Monds & Mullan
[2009] FMCAfam 58
•30 January 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MONDS & MULLAN | [2009] FMCAfam 58 |
| FAMILY LAW – Parenting – best interests – meaningful relationship – responsibilities and virtues of parenthood. |
| Family Law Act 1975, ss.43, 43 (c), Part VII, 60B (1)(a), 60B(2)(b), 60CA, 60CC (2)(a), 60CC (3)(c), (i), (j), (k), (4), (4A), 61DA, 61DA (4), 65DAA |
| AMS v AIF (1999) 199 CLR 160 Commonwealth Parliamentary Debates (Senate) (13th December 1973) J. Annas, The Morality of Happiness, (New York: Oxford University Press, 1993) |
| Applicant: | MR MONDS |
| Respondent: | MS MULLAN |
| File Number: | SYC 4649 of 2007 |
| Judgment of: | Neville FM |
| Hearing dates: | 16 & 17 June & 2 October 2008 |
| Date of Last Submission: | 2 October 2008 |
| Delivered at: | Canberra |
| Delivered on: | 30 January 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Foster |
| Solicitors for the Applicant: | Harris Friedman Hyde Page Lawyers |
| Counsel for the Respondent: | Mr Nash |
| Solicitors for the Respondent: | Pappas, J. – Attorney |
ORDERS
(a)Until further order, the mother have sole parental responsibility in relation to the children [X] born in 2002 and [Y] born in 2004 (“the children”).
(b)During the course of this order, the mother is to consult with the father regarding major, long-term issues (as defined in the Family Law Act 1975) in relation to the children including, but not limited to:
(i)Selection of pre-school, infant schools, primary schools and secondary schools;
(ii)Medical treatment to be administered to the children, including examinations, operations, medical treatment, dental and orthordontic treatment, speech therapy and physiotherapy; and
(iii)The emotional development and wellbeing of the children including attendance by them upon any counsellor, psychologist or psychiatrist.
Subject to orders set out below, the children live with the mother.
The children will spend time with the father as follows:
(a)During the New South Wales Term One school period, at a location within a 50 km radius of the Bateman’s Bay area:
(i)For a period of four weeks, commencing at the beginning of the Term One school term, as agreed between the parties but in default of agreement, from 12:00 noon until 4:00pm on both Saturday and Sunday each alternate weekend;
(ii)For a further period of four weeks, from 11:00am to 4:00pm on both Saturday and Sunday each alternate weekend; and
(iii)For the remainder of Term One, from 10:00am to 4:00pm on both Saturday and Sunday each alternate weekend.
(b)During the New South Wales Term Two school period:
(i)For a period of four weeks, commencing at the beginning of the New South Wales Term Two school term, from 12:00 noon Saturday to 4:00pm Sunday each alternate weekend; and
(ii)For the remainder of Term Two, from 12:00 noon Saturday to 4:00pm Sunday each alternate weekend in Nowra at the home of the paternal aunt, Ms B.
(c)During the New South Wales Term Three school period:
(i)From 12:00 noon Saturday to 4:00pm Sunday each alternate weekend in Nowra at the home of the paternal aunt, Ms B.
In addition to Order 3, and subject to any alternative agreement between the parties in writing, the father has the option to exercise spending time with the children in Nowra during the July school holiday period from 12:00 noon on 17 July 2009 to 12:00 noon on
20 July 2009. The father is to provide the mother with not less than one month’s prior written notice of his intention to exercise the option pursuant to this Order.
For the purposes of Order 3 (a) and Order 3 (b)(i), the father is to collect the children from outside the front of the mother’s residence and return the children at the conclusion of time to outside the front of the mother’s residence, but shall not otherwise approach or remain within one hundred (100) metres of the mother’s residence.
For the purposes of Orders 3 (b)(ii) and 3 (c)(i), the mother is to deliver and collect the children to the home of Ms B, or any other such location as agreed in writing, at the commencement and conclusion of the father’s time with the children.
For the purposes of Order 4, the mother is to deliver and collect the children from Ms B’s home, or such other alternative location as agreed by the parties in writing.
The father be permitted to telephone the children between 7:45am and 8:00am each Tuesday and Thursday, and on each alternate Monday immediately following the weekend when the children have not been spending time with the father. The mother is to provide the father with a landline telephone number by which the father may contact the children, within seven (7) days of the date of these orders.
The parties are to attend upon Ms Blanch in mid October 2009, on a date and time to be advised by the Court, for the purpose of reviewing the ongoing arrangements in relation to the children. Ms Blanch is requested to prepare a further report addressing this issue.
Subject to the outcome of the review in accordance with Order 5, the children will spend time with the father during the 2009 Christmas school holidays for five consecutive nights in the weeks commencing 27 December 2009 and 11 January 2010. The father is to provide the mother with not less than one month’s prior written notice of the start and finish date of each of the periods above, which shall commence at 10:00am on the day of the first night and conclude at 4:00pm on the day following the last night.
Each of the mother and father be restrained by injunction from:
(a)Changing the children’s names or otherwise addressing, causing or permitting the children to be known as any name other than the name of [X] or [Y] as the case may be, without the prior written consent of the other party;
(b)Causing the children to consult a medical practitioner, psychologist, therapist, and/or counsellor without first obtaining the consent of the other party in writing to such consultation except in the case of emergency or necessity;
(c)Denigrating or otherwise speaking ill of the other party in the presence of the children, and they must use their best endeavours to ensure that no other person does so;
(d)Discussing these Court proceedings with the children or in their presence and they must use their best endeavours to ensure that no other person does so;
(e)Causing or permitting the children from referring to any person other than the parties as mother/father, as the case may be, or any diminutive thereof; and
(f)Removing [X] from [S] School unless agreed otherwise by the parties and the mother and father shall cause the child [Y] to be enrolled in that school.
Each of the father and mother shall:
(a)Notify the other party as soon as possible and in any event within 24 hours of any serious injury or illness suffered by the children whilst in the care of that party;
(b)Provide photocopies of school reports or announcements of school activities or otherwise pertaining to the education of the children or if none have been made available in writing, written particulars of such reports and/or activities to the other party within seven days of such documents or particulars being made available to the other party;
(c)Be at liberty to attend school functions, or other occasions significant to the health, education, sporting activities, religious education or welfare of the children in respect to which the attendance of parents is to be reasonably expected and in this regard the father shall give to the mother not less than 48 hours notice of his intention to attend on such occasions by email, SMS or in writing and in such event the mother shall ensure that the children attend the occasion in relation to which the father has given notice;
(d)Provide the other party with an address and a telephone number of the places where the children will be staying during periods of holiday;
(e)The mother shall facilitate the children to telephoning the father and shall encourage and facilitate the children to participate in such calls when the father telephones to speak to the children;
(f)Keep each other informed at all times of the name, address and telephone number of any doctors or other health professional seen by the children; and
(g)Continue to communicate with each other pursuant to Order 5 of the Consent Orders dated 7 November 2008.
The matter be adjourned to 23 November 2009 at 4:15pm, following the release of the updated family report.
