in an environment in which they felt as protected as possible. This was also stated in the context of the children expressing their concerns about being hit with a strap (and or threatened by such conduct) by their Father.
Protection and the alleviation of any feelings of vulnerability are of paramount consideration and fall specifically within the responsibilities of this court as set out in s.60B(1)(b) and in s.60CC(2)(b) of the Act. They are also encompassed by s.60CC(3)(j), insofar as all of the provisions mentioned provide, in slightly different ways, for children to be protected from physical and, particularly in this instance, from psychological, harm, from being subjected to or exposed to abuse, neglect, or, in this instance again, family violence.
I take Ms Willetts’ evidence as a convenient touchstone for working through the so-called `legislative pathway’ as prescribed by the Full Court in Goode & Goode, in so far as that is possible on the limited evidence before the Court.
Thus, in relation to s.60CC(3)(a), the views of the children have been made abundantly clear. Accepting their ages and that the children’s views can change from time to time, nonetheless, the security of their views that were expressed and the consistency of them as noted by
Ms Willetts was of such a kind that the Court must take particular regard of their views, noting also that Ms Willetts stated that they were “at this stage.”
In relation to s.60CC(3)(b), in terms of the nature of the relationship of the children with their parents, Ms Lang made a particular point that it was clear that the children loved both of their parents. I reiterate and emphasise that my concern is essentially over the volatile and very fragile relationship between the parents and the impact that that has obviously had on the children’s feelings of security and vulnerability. While ever that volatility in the parental relationship is maintained, and there is little done to ameliorate or to alleviate it, the risk of the children not having a secure and growing relationship with their Father in the current circumstances will remain.
Insofar as s.60CC(3)(c) and (i) are concerned, which parts of the additional considerations relate to the attitude to the children and the responsibilities of parenthood, including the willingness and ability of the child’s parents to facilitate and encourage a close and continuing relationship with the other parent, again, there is very limited evidence before the Court upon which any formal findings can be made. I simply repeat the fact that Ms Lang noted that the children have a loving relationship with both parents but they feel much more secure and are obviously much more closely attached to their primary carer, their Mother.
In the circumstances of the case I do not see that subparagraphs (d) and (e) of 60CC(3) have any application. The issues before the Court, as already stated, really relate to dealing with this issue of family violence, the very fraught relationship between the parents, the anxieties, and the protection, of the children.
It has not been canvassed, at any stage, whether or not one or both parents would benefit from either an anger management course or some other parenting course, although there have been discussions from time to time regarding the latter. Mr Ezekiel-Hart informed me that Mr Mauldon has done courses in the past in relation to parenting, and Mr Gill confirmed that his client is more than content to attend a parenting course, obviously one which is most easily accessible by her. An order along those lines will be made.
I do not see that very much more would be gained by traversing the few remaining sections or subsections of section 60CC(3). There is insufficient evidence to do so.
In the light of my finding and orders in relation to the operation of the presumption in section 61DA, section 65DAA has no application regarding substantial and significant time. All of that said, I note that in evidence given by Ms Willetts, she agreed with the suggestion that was put to her by me that periods of three hours on approximately three occasions per week would be a good starting point for the time the children are to spend with their Father. After a couple of months that time could be increased by one extra hour on each occasion.
I should also note that it would be desirable that, in the event that there is any change to any time that the children spend with their Father, there be some form of formal record made, either in terms of any agreement reached as between the parents and also in terms of the consistency of Mr Mauldon’s attendance both for collecting the children and them spending time with him.
I raise the issue of the regularity, consistency and reliability of
Mr Mauldon’s time with the children because it was an issue raised in the course of the trial. This is to say that it was claimed, and not refuted, that Mr Mauldon could not be counted on the turn up at the agreed times to see the children, leaving aside the also unrefuted observation (or fact) that until a very short time before the trial commenced, there was no indication if Mr Mauldon was going to return from Zimbabwe.
Children (and those caring for them) need regularity, reliability and consistency in their lives. In the first instance, such matters must come from the parents in the ordering of their lives and in arrangements which they make for the care and welfare of their children.
For the sake of completeness, arrangements should also be made in relation to changeover so that the possibility and the frequency of interaction between the parents, at this stage, should be kept to a minimum. If at all possible, changeovers should be arranged at a neutral venue whether it be at school or otherwise.
C. Conclusion
The evidence in this case is scant. The best evidence before the Court comes from the two experienced Family Consultants. Their concerns relate overwhelmingly about the conflict between the parents, the lack of parental insight, and the reliability, of Mr Mauldon, and the genuine and consistently held (and expressed) anxieties of the children. The Family Consultants’ recommendations must carry the day as to what orders are in the children’s best interests.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Neville FM.
Associate: J. Curtis
Date: 23rd November 2009
Two Family Reports were prepared: the first by Ms Lang, dated 3rd February 2009; the second by
Ms Willetts, dated 10th September 2009. Both Reports were admitted into evidence: Exhibits A & B respectively.
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