Monckton & Anor and Viola

[2010] FamCA 737

FAMILY COURT OF AUSTRALIA

MONCKTON AND ANOR & VIOLA [2010] FamCA 737

FAMILY LAW – CHILDREN – Best interests of the child – Parental responsibility –
Guardianship

Aldridge & Keaton (2009) FLC 93-421

Family Law Act 1975 (Cth) ss 60CA, 60CC(2), 60CC(3), 61DA(1), 61DA(4), 65DAA

APPLICANT: Ms Monckton

SECOND APPLICANT: Mr Wilder

RESPONDENT: Mr Viola

FILE NUMBER: CAC 128 of 2010

DATE DELIVERED: 10 August 2010

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 10 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms P. Lyndon

SOLICITOR FOR THE APPLICANT: Watts McCray McGuinness Eley Family Lawyers

COUNSEL FOR THE SECOND APPLICANT: Ms P. Lyndon

SOLICITOR FOR THE SECOND

APPLICANT:

Watts McCray McGuinness Eley Family Lawyers

COUNSEL FOR THE RESPONDENT: Self-represented litigant

SOLICITOR FOR THE RESPONDENT: Self-represented litigant

Orders

IT IS ORDERED THAT:

1. G, born on … May 1999 (“the child”), live with her father.

2. The child’s father will have sole parental responsibility for her in relation to her long-term care, welfare and development:

   a.However, in relation to matters relating to major items or concerns about her health, in relation to which school she attends or changes in relation to her schooling of a significant nature, any question of her overseas travel, which town in which she is going to live, the child’s father will consult with, and genuinely try to reach agreement about decisions to be made in this regard with the applicant, Ms Monckton.  To that end, each of Ms Monckton and Mr Viola will keep each other informed of their email addresses, their telephone numbers, and their ordinary residential or postal addresses.

   b.Each of Mr Viola and Ms Monckton will facilitate Ms Monckton’s obtaining from any school that the child attends school reports and notices, such notices and reports to be sent direct to Ms Monckton, and she retains the opportunity to discuss matters relating to the child’s progress and development at school with her teachers.  Whether or not that might occur during a normal parent/teacher interview process or whether it occurs separately is a matter for negotiation between Mr Viola and Ms Monckton.

3. The child will spend time with her brother on a regular basis, and unless Mr Wilder and Mr Viola otherwise agree, this will happen on every fourth weekend commencing and ending at times to be agreed among the child, Mr Wilder and Mr Viola, and may involve the child’s travelling to Sydney from time to time to enable her to spend time with her maternal family, and in particular her maternal grandmother.

4. In addition, in every year the child and Mr Wilder will plan that they will spend a holiday together, such holiday to be of about one week’s duration, but the precise duration of which is to be a matter for planning and negotiation between Mr Wilder and the child:

   a.Notwithstanding the terms of the last suborder, the period that the child spends with Mr Wilder on holidays in each year will not be less than one week.

5. Nothing in these orders is intended to prevent the child in conjunction with Mr Wilder and Mr Viola and, for that matter, Ms Monckton, in reaching agreement about other arrangements which may suit the child’s interests better or which may recognise the fact that each of the adults in this matter also have a need to have their own lives and to pursue those in an appropriate and proper fashion.

6. The matter is removed from the pending cases inventory and all existing applications are finalised.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 128 of 2010

MS MONCKTON

Applicant

And

MR WILDER

Second Applicant

And

MR VIOLA

Respondent

REASONS FOR JUDGMENT

1. In this matter, the proceedings before the Court come in a sad way because of the fact that G, born in May 1999 (“the child”) has lost her mother, and also there have been a number of tragedies that have occurred to her recently. 

2. The fortunate part is that the child is surrounded by people who do love her and want to accept responsibility for her care, welfare and development, and who have her best interests at heart.  As is often the case with situations such as this, it is not always easy for everyone to agree exactly what it is that is best for her.

3. I have been considerably assisted in this matter by a report that I have from the family consultant, Ms W, who has been able to tell me that, independently of either of the reports from any of the parties, that the child is a person who is able to express her own views and does so clearly for someone of her age.  In fact, the child does express herself in a way that is mature for her age, and that, in the opinion of the family consultant, therefore, the child’s opinions should be at least respected.

4. In making any order about a child, I must take into account, as a paramount consideration, what is in the best interests of the child.[1] 

   [1] Family Law Act 1975 (Cth) s 60CA.

5. In determining what is in the child’s best interests, s 60CC(2) and s 60CC(3) of the Family Law Act1975 (Cth) sets out a number of factors which I have to take into account.

6. There is in this matter an issue between Ms Monckton, who is named as the testamentary guardian of the child, and Mr Viola, the child’s father, about how they are to share, if they are at all, the parental responsibility for the child.