IT IS NOTED that publication of this judgment under the pseudonym Monds & Mullan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
SYC 4649 of 2007
| MR MONDS |
Applicant
And
| MS MULLAN |
Respondent
REASONS FOR JUDGMENT
Introduction
Despite attempts in the course of the trial, this case did not settle. It is most regrettable and unfortunate that it did not. Why it did not, and of course other issues, is recounted in these reasons.
Formally, this case concerns, not whether two young girls, [X] (aged 6) and [Y] (aged 4 – five in April 2009), spend time with their Father,
Mr Monds, but rather more simply – but nonetheless delicately - the amount, and the conditions under which, it occurs.
In reality, however, the case is most directly about how their Mother, Ms Mullan, deals with the impact of her past relationship with
Mr Monds on her capacity to foster and promote the girls’ relationship with their Father.
From a statutory perspective, the case concerns the interaction of s.60CA of the Family Law Act (“the Act”), regarding the children’s best interests, and (among other sections) s.60B(1)(a), s.60B(2)(b), s.60CC(2)(a) and s.60CC(3)(c) and (i), and s.60CC(4), regarding the care, protection, welfare and parenting of these young girls.
Against the fundamental principle of the children’s best interests being the paramount consideration, all of the sections listed, to some degree, relate to:
i)the children having the benefit of both parents having a meaningful involvement in their lives,[1]
ii)the children having a right to spend time, and communicate, with both parents on a regular basis, and
iii)`the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent.’
[1] For a recent, very helpful and instructive discussion of what is comprehended by “meaningful” in Part VII of the Act, see R. Chisholm, “The meaning of “meaningful”: Exploring a key term in the Family Law Act amendments of 2006,” (2008) 22 Australian Journal of Family Law 175.
These matters were properly and thoroughly recognised by the experienced Counsel for both parties. For example, when referring to the contents and recommendations of the (also highly experienced) Family Consultant (Ms Blanch) in her Report (Exhibit “F” in the proceedings) in his opening remarks, Mr Foster, for Mr Monds, referred to: “… some proposals for a staged – not a reintroduction, but a staged restoration of a proper relationship between the children and the father.”[2] In the same address Mr Foster then went on to refer to “a number of particularly sticky factual historical issues between the parties … that don’t bear much on what the ultimate result is.” From what follows, it is patently clear that those “sticky factual historical issues” loom large especially in Ms Mullan’s life, some perhaps for good reason, most rather less so.
[2] Transcript (16th June 2008) p.1.
For his part, Mr Nash (for Ms Mullan) agreed with Mr Foster’s brief description of the scope of the dispute, as relating to “a staged restoration of a proper relationship between the children and their father.”[3] After some further discussion early in the trial, Mr Nash said: “The issue is the timing of the staged introduction or the introduction of the father to the children.”[4] The real sticking point related to the period of time over which this is to occur. Mr Monds seeks that it occur over twelve months; Ms Mullan seeks that it occur over a longer period and with greater “facilitation.” It is clear that that is as much for Ms Mullan’s benefit as it is for the children’s benefit.
[3] See Transcript (16th June 2008) p.2.
[4] Transcript (16th June 2008) p.6.
A related issue in the proceedings was whether there should be (a) an order for equal shared parental responsibility (as sought by Mr Monds), or at least for a limited period, (b) an order for sole parental responsibility in favour of Ms Mullan but with a requirement on her part to consult with Mr Monds about decision-making in relation to long-term or major issues involving the children. Again, it is more than likely to be the case that this exercise, which could be characterised as practical semantics in search of judicial imprimatur, is essentially an instance of Ms Mullan seeking some sort of legal (and other), psychological and other comfort vis-à-vis the legacies of the past involving Mr Monds and their impact on current parenting arrangements. But it is typical of her painful, perhaps almost paranoid, angst involving Mr Monds.
After outlining the parties’ respective proposals, these reasons proceed in three parts: first I offer some observations regarding the importance of certain virtues in relation to parenthood in a post-separation situation such as the present. I do this in the context of a consideration of the basic principles enshrined in the Family Law Act from its inception, and in the light of more recent exposition of its principles. Secondly, I consider the evidence both of the parties then of the experienced family consultant, Ms Blanch. Thirdly, in the light of a brief consideration of relevant judicial authority, the orders are laid out in accordance with what, in my view, is in the girls’ best interests.
Orders Sought
In a document settled by Counsel for Mr Monds on 2 October 2008,[5] titled “Minute of Orders Proposed by the Applicant Father”, the Father seeks the following Orders (stated summarily) to be made on a final basis:
[5] There are several versions of the same document on file, however the final version of the document was forwarded to my Associate on 28 January 2009.
a)Equal shared parental responsibility;
b)That the mother and father have sole responsibility for the day to day care of the children while the children are in their care;
c)That the children live with:
i)the father from 10.00am Saturday to 3.00pm Sunday each alternate week until the commencement of the school year in 2009, and thereafter each alternate weekend during school term commencing on the first weekend after the commencement of school term, and as otherwise provided herein (until the commencement of the 2009 school year the father shall stay within a 50km radius of Nowra); and
ii)with the mother at all other times.
d)That in the school holiday periods the children spend time with the father as follows:
i)That during the 2009 school holidays:
a.three consecutive nights in week one of Term 1;
b.four consecutive nights in week one of Term 2;
c.five consecutive nights in week one of Term 3; and
d.during the Christmas School holidays for 5 consecutive nights in the weeks commencing Sunday 27 December 2009 and 11 January 2010
ii)That the children spend one half of each of the school holiday periods with the father and the other half with the mother (from the commencement of the 2010 school year);
e)Time with the children on Christmas Eve til Boxing Day is proposed to be shared on an alternating basis;
f)Changeover is proposed to occur at the [omitted] McDonalds, as somewhat of a mid-way meeting point;
g)Each of the mother and father be restrained by injunction from:
i)Changing the children’s names in any way;
ii)Causing the children to visit any type of medical practitioner/counsellor without consent of the other party;
iii)Denigrating one another;
iv)Causing or permitting the children from referring to any person other than the parties as mother/father, as the case may be, or any diminutive thereof;
v)Removing [X] from [S] School unless agreed otherwise by the parties and the mother and father shall cause the child [Y] to be enrolled in that school.
h)Each of the father and mother shall:
i)Notify the other party as soon as possible and in any event within 24 hours of any serious injury or illness suffered by the children whilst in the care of that party;
ii)Provide photocopies of school reports or announcements of school activities etc;
iii)Be at liberty to attend school functions, or other occasions significant to the health, education, sporting activities, religious education or welfare of the children; with notice to be given to the mother prior to the event;
iv)Provide the other party with an address and a telephone number of the places where the children will be staying during periods of holiday;
v)Within one (1) day of the date of these Orders, notify the other party of the current residential address and landline telephone number and notify the other of changes in their residential address and telephone numbers no later than two days prior to putting the change into effect;
vi)That the mother shall facilitate the children to telephoning the father and shall encourage and facilitate the children to participate in such calls when the father telephones to speak to the children;
vii)Keep each other informed at all times of the name, address and telephone number of any doctors or other health professional seen by the children.
i)That the father be permitted to telephone the children each Monday, Wednesday, Friday and Sunday, provided that those telephone calls are made between the hours of 6.00pm and 7.00pm and the mother shall provide a landline telephone number by which the father may contact the children.
j)That the mother and father continue to use a communication book with such book to pass between the parties at times of changeovers and such book shall be used by the parties to record matters significant to the welfare of the children that it is necessary to communicate to the other.
k)That the parties are directed to attend upon the Family Reporter at such time and at such place as is directed by the Family Reporter on or after the 1 April 2010 for the purposes of a review of the ongoing arrangements in relation to the children.
In the document “Minute of Orders Sought by the Mother” dated
8 October 2008,[6] the Respondent Mother seeks the following Orders:-
[6] This document was forwarded to my Associate via email on 8 October 2008, and again upon request on 28 January 2009. A more fulsome, comprehensive document by the same name (but with different font) was handed up by Counsel for the Mother during the second day of hearing in June 2008.
a)That the mother have sole parental responsibility of the children, [X], born in 2002 and [Y], born in 2004.
b)That the children live with the mother.
c)That the children spend time with the father as follows:
i)Every second weekend on Saturday 12:00pm to 4:00pm and on Sunday 9:00am to 4:00pm within 50 kilometres of the Bateman’s Bay area until a review is undertaken.
ii)Handovers are to take place at the mother’s residence at Bateman’s Bay.
d)That the parties and the children attend upon the Family Consultant in June 2009 to review the matter.
The Family Law Act, Founding & Other Principles, Parenthood & Post-Separation Virtues
The Family Law Act is pre-eminently about persons and their relationships. In one sense, legislation of this kind can be characterised, at its highest, as skeletal. The Commonwealth Parliament enacted it to ensure that certain principles are followed in the re-establishment of order to relationships that have foundered, and to protect the children of such relationships. But, as a skeletal outline of objects and principles, it needs to be, and continues to be, enfleshed. This occurs in large measure by courts deciding, according to principle and precedent, the limits and general parameters that give life to the principles of the Act.[7]
[7] Of course, I should also refer to the “principles to be applied by courts” under the Act, set out in s.43, which include (s.43(c)) “the need to protect the rights of children and to promote their welfare.”
The original objects of this landmark legislation were stated succinctly by Senator Murphy in a number of his Second Reading speeches on the Act. For example, in the first of his three Second Reading speeches the architect of the legislation said: “[the Act] should buttress, rather than undermine, the stability of marriage and, when a marriage has irretrievably broken down, it should enable the empty legal shell to be destroyed with the maximum fairness and the minimum bitterness, distress and humiliation. To have such a divorce law that will meet these tests is of even greater importance where there are young children who will be in contact with both parents after the divorce.”[8] Senator Murphy emphasised that he had consulted, here and overseas, a wide range of persons and bodies, across a range of disciplines, to inform the crafting of what became the Family Law Act.
[8] Commonwealth Parliamentary Debates (Senate) (13th December 1973) p.2828.
More recently, in the context of a relocation appeal, Kirby J expressed the following principles as applicable under the Act:[9]
… the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live. That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian or has been designated the sole guardian of the child. One of the objects of modern family law statutes … is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child…
[9] AMS v AIF (1999) 199 CLR 160 at p.208 [145]. Internal references have been omitted.
Even more recently, Kirby J said (again in the context of a relocation case): “It is … highly desirable that courts … should consider such cases in accordance with principles that are consistent, conformable to like legislation and attentive to the paramount consideration of the best interests of the child, viewed in the long term and not just the short term.”[10]
[10] U v U (2002) 211 CLR 238 at p.283 [164], emphasis added.
Earlier in that same judgment, Kirby J said:[11]
As has been stated in this Court and in the Full Court of the Family Court, the best interests of the child are to be treated as paramount. However, they are not to be elevated to the sole factor for consideration [in relocation cases]. The economic, cultural and psychological welfare of the parents is also to be considered, because they are human beings and citizens too and because it is accepted that their welfare impacts upon the welfare of the child. The general quality of life of both the parents and the child is relevant.
[11] U v U (2002) 211 CLR 238 at p.282 [159], internal citations omitted.
In the same case, Gummow and Callinan JJ observed and indeed highlighted the importance that litigating parents (and doubtless others too) recognise the constraints, and implicitly the sacrifices, that parenthood imposes. In their joint judgment – again I accent the context of and the issue in the appeal before the High Court was that of relocation – their Honours referred specifically to “obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.”[12] Their Honours recognised the obvious truth and daily reality that parenthood involves self-sacrifice.
[12] U v U (2002) 211 CLR 238 at p.263 [92].
Finally, in relation to principles of the Act, in the course of the Second Reading speech that was tabled in relation to the Family Law Amendment (Shared Parental Responsibility) Act2006, while still accenting the best interests of the child as the paramount consideration, the Minister said: “The Government wants to change the culture of family breakdown from litigation to cooperation.”[13] Clearly, such a change necessarily involves many things, which must include parents using their best endeavours to break any cycle of abject distrust, hurt and recrimination and replacing such things with appropriate virtues, such as those discussed below.
[13] Commonwealth Parliamentary Debates (Senate) (27th March 2006) p.78.
To give practical effect to the statutory requirement that `the best interests of the child are paramount,’[14] and in the light of the comments just noted from the Commonwealth Parliament and the High Court, it is clear that, as far as humanly possible, parents must, usually over time, adopt strategies and cultivate certain virtues to deal with the trials, tribulations and indeed, the genuine hurts and grievances that were suffered in the course of the marital (or marital-like) relationship.
[14] S.60CA of the Act.
It is in this `real-life context’ that the skeleton that is Part VII of the Act comes to the fore. It may appropriately be said that Part VII of the Act seeks to provide, in outline, the most basic touchstones against which persons (and others – including courts) may assess their parental responsibilities. As such, they are simply that: touchstones. Details have to be supplied.
To continue with the anthropological analogy, the sinew and muscle that must be added to the skeleton that is Part VII, as practised by courts and as envisaged by Senator Murphy (and many others since his time), comes from a range of sources, one of which might appropriately be described as the general field of ethics. Such theories have a long and distinguished history in the realm of jurisprudence.
For example, Sir William Blackstone argued in his Commentaries on the Laws of England that “…jurisprudence or the knowledge of those laws is the principal or most perfect branch of ethics.”[15] I cite this simply as an example of the close if not almost reciprocal link between certain aspects of ethics and law. This is especially so in family law, and particularly (in my view) in relation to Part VII and the lodestars of parenting to which the court is required directly to pay heed. All of that said, the court of course must give primacy to principles of law as enunciated and developed according to precedent. But genuine assistance is available from discourse in ethics.
[15] Commentaries on the Laws of England, (A Facsimile of the First Edition of 1765-1769) Vol 1 “Of the Rights of Persons”, § I “On the Study of the Law”, (Chicago & London: The University of Chicago Press, 1979) p. 27. Blackstone cites Aristotle, Nicomachean Ethics, Bk I.5.3. Alas, he seems here to be quoting from memory; the sentiment is redolent in many places in Aristotle but the text he cites, however, is not found where he says, or anywhere else in the Nicomachean Ethics for that matter!