7. Ms Monckton believes that she has an obligation to be involved in parental responsibility for the child because of the wishes of the child’s mother as expressed in her Will.  I am satisfied that Ms Monckton’s involvement in these proceedings has been entirely on an altruistic basis. 

8. Mr Wilder is the child’s brother, and his involvement also is on the basis that he is anxious to maintain his fraternal relationship with the child, and to ensure that the child maintains a connexion with the mother’s family, as well as with the father’s family.

9. The geography in this matter is also difficult.  The child and her father now live on the south coast of New South Wales (NSW).  Mr Wilder lives in Sydney, NSW and works there five days a week.  Mr Wilder has been, in accordance with interim arrangements, travelling from Sydney down to the south coast on about every second weekend, and spending time with the child usually at a local resort, although on one occasion at least, if not more, he has taken her back to Sydney.

10. It is useful for the child to go to Sydney from time to time so she can spend time with other members of her mother’s family and, in particular, her grandmother, who is not really capable of travelling down to southern NSW (certainly not on a regular basis). 

11. The father is anxious that she should have security in her environment, and that she should be able to be a young woman who participates in normal activities and engages with her friends like any 11 old might, including participating in some activities which require her regular attendance.  Hence, if she were to be away from those people and did not participate in such activities on a regular basis, this would probably mean that she would not be able to engage as well as she might like to do.

12. All of the parties in these proceedings have been very anxious to ensure that what they are trying to do is to get the best possible result for the child.  We are all headed in the same direction, which is not always the case in this Court.  There is a disagreement that has remained to this point, requiring my judgment, about the way in which those objectives might be accomplished.

13. On the part of the father, he says that in accordance with what he interprets as the child’s wishes, she should spend one weekend a month with her brother.  The father is prepared to communicate with Mr Wilder and, for that matter, with Ms Monckton and to facilitate what the child wants – which is a proper relationship between her and her brother. 

14. For his part, Mr Wilder is concerned that there should be regular and predictable times that the child will spend with him so that he can maintain this direct relationship with his sister, and that she will: have knowledge of; be involved with; and accept the love of; her mother’s family.

15. These are altruistic objectives on Mr Wilder’s part.  The fact that he is a 27 year old, who is prepared to drive for approximately four hours from Sydney to the south coast on every second weekend, and in addition to even contemplate the fact that he might come down and pick her up and take her back again on a regular basis, is a fair measure of his dedication to his sister. 

16. Those are significant matters on both sides, and the interesting part about it, I suppose, is that the child has been consistent in the expression of her views that she wants to see her brother, but she does not want to see him quite as regularly as Mr Wilder would like her to see him.  That fact has been revisited this afternoon as a result of a conversation that Ms W had with the child.

17. As a result of that conversation as reported by the family consultant in open Court, I am satisfied that the child’s views about the arrangements involve her principally spending a weekend every four weeks with her brother rather than every second weekend or some hybrid variation thereof, as I had previously suggested.  I should point out that having had a preliminary discussion with the parties this afternoon, I provided an opportunity for Ms W to talk to the child (in effect unannounced).  I am satisfied that she had not been prepared for the conversation, was somewhat surprised to have received a call from someone from the Court, recognised with whom she was speaking, and expressed her views in a forthright and honest way, as has been reported to the Court by Ms W.

18. In that situation, I accept that the child’s views as they have been reported by Ms W are very likely to be what she really wants rather than what she thinks people might want to hear this day. 

19. The factors that I am obliged to take into account under the Family Law Act 1975 (Cth) include two primary considerations. The first is the benefit to the child in having a meaningful relationship with both of her parents (a term which is a term of art in the context of these proceedings where the child only has one parent still alive) and the need to protect her from physical or psychological harm.

20. There is no suggestion in this matter that she would be subjected to physical or psychological harm if she were with either Mr Viola or Mr Wilder or any member of her mother’s extended family.  There is no reason for me to place any particular emphasis on that. 

21. To the extent that the word “parent” appears in the 60CC(2) and s 60CC(3), I believe that it is reasonable to construe the parties in these proceedings, and while it may seem somewhat incongruous to refer to the child’s brother or Ms Monckton as a parent, or in the context of parenthood, it is nevertheless a significant factor to be taken into account pursuant to 60CC(3)(m) which is “any other fact or circumstance that the Court considers as relevant.”[2]

    [2] See Aldridge & Keaton (2009) FLC 93-421.

22. Pursuant to the relevant considerations under s 60CC(2) and s 60CC(3) of the Family Law Act 1975 (Cth), I take into account the following factors.

23. I have taken into account the views expressed by the child, and I have already outlined those.[3] 

    [3] Family Law Act 1975 (Cth) s 60CC(3)(a).