For example, to harbour sentiments of retribution for past wrongs (real or imagined) will likely block the cultivation of any sense of forgiveness, which might facilitate a more irenic or even fundamentally civil or business-like relationship between parents concerning decision-making regarding children of the relationship. Even to continue to hold on to grievances – including those in which both parties could legitimately be considered to be responsible – without seeking explicitly to ensure that there is some form of “pay-back” to the other parent does two things.[16] First, it can portray an emotional immaturity and or an obstinacy by which the “grieving parent” does not or cannot let go of hurts of the past.[17]
[16] A very recent and most helpful study that looks at the issue of “conflict” and post-separation parenting issues is J. McIntosh & R. Chisholm, “Shared Care and Children’s best Interests in Conflicted Separation: A Cautionary Tale from Current Research,” (2008) 20 Australian Family Lawyer 3-16.
[17] Philosophers have described such things, in their discussion say of the virtue of fortitude or courage and the overcoming of fear [of a wide variety], as the “neurotic inability to live.” See, for example, J. Casey, Pagan Virtue: An Essay in Ethics, (Oxford: Clarendon Press, 1990 [reprint 1992]) p.51 ff. Similar important discourses can be found in each of the following important studies that are representative of an immense body of similar work which draw from and encompass an extremely broad range of traditions: Martha Nussbaum, The fragility of goodness: Luck and ethics in Greek tragedy and philosophy, (Cambridge: Cambridge University Press, 1986 [reprint 1995]); Julia Annas, The Morality of Happiness, (New York: Oxford University Press, 1993); and Alasdair MacIntyre, After Virtue: A Study in Moral Theory, (Second Edition) (Notre Dame: University of Notre Dame Press, 1984).
Secondly, and consequently, such a disposition prevents or at least inhibits the nurturing of virtues that will, in time, facilitate not only a letting go of the past but which will also promote a healing (even if only a partial healing) of injuries – primarily but not exclusively of an emotional and psychological kind.
In addition to the cultivation of virtues that will enable a person to deal with the vagaries, vicissitudes and hurts of the past, parents must also seek to deal with those “vagaries” that include various fears. Such fears embrace either the past coming back to inhabit or haunt the present, and/or the fear of the unknown of the future and facing it without the love and support of one’s – now former - life-companion. All of these fears can inhibit the post-separation relationship between former marriage (and marriage-like) partners and, in turn, impact detrimentally on the children of the relationship.
And it should be observed, if for no other reason than the sake of completeness, that there can even be a fear of sorts about dealing or coping with the ordinary, everyday toil of life and the frailties and fallibilities that each person brings to that daily labour. Often it is enough just to get through the day without having to carry the baggage (great or small) from the past.
Apart from expert evidence from psychiatrists and psychologists, social workers and others, there are multiple examples from literature, philosophy and even jurisprudence that strongly suggest the importance of the need for truth and reconciliation (understood in this context as an acknowledgement of the basic dignity of and respect due to the other person) before a person can hope to move on in their life rather then be tied to the hurts or wounds of the past. This is so whether those injuries have been most unjustly incurred or for which both parties share some responsibility.
History, of course, also teaches that these basic principles apply to nations as well as to individuals. For example, the Truth and Reconciliation Commission in South Africa, and our own on-going reconciliation journey with Aboriginal and Torres Strait Islanders Australians, are very recent lessons that vigorously attest to (a) the importance of acknowledgment of the past and (b) the engagement in some therapeutic process before there can be (c) any genuine `moving forward’ and appropriate responses to and planning for immediate and long-term issues.
Let me give two other examples, (I hope neither too exotic nor abstruse) this time taken from literature, which highlight, or at least suggest, the importance of the cultivation of virtue as an essential vehicle for restoring some basic dignities, including justice, to the lives of those who grieve for any manner of reasons, including the infliction of wounds that arise from hopes and relationships that have ruptured beyond repair. The impact on, and the importance for, the children of those who so suffer cannot, and should not, be under-estimated.
Dostoyevsky’s epic novel, The Brothers Karamazov recounts the trials (literal and other) of three brothers. There are multiple affairs – real and imaginary - terrible assaults, noble and gentle actions, and much else besides, all of which takes place amidst constant, perplexing and frustrating denouements as the entangled lives of the brothers unfold.
In the very final chapter of the book there is a genuinely wonderful scene that involves the youngest of the Karamazov brothers (Alyosha), an indisputably noble, kind and solicitous soul, speaking with a group of young boys. All of them are returning from the funeral of one of the boys’ class-mates. In urging them to consider what has happened in their lives with the death of the young boy, including their genuine closeness, Alyosha asks them to `make a compact’, there and then, about how they will remember their friend, how they will deal with the trials and tribulations they will encounter in their lives, and how they will remember their current, mutual friendship. Finally, he exhorts them to carry their good memories with them (to help deal with difficult times), and he implores them to live lives that are `generous and brave.’[18] My accent is on Alyosha’s final exhortation to the young boys to be “generous and brave.”
[18] See The Brothers Karamazov, “Epilogue: The Speech by the Stone.”
The second example – perhaps a tad unusual if not somewhat striking – is from Pericles’ famous “Funeral Oration” recounted by Thucydides. In the course of his public address to the Athenian people for those who had died in war, Pericles encourages the people not simply, or only, to mourn the death of the fallen soldiers but more so to focus on what is beautiful in life rather than, by implication, focussing on the morbid and those things that are necessarily depressing and especially difficult. More particularly he speaks about “bravery.” Although the context is war, his remarks apply equally to facing problems – great and small - in everyday life.[19] He says: “… 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.”[20] He concludes his oration, saying: “Make up your minds that happiness depends on being free, and freedom depends on being courageous.”
[19] “Courage” as a virtue is neatly and simply put in a number of recent studies, written for more popular digestion. See, for example, A. Comte-Sponville, A Short Treatise on the Great Virtues: The Uses of Philosophy in Everyday Life, (London: Vintage Books, 2002). Comte-Sponville, who is a professor at the Sorbonne, begins his discussion with a consideration of “politeness”, then travels on through “courage, justice [and] compassion” and concludes with separate chapters (all of them very brief) on “good faith”, “humour”, and “love.” Of course, it is almost trite (but not intended to be) to observe that all such virtues enhance and enrich human life, and their opposites (classically called vices) inhibit it.
[20] Thucydides, History of the Peloponnesian War, Book Two [34] – [46].
In the context of these proceedings, freedom (in a manner of speaking) will come when the memory chains of the past that have been forged to imprison or at least to constrain Ms Mullan’s actions in the present concerning the girls’ time with their Father, are broken or at least loosened. They will be loosened, to some degree, once the healing virtue of courage is recognised and appropriately (i.e via the virtue of prudence) implemented. It will also require, as it seems to me, a degree of generosity on her part - and that of Mr Monds.
I suggest that the virtues to which I have referred, highlighted by classic writers across a range of disciplines and across the ages – generosity,[21] bravery and sacrifice – are indispensable to persons who are grappling with a failed marital (and marital-like) relationship and the fall-out therefrom. Unless and until even the first vestige of them is cultivated, the mire of intransigence, fear and or powerlessness will continue to stultify parenting capacities, and a great many other things, all to the detriment of many people, most especially the children involved. Moreover, what Part VII of the Act articulates in outline, especially those sections referred to in [4] of these reasons, these virtues help bring to life.
[21] In his text, On Duties, I.18.61-I.23.92, Cicero uses terms like “greatness of spirit”, “a spirit great and exalted” in his discussion of self sacrifice and courage. Although the context is of that of service to the public by legislators and lawyers, his remarks have important, wider application.
Evidence of the Parties
The parties’ evidence may be treated somewhat thematically. This is so because, on any version, there remain significant difficulties between them on [only] two main fronts. They are (a) issues of communication and (b) [from Ms Mullan’s perspective] Mr Monds satisfying
Ms Mullan that his commitment to the children is both practical and completely reliable. The issue of reliability is less to do with the geographical distance between Sydney (where Mr Monds lives with his partner) and Bateman’s Bay (where Ms Mullan lives with the girls). These two issues permeated the evidence both in the affidavits relied on and in the evidence given during the trial.
I repeat: Ms Mullan does not contend that the girls should not see or spend time with their Father. The fundamental issues are, on the one hand, what period of time, and to what degree, it should be increased, and on the other hand, the circumstances and location(s) where the time spent should occur.
It also seems to be the case that communication between the parties was, once upon a time, not too bad, particularly when Ms Mullan was living in Canberra, and when Mr Monds would continue to visit her in Canberra to see the girls. It seems to have worsened considerably when Ms Mullan moved to Bateman’s Bay. One example will suffice.
Mr Monds stated that he did not know which school his daughter [X] was attending in Bateman’s Bay until six months after school commenced. The information only came to him following inquiries from his solicitor to Ms Mullan’s solicitor.[22] And for the record,
I should state that I accept Mr Monds’ version of events, as given during the trial, wherever there is any conflict between his account and that given by Ms Mullan.[23] In saying this, I should not be taken as suggesting that Ms Mullan was seeking to distract or to mislead the Court. Nor do I suggest that she was untruthful in her evidence.
[22] Transcript (16th June 2008) p.46.
[23] In his evidence at the trial Mr Monds rightly conceded that some of his affidavit material had been drawn in rather more black and white terms than in fact was the reality. Questions of candour and completeness of account were not all one sided with some questions over Ms Mullan’s detail of events. See Transcript (16th June 2008) pp.51 & 54 ff. Other examples are given in the course of the judgment.
In the light of the communication issue over schooling, but with wider application, it would seem to be necessary to state what should be obvious: basic communication is essential for adequate and appropriate parenting. Whatever the reasons for the lack of or poor communication – given the physical distance between the parents it is unlikely that
Ms Mullan can or could plead genuine fear of Mr Monds `dropping by’ – it must be remedied in a mature, adult way by both parents.
As is reflected in the orders sought set out earlier, Mr Monds wishes eventually to have the opportunity for the girls to spend time with him and his new partner in Sydney.[24] All things being equal, and things going well, this will occur.
[24] See Transcript (16th June 2008) pp.36 & 46. Mr Monds proposes that overnight time with the girls would occur first with a night in Bateman’s Bay, followed by a night in Sydney, then a return to Bateman’s Bay (also for an overnight stay with Mr Monds). This first overnight time would be, according to his proposal, in approximately 6 month’s time.
Mr Monds also accepted, both as a matter of principle and of practicality, that the increase in time that he spend with his daughters needs to occur gradually. This is especially so in a situation where there is some contest over the nature of his relationship with the girls.[25] This is to say that he considers his relationship with the girls to be very good, while Ms Mullan considers it to be rather more fragmented.[26]
[25] See Transcript (16th June 2008) pp.34 ff.
[26] There are multiple references in the evidence to this discussion. See, for example, Transcript (16th June 2008) pp.12, 16, 24-28, 32, 42-45.
While Mr Monds considers that, in a number of respects, Ms Mullan is “game-playing” in many respects in relation to arrangements for him to spend time with the children, for her part, Ms Mullan considers that
Mr Monds is not genuinely interested in the girls and that he is the one “game-playing.” She denied that she was or is playing any games.[27]
[27] See Ms Mullan’s evidence in multiple places, including Transcript (16th June 2008) pp.50-51, 52, 65, 67, 70.
One observation will suffice here: it would be an absolute perversion if someone would go to the extreme of prosecuting litigation to ensure that they spend time with their children yet their main motive was to make life more arduous for their Mother. Such is the force or substance of Ms Mullan’s contention about “game-playing” on the part of
Mr Monds. For my part, I did not detect anything other than a commitment on his part to secure reasonable time with his daughters. To so consistently make the long trek from Sydney to Bateman’s Bay, a drive in excess of 3 hours, as well as the costs (financial and other) in initiating legal proceedings, suggests to me commitment to the children rather than some sort of revenge or campaign against Ms Mullan.
One issue that plays on Ms Mullan’s mind considerably relates to a domestic violence incident in June 2003. I need not recount all details of it. However, there were a number of different versions of the event: the first version is in a statutory declaration sworn by Ms Mullan on 23rd September 2003. It became Exhibit “G” in the proceedings. The version of that event differs in significant respects from its account in Ms Mullan’s paragraphs 45-54 of her affidavit of 7th May 2008.
In the course of her evidence in the current proceedings Ms Mullan contended that there were sections of the statutory declaration that were false.[28] She acknowledged that Mr Monds’ Father, who had filed an affidavit in these proceedings and who also gave an account of the event in question, was not required for cross-examination.[29]
[28] See Transcript (16th June 2008) p.56.
[29] Transcript (16th June 2008) p.61.
For my part, should anything much turn on it, I prefer the record of the incident in Ms Mullan’s 2003 statutory declaration to the account she gave in her much later affidavit. In fairness to her, she continued to acknowledge, to varying degrees, that she was part of what might more accurately be described as the mutual, drink-assisted assault that was also perhaps the `end-play’ of their relationship. On her own account, which I accept, both parties (but perhaps especially Ms Mullan) were severely strained from lack of sleep from caring for a difficult first child, and from financial pressures.
The issues arising out of this 2003 incident for these proceedings are: (a) it is most unfortunate that this incident, in which Ms Mullan was significantly involved, on her account, continues to play a very prominent role in her thinking about and relating to Mr Monds, even though it is now more than 5 years ago. (b) In her own words,
Ms Mullan said: “I am scared for my safety with him. I don’t know what he is going to do. He’s made all sorts of threats, suicide and, you know, I am just concerned. And it is only going to stress me out which is going to stress the girls out.”[30]
[30] Transcript (16th June 2008) p.62.