24. I am to take into account the nature of the relationship of the child with each of the relevant people in these proceedings which practically speaking are Mr Wilder and her father.[4] I am satisfied, as are each of them, that the relationship she has with the other is an appropriate and proper one, and one which is loving and one which requires fostering.  The closer of the two relationships, and this is natural in the circumstances, is with her father.  That does not mean, however, that it is not important for her to continue to have the connexion with and the relationship with Mr Wilder and her extended family.

    [4] Family Law Act 1975 (Cth) s 60CC(3)(b)(i) & s 60CC(3)(b)(ii).

25. There is a reference in s 60CC(3)(c) of the Family Law Act 1975 (Cth) to “parents” which is the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship with the other parent. Again, I make the point that although it is clearly incongruous that Mr Wilder should fall within that concept of parent, even to the extent that it is necessary for me to do so, I would take it into account under s 60CC(3)(m) of the Family Law Act 1975 (Cth).

26. Each of Mr Viola and Mr Wilder have continued to quite properly encourage the close relationship between the child and the other person.  This is not only appropriate, but admirable. 

27. I take into account the factors under s 60CC(3)(d)(i) and s 60CC(3)(d)(ii) of the Family Law Act 1975 (Cth). If the child were to spend more regular time than I propose to order with her brother, it may well be that this would affect the sort of relationship she is able to develop as a young, (soon to be) teenager, and to pursue the things that a girl of her age might ordinarily pursue. That has to be balanced, as is often the case, with children who have parents who are separated or, in this case, adults who wish to spend time with her, against the problems of geography and the context in which the benefit from the association with the family is likely to have with the benefit from being involved in activities such as kickboxing or “Nippers” as she would like to pursue. There is nothing in that which would affect the nature of the orders I propose to make.

28. I take into account the factors under s 60CC(3)(e) of the Family Law Act 1975 (Cth) (and in a similar way pursuant to s 60CC(3)(m) of the Family Law Act 1975 (Cth)). The difficulties and expense of the child spending time with, and communicating with Mr Wilder have, through his self-sacrifice, been obviated because he is the person who is making all the running. This is on his part a very generous act, and one to be commended, and something for which he should receive significant credit. As a consequence of that, although there is serious inconvenience, not only to him, but also to the child in the travel that might be involved, it is not a factor which would prevent my making an order that she spend some time with her brother.

29. I am required to consider the capacity of all the relevant people to provide for the child’s emotional and intellectual needs.[5]  This has never been an issue in this matter.  Each of the people involved seeks to support the child’s emotional needs.  There have been differences of opinion about what they are and how they might best be met.  I do not for one moment doubt the sincerity of those who are involved in trying to reach that position. 

    [5] Family Law Act 1975 (Cth) s 60CC(3)(f)(i) & s 60CC(3)(f)(ii).

30. There are certain factors in some cases involving lifestyle and background or Aboriginality that require attention.[6]  That is not the case in this matter.

    [6] Family Law Act 1975 (Cth) s 60CC(3)(g) & s 60CC(3)(h).

31. There are no aspects of family violence[7] that are relevant to these proceedings which I am to take into account. 

    [7] Family Law Act 1975 (Cth) s 60CC(3)(j).

32. I am also complimentary of, and supportive of the attitude of each of Mr Viola and Mr Wilder to the child’s best interests and to the responsibilities that each of them has in relation to her, and, again, while s 60CC(i) of the Family Law Act 1975 (Cth) refers to parents, I accept that it has equal relevance in these proceedings under s 60CC(3)(m) of the Family Law Act 1975 (Cth).

33. Section 60CC(3)(l) of the Family Law Act 1975 (Cth), somewhat perversely, in my opinion, states that I should take into account in making an order whether it would be preferable to make an order that would least likely lead to the institution of further proceedings in relation to the child. The orders I make, I hope, will have that effect, although, ultimately, if the parties are unable to agree, it is probably preferable if they come to the Court rather than some other means of resolving disputes are undertaken if they are not matters of finding agreement. It does not mean that Mr Wilder and Ms Monckton cannot agree and should not agree. It just means that I accept that they might not agree.

34. Those then are the factors I take into account.  The practicalities of these, the child has indicated in fairly direct terms that she would prefer to spend time with her brother once a month.  In my view, the appropriate order should be on a firm basis that she spends every fourth weekend with her brother unless Mr Wilder and Mr Viola otherwise agree, the child taking the view that arrangements should preferably be made between them rather than involving her. 

35. It is important that, as an 11 year old, the child is not obliged to make decisions which the adults in her life are unable to make on her behalf.  In my opinion, it is important that she should be relieved from the obligation of having to make decisions between people she loves in a way that may cause pain or some sort of dissatisfaction from one or to the other of them.