There are many curiosities about this evidence of Ms Mullan. First, the most cogent aspect of this statement, in my view, relates to
Ms Mullan’s recognition of her stress and its flow-on effect to the girls. In many respects, this is the central aspect of the evidence and the parenting issue that has to be resolved. Secondly, there was no evidence about any threats from Mr Monds to Ms Mullan, and certainly none in relation to Mr Monds vis-à-vis the girls. Thirdly,
Ms Mullan conceded that notwithstanding this `2003 event’, Mr Monds not infrequently picked up the girls from her house in Canberra in 2004, 2005, 2006 and 2007. She confirmed that Mr Monds stayed at her Canberra residence on limited occasions. She also confirmed that Mr Monds was not advised that she was relocating from Canberra, which she did in 2007.[31] In my view, these events speak for themselves.
[31] Transcript (16th June 2008) pp.63-64. On the evidence, I accept too that there have been times when Mr Monds has not, for whatever reason, been quite so regular in his contact with the girls.
So too does the fact, which she acknowledged in her oral evidence, that from time to time Mr Monds came from Sydney to Canberra to look after the girls while Ms Mullan worked in a real estate office.[32]
[32] Transcript (16th June 2008) p.65.
And notwithstanding this not insignificant travel over a number of years, and therefore an obvious commitment to spend time with the children, and in part facilitated by Ms Mullan and also for her financial benefit, Ms Mullan now insists that he do so in a situation that is, to a degree, de facto supervision. In her oral evidence Ms Mullan agreed with the following proposition from Mr Monds’ Counsel: “So at the moment your position is that you will allow him to have three hours with his children every fortnight. Is that right? If he travels all the way to Bateman’s Bay and provided somebody else is present? Yes.”[33] To allow this situation to continue would, in effect, be to reward a degree of intransigence and fear that, in my view, is unwarranted and unsustainable.
[33] Transcript (16th June 2008) p.67.
Also of significance is Ms Mullan’s evidence, which confirmed that her proposal of three hours, effectively supervised and certainly facilitated, every fortnight, reflects the wish of the children. She stated: “That’s all they would be happy with. I have asked them.”[34]
[34] Ibid. In later evidence Ms Mullan conceded that she had discussed with the girls Mr Monds’ proposal for time with them. See Transcript (17th June 2008) p.95.
If this situation was to remain the case it is one where children aged 6 and almost 5 are either dictating to their Mother when they will see their Father, and or their Mother’s stress, anxiety and inhibition towards their Father is being regularly passed on to them. Both situations are unacceptable. Their continuation is not in the best interests of the children, nor in the best interests of their parents.[35]
[35] Ms Mullan continues to refuse to provide the children’s residential address to Mr Monds.
Ms Mullan also confirmed that she enrolled [X] in school without consulting Mr Monds. She contended that Mr Monds was not sufficiently interested in the girls’ life to warrant him being consulted about enrolling [X] in school. She said that because Mr Monds never asked about the choice of [X]’s schooling he was not consulted about it. She also contended that he had not been part of the children’s life, and therefore, this also [inferentially] justified him not being consulted about such issues.
Ms Mullan did not, and would not, concede that she had made communication about issues involving the girls more difficult by moving from Canberra without telling Mr Monds. And somewhat illogically said that she would have told Mr Monds of [X]’s first day of school if he had asked about it, that schooling was a “pretty big issue”, that she had an obligation to tell Mr Monds about such things, but nonetheless did not tell him and would have done so only if he had asked.[36]
[36] Transcript (16th June 2008) pp.67-68.
Ms Mullan initially stated that [X] had been enrolled under the name of “[X Monds]”, as set out in her birth certificate. She confirmed that she was sure of this fact. However, under cross-examination and the production of the enrolment form (which became Exhibit “E”),
Ms Mullan then said that she could not recall what had been filled in on the form. Upon seeing the form she then conceded that she had left blank details relating to Mr Monds.[37]
[37] Transcript (16th June 2008) p.68.
Ms Mullan confirmed that she had not advised Mr Monds about a teacher/parent interview for [X]. But she did say that she had no difficulty in Mr Monds knowing details of the school or any arrangements in relation to matters relating to teachers, tuckshop, and what might be described as the ordinary goings on at school.[38]
[38] Transcript (16th June 2008) p.70.
Ms Mullan also confirmed that she had not discussed, and was unlikely to discuss, [Y]’s schooling arrangements with Mr Monds. She consistently and abjectly refused to disclose her address, at least to
Mr Monds and certainly in the light of restrained, albeit persistent, questions from Counsel for Mr Monds.[39] In the absence of the parties
I expressed my concern about Ms Mullan’s attitude – on a number of bases – to Counsel for the parties.
[39] Transcript (16th June 2008) p.71.
Before getting to the Family Consultant’s report and evidence, it is sufficient to recall that Ms Mullan’s proposal is that the increased time that the girls spend with their Father, leading up to shared school holiday time, take place over the next two and half years.[40] Subject to what is set out in Ms Blanch’s Report and my comments on her evidence below, in my view such a protracted time-table is onerously and unjustifiably long. It must and will be shortened.
[40] See Transcript (17th June 2008) p.77.
I also accept, as noted by Ms Mullan, that the girls can be and sometimes are upset if they are not with their Mother. And this upset is not confined to any particular group of people. Ms Mullan said: “… they’re not comfortable with a lot of people when I am not around for long periods of time.”[41] Acknowledging that the girls are young children it could also be the case that, to some degree, that a level of dependence bordering on insecurity has been built up in the children as a result, in large measure, of their Mother’s acute levels of anxiety.
[41] Transcript (17th June 2008) p.77.
In answer to some questions that I put to her Ms Mullan said that regularity of time between Mr Monds and the girls would significantly allay the high levels of anxiety that currently exist.[42]
[42] Transcript (17th June 2008) p.79.
Finally in relation to Ms Mullan’s evidence I accept that she has high levels of anxiety concerning her relationship with Mr Monds. The fact that it purportedly relates to an event more than five years’ ago (and another event to which Ms Mullan referred but in relation to which there was no evidence before the Court) remains largely inexplicable on the evidence. This is especially so, as I have noted earlier, because Ms Mullan allowed and indeed facilitated time between the girls and their Father for some years before the much more recent freeze and overt hostility in the relationship between the parents.
On the positive side, modest as it is, Ms Mullan indicated that the girls (in her view) were more relaxed and comfortable when they spent time with their Father while also in the presence of his partner, Ms P.
She also confirmed that she was content with Mr Monds’ sister, Ms B, being a facilitator.
Accepting Ms Mullan’s high level of angst is one thing. It is quite another to accept, which I do not, the astonishing level of obduracy which she brought to every proposal canvassed with her during the trial to facilitate and enlarge, even by very modest degrees, the girls’ time with their Father. Certainly, as I indicated to both Counsel, in relation to her capacity to facilitate and promote the girls’ relationship in accordance with s.60CC(3)(c) of the Act, although acknowledged in theory, I have the greatest reservations about its actual implementation, as a practical matter, short- and long-term. This is deeply regrettable for the girls’ sake as well as for the parents’ sake. Without significant professional help to deal with her fears – real and confected – and other past relationship anxieties, the risks for Ms Mullan, and in turn the children’s relationship with their Father, (I fear) are significant.[43]
[43] In a number of places in her oral evidence Ms Mullan confirmed that for some time after the quite short relationship with Mr Monds ended she still loved him. See, for example, Transcript (17th June 2008) p.97. However, it would be far too speculative to consider, let alone arrive at any conclusion, that some level of Ms Mullan’s angst lay in the understandable grief (and sometimes hostility) that attends broken relationships between persons who still harbour emotional and other attachment for the other party to the relationship.
As indicated previously, Ms Mullan’s anguish is not about whether the children should spend time with their Father but the frequency, duration and location in which it occurs. Later she said that the most difficult thing was “the communication.”[44] In short, regarding the “time spent” issue, Ms Mullan indicated that Mr Monds’ proposal – indeed, it would seem, any proposal – was `too much, too soon.’ I will, of course, re-visit the proposals and the various contentions in relation to them after I consider the important evidence of the Family Consultant, to which I now turn.
[44] Transcript (2nd October 2008) p.18. Ms Mullan also confirmed that she would be very much comforted by knowing the there would be a review of arrangements and the situation more generally – something that was recommended by Ms Blanch – sometime in the not too distant future. See Transcript (2nd October 2008) p.19. It might also be observed in this regard that the sooner Ms Mullan settles down, the sooner the girls will settle down. Ms Mullan confirmed that she had commenced some counselling. Transcript (2nd October 2008) p.18. This is certainly to be encouraged.
Evidence of Family Consultant
Ms Blanch’s evidence came in two forms: her detailed Family Report, dated 22nd May 2008, and her oral evidence (via video-link), which was given on 2nd October 2008.[45]
[45] I have noted previously that the Family Report became Exhibit “F” in the proceedings.
Not surprisingly, Ms Blanch noted – in her Report and in her oral evidence - the high level of discord in the relationship and the consequent communication difficulties experienced by the parties. That said, there was some movement on the communication front.
For example, in her Report (par.10), Ms Blanch described it as “non-existent.” Yet, during the hearing on the final day (2nd October), the parties agreed (in part in accordance with Ms Blanch’s previous recommendations) on communication arrangements regarding (a) telephone contact between the girls and Mr Monds, (b) the use of a communications book, and (c) communication between the parties to be conducted via email and, in cases of emergency, via text message.[46]
[46] Transcript (2nd October 2008) p.18.
Ms Blanch’s consideration of increased time between the girls and
Mr Monds was, quite properly so, predicated upon how the relationship between them progresses and how the gradual increase in time proceeds from the perspectives of all sides. In this regard she advised that there be a further review to assess how matters have been progressing.[47] There will be such an order.
[47] See Family Report, par.32, and Transcript (2nd October 2008) pp.9-10 & 12.
As Ms Blanch said, the key to progress is “gentle progression.”[48] Given that “gentle progression”, like beauty, is often in the eye of the beholder, something neither too far distant, nor too rushed, but something “just right,” needs to be determined. Clearly, there has to be sufficient time for arrangements to be gradually implemented, then allowed to work out (including any `teething problems’) before moving to the next step, all the while ever-mindful that, as the children are adjusting, so too are the parents attending to counselling and post-separation parenting courses (also recommended by Ms Blanch) to assist in their adjustment to changes and with their respective personal issues.
[48] Transcript (2nd October 2008) p.8.
In addition to all of the above, there remains the very significant practical reality that the parties live a substantial distance apart – approximately 278 kilometres. To date, the genuine tyranny and burden of the physical distance between the parties has been borne by
Mr Monds. He has done, and continues to do, all the driving between Sydney and Bateman’s Bay. In time, that burden will need to be shared to some degree.
The final matter that should be noted from Ms Blanch’s evidence concerns equal shared parental responsibility. Again most properly,
Ms Blanch observed that such a situation is “usually desirable.”
She continued: “… I think it is all the more important that he [Mr Monds] be kept informed about them [the children] because that would assist him in sustaining his relationship with them between visits and meeting their needs when they are with him during visits. So, on balance, it would be helpful but … it also depends on the concerns about the parents’ capacity to relate.”[49] It is time to consider `the prescribed legislative pathway’ as it has been gilded and polished by the Full Court in Goode v Goode and Keach & Keach.[50]
[49] Transcript (2nd October 2008) p.6.
[50] (2007) 36 Fam LR 422 and (2007) FLC ¶93-353.
Jurisprudential Considerations
From what has been said already, it is clear that the number of issues to be formally determined is very narrow. It also means that the range of matters to be considered in any detail, according to the prescriptions of Part VII of the Act, is also of more limited scope than would usually be the case.
In Mazorski v Albright, Brown J neatly outlined the legal objects of the Act thus:[51]
The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[51] (2008) 37 Fam LR 518 at pp.519-529 [3] – [6].
In relation to the presumption in s.61DA regarding equal shared parental responsibility, in my view there is sufficient disorder still in the parental relationship that, for a period of time at least, it would not be in the girls’ best interests for such an order to be made.[52] However, two comments should be noted. First, an order for sole parental responsibility in favour of Ms Mullan brings with it a responsibility on her to inform and communicate regularly with Mr Monds about major, long-term issues involving their children. Her past practice of non-consultation and sole decision-making must end.
[52] See s.61DA(4) of the Act.
Secondly, given the objects of the legislation, which include
co-operative parenting, and assuming that there is genuine progress on the part of all involved in and affected by these proceedings, subject to recommendations in the review by Ms Blanch, I would be more likely than not to order that there be equal shared responsibility between
Ms Mullan and Mr Monds when next we meet.
An order for sole parental responsibility obviates any formal consideration of s.65DAA. Additionally, that section would have no substantive operation because of the genuine impracticality of the children spending equal time or substantial and significant time with their Father, other than – eventually – during school holidays.
Although Ms Mullan raised allegations of violence against Mr Monds, apart from the 2003 matter in which she was directly implicated, and notwithstanding that she said that she had evidence in various notes and other places, there was no evidence before the Court that could reasonably substantiate these allegations. Accordingly, there can be no finding of risk of the children spending time with their Father. Moreover, Ms Mullan’s own orders do not seek protection from him (so to speak). Rather, they provide that he spend increasing time with the girls. It is therefore illogical to speak about fears of someone and in the same breath to provide for a regime of increased time that that person spend with his children.
The only so-called “risk” in these proceedings relates to the schedule of time over which Mr Monds’ time with his children occurs and the circumstances in which that takes place. The correlative risk is
Ms Mullan’s capacity to promote and facilitate the girls’ relationship with their Father.
As has been stated on more than one occasion:[53]
Australian family law is unashamedly pro-contact. Consequently, this court will bend over backwards to establish or preserve a worthwhile relationship with the poorest of parents provided adequate protective measures can be put in place to prevent any relevant risks. This approach is based on the assumption that a father is much more than the worst thing he has ever done.
The starting point when contact is in issue is that there is a benefit for children in having a meaningful relationship with both of their parents and that for most children, contact with a non-resident parent is important to their welfare and development in both the short and long term.