36. I have left until the end the issue that exists between Ms Monckton and Mr Viola. Ms Monckton was constituted by the mother’s Will the parental guardian of the child.  This has no direct bearing on the proceedings before the Court, and does not constitute in any way an overriding of the authority of this Court or of the Family Law Act 1975 (Cth) to determine who should be responsible for the parenting of the child.

37. I have examined with the parties what parental responsibility is all about.  The Family Law Act 1975 (Cth) contains some definitions about what parental responsibility means, and those that are interested can read it. In essence, however, what it amounts to is this. Parental responsibility is not the same as parental rights.  It does not mean that I have to decide who has the right to decide anything but, rather, who is going to share the obligations that properly exist in relation to the child’s well-being both today, in the medium term and the long term.

38. In determining how that might occur, it is necessary to be practical as well as theoretical.  The practicalities are that on a day-to-day basis, the child is going to be principally with her father, and he is the person who should make the decisions about those day-to-day matters.  That is not to say that when she is spending time with her brother or, for that matter, with Ms Monckton or some other member of her mother’s family that they should not be responsible for making the appropriate decisions on a day-to-day basis.

39. It would be absurd that, for example, someone had to ring Mr Viola to decide what flavour of ice-cream the child might have on any particular day.  By the same token, it is important that those decisions which are appropriate for the child’s day-to-day well-being are matters that are undertaken by her father as the one who is most close to her, and the one who is responsible on a day‑to‑day basis for ensuring that her life proceeds in a satisfactory and well‑ordered way.

40. The issue really arises on a broader level as to what is to happen about the long-term factors bearing upon the child’s best interests.  These are matters that might loosely fall under the headings as they were put to me of her health (so far as major issues are concerned) and about schooling (to the extent that it relates to changes in the method of schooling and which school she might attend).  Such questions as to whether or not she should travel overseas and importantly, in the overall context of things, where she is going to live would also fall within this category. 

1. Some of these factors are already in place to the extent that she is attending school, and she is living with her father, and she is living in the south coast region of New South Wales.  The child has an involvement in other activities on a regular basis, and her health is, so far as I am aware at least, reasonably good.  What is going to be more problematic is that if at some point in the future any of those major questions falls for further consideration.  It is about the practicalities associated with where the child is living at present and, for that matter, how Ms Monckton might discharge what she sees, I think correctly and appropriately, as her responsibilities.

2. I have discussed with Ms Monckton and Mr Viola how that might be resolved.  It seems to me, and I have now suggested to each of them what should be the case.  While I would not venture to suggest that it is clear and unequivocal that they accept what I am putting to them, I believe in broad terms the approach I propose to undertake is substantially agreed.  That is that ultimately Mr Viola, as the child’s father and a person with whom she lives principally, should have sole parental responsibility for the child, but he should do so with some qualifications.  Those qualifications are that in relation to the matters I have outlined as being significant in relation to her long-term care, welfare and development he should have an obligation to the child and, ultimately, by order of this Court, to this Court to consult with Ms Monckton.  That means more than simply sending an e-mail saying: “This is what I am going to do”, but, rather, to genuinely speak to her, seek her views and be informed by her opinion.

3. If there is to be a difference of opinion between Ms Monckton and Mr Viola then, because he is the person who is primarily charged with her day-to-day care Mr Viola’s opinion on these matters should prevail.  However, the process of consultation will find, in my opinion, more often than not that there is agreement about what will be in the child’s best interests.  In addition, if there should remain areas of disagreement, then the process of consultation will sufficiently forewarn – and that is probably not the best term that I might reasonably use – Ms Monckton so that if she felt that what was being undertaken was contrary to the child’s best interests she could bring proceedings in this court at short notice if she felt required to do so.

4. Accordingly, I propose to make orders of the sort that I have just indicated in relation to parental responsibility. That does not impose, in this case, an obligation of joint or equal shared parental responsibility. So I am not obliged by reason of making an order of that sort to consider the matters that section 65DAA of the Family Law Act 1975 (Cth) mandates.

5. I am conscious of the fact that s 61DA(1) of the Family Law Act 1975 (Cth) involves my applying a presumption that there should be equal shared parental responsibility when making a parenting order.

6. The Family Law Act 1975 (Cth) provides for a number of bases upon which that presumption might be rebutted, and most of them are not applicable in this case, but I am satisfied that it is, for the reasons that I have outlined above, in the child’s best interests that the presumption should be rebutted in any event.[8]  I express that rebuttal by my making an order, as I have suggested, for sole parental responsibility. 

   [8] Family Law Act 1975 (Cth) s 61DA(4).

I certify that the preceding forty-six (46) are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 10 August 2010.

Senior Legal Associate: 

Date: 17 August 2010