[53] W v G (No 2) (2006) 35 Fam LR 439 at pp.445 [45] & 456 [48] (Carmody J). See also the comments of Carmody J in W v G (No 1) (2006) 35 Fam LR 417 at p.428 [92]: “In the eyes of the law the parent who has less time with the child is no less important in his or her life.”
Statements such as these have added force, in my view, in the light of the 2006 changes to the Act in relation to parental responsibility.
In terms of the “additional considerations” set out in s.60CC(3)(c), the following comments may be made.[54]
[54] I will refer only to those sub-paragraphs that have direct application to the facts in this matter. Unless otherwise required, I do not formally cite each of the sub-paragraphs of the “additional considerations.” I follow them sequentially.
First, the children are of an age and maturity whereby the Court can give little weight to any views expressed. Invariably their views will be heavily coloured by the often febrile perceptions, comments and reactions of their Mother.[55] That said, it is important for the Court to have the irenic, experienced and rather more dispassionate views of the Family Consultant now, and in the future, in relation to her observations of the children and their relationship with both parents.
[55]Secondly, clearly the girls have a very close relationship with their Mother, and a developing one with their Father. The latter needs to be nurtured delicately but purposefully.
I will not, and need not, rehearse the range of arguments and observations that relate to the willingness and abilities of each parent to promote the children’s relationship with the other parent. In this respect, because Mr Monds has had very limited opportunity to exercise his capacities in this regard, and because the girls are already utterly bonded if not completely dependent upon their Mother, from what has been said, the ball is now in Ms Mullan’s court as to how she will, over time and with professional assistance, encourage and cultivate the girls’ relationship with their Father.[56]
[56] The brief discussion here, and all that has preceded it in these reasons, not only is intended to embrace the matters comprehended by s.60CC(3)(c), but also those set out in sub-paragraph (i), and s.60CC(4) & (4A).
Regarding issues surrounding the girls’ separation from their Mother, as already indicated, with appropriate preparation and with appropriate sensitivity (on the part of all), with the appropriate emphasis on “gentle progression”, and with appropriate monitoring, provided both parties continue to focus prudently on the best interests of the girls rather than dwelling on hurts, grievances and losses of the past, I am almost confident that the girls will adapt over time to gradual changes to their routines, notably in holiday times.
I have already noted, and it will be readily apparent, that up to this point, and for some little time to come, the overwhelming bulk of the difficulty and expense associated with re-establishing his relationship with the girls has been borne by Mr Monds. In large measure this is a function of the geographical distance between the parents. Over time, some re-balancing of this must, and will, occur.
There was no issue about the capacity of Ms Mullan being able to provide for the girls’ needs. There must, however, be some question mark over Ms Mullan’s care of the children in the sense that if she remains so utterly protective of them, in some respects almost claustrophobically so, there could be a risk that she will stunt their development in a range of areas. Who is dependent on who might seriously become a question. Only time will tell.
Mr Monds pays child support. His capacity to provide for the various needs of the children otherwise has been, thus far, unable to be tested. That too is something else for the future.
It is sufficient to note (again) that these are quite young children.
I have also previously remarked, for the purposes of s.60CC(3)(j) & (k), on the 2003 “incident” in which both parties were directly involved. In my view, it is the only incident of any relevance to these proceedings, albeit very marginal because it is a significant time ago. Having already canvassed it, I do not propose saying anything more about it, nor on the formal finding that, on the evidence made available to the Court, there is nothing to indicate that there is any physical or other risk to the children about them spending time with their Father. This is especially the case when, as is most likely, this will occur with his partner and or their Aunt Ms B almost invariably present. And, as previously noted, Ms Mullan’s own orders propose a graduated regime by which the girls spend time with their Father. Put another way, she does not formally oppose them spending time with him. If she did she would most certainly, and very pointedly, have said so and framed her orders sought accordingly.[57]
[57] For the sake of completeness, the orders I make are, in my view, those that are least likely to lead to the institution of further proceedings.
Conclusion
In addition to what has already been said, a few judicial pronouncements from earlier decisions are in order to conclude these reasons. In my view, they speak for themselves and are directly applicable to the current proceedings, notably for both parents to recognise what is required of them in their dealings with each other and in making the appropriate arrangements for the girls to spend time with their Father.
In Mazorski v Albright, Brown J discussed what was comprehended by the legislative reference to, and requirement that, children have a “meaningful relationship” with their parents, and that those parents have a “meaningful involvement” in the lives of their children. After a consideration of various dictionary definitions and meanings, her Honour said:[58]
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
[58] (2007) 37 Fam LR 518 at pp.526-527 [26]. These observations have been repeated by the Full Court of the Family Court in Moose & Moose [2008] FLC ¶93-375 at [67] – [69].
In Oakley and Anor & Read, Moore J said:[59] “Obviously there are many ways of sustaining a meaningful relationship but there can be no doubting the importance of spending time together in a mix of settings where experiences can be shared and bonds developed.”[60]
[59] [2007] FamCA 1520 at [74].
[60] See here Kay J’s description, in the context of a relocation case, of relationships between parents and children being “meaningful” rather than “optimal.” Godfrey v Sanders (2007) 208 FLR 287 at p.298 [36]. His Honour’s discussion is thoroughly critiqued (and found wanting) by Chisholm, “The meaning of `meaningful’ …” op. cit., pp.193-194.
In G & C, Bennett J concluded that “… the court must evaluate the nature and quality of the relationship to establish whether any “benefit” or meaningful relationship exists.”[61] As previously indicated, this will occur through the good services of Ms Blanch and her review of the situation later in the year.
[61] [2006] FamCA 994 at [68] & [72].
The final judicial word goes to Cronin J in D & T. His Honour’s observations certainly and plainly speak for themselves. Respectfully, I agree with them. In my view, they reflect and complement the earlier discussion in these reasons relating to “virtue” and the responsibilities of parenthood. Cronin J said:[62]
To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship. The responsibilities of parents are to give the children a chance to be part of a family albeit in two households where they can have a feeling of being wanted and appreciated.
Where there is a tyranny of distance, there is no logical reason why those same philosophical values cannot be imparted perhaps not to the optimum level but certainly in an advantageous way for the children.
[62] [2007] FamCA 1383 at [170] – [171].
In the light of (a) these important judicial observations, including those cited earlier by Carmody J in W v G (No. 2), (b) the clear legislative requirements, about the importance of children having a meaningful relationship with both parents, and those parents having a meaningful involvement in the lives of their children `to the maximum extent consistent with the best interests of the children,’ (c) the clear evidence before the Court, and (d) the fact that there will be a review of all relevant relationships involved in this matter by the Family Consultant, Ms Blanch, later in the year the application by Mr Monds must succeed, and largely in accordance with the orders that he sought, as amended in the course of the proceedings.
It is time for courage and generosity on the part of these parents to come to the fore. Such is in the best interests of their daughters. It would also be in their best interests too.
Formally I make orders as set out at the commencement of these reasons.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: Renee Davidson
Date: 30 January 2009
In the course of her cross-examination Ms Mullan confirmed that she had been speaking about
Mr Monds on the telephone in the course of which she referred to him as a “liar.” One of the girls heard and called her Father by this same description some time later. See Transcript (17th June 2008) p.82.
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