Ronaldson and Ronaldson and Ors

[2008] FamCA 749

FAMILY COURT OF AUSTRALIA

RONALDSON & RONALDSON AND ORS [2008] FamCA 749

FAMILY LAW – CHILDREN – Urgent parenting orders – father of four young children terminally ill – Consideration of appropriate time for children in the circumstances – less adversarial trial process.

Family Law Act 1975 (Cth)

APPLICANT: Mr Ronaldson

RESPONDENT: Ms Ronaldson

SECOND AND THIRD RESPONDENTS: Mr and Mrs Ronaldson (Snr)

FILE NUMBER: MLC 7963 of 2007

DATE DELIVERED: 1 SEPTEMBER 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 29 AUGUST 2008 & 1 SEPTEMBER 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT AND

SECOND AND THIRD RESPONDENTS:

MR HOULT

SOLICITOR FOR THE APPLICANT: MIDDLETONS

COUNSEL FOR THE RESPONDENT: MR DICKSON

SOLICITOR FOR THE RESPONDENT: PEARSONS

Orders

1. That the wife deliver the children R, S, M and O to the paternal grandmother alone, outside of the funeral service of the husband at a time to be agreed but no less than 15 minutes before the commencement of the funeral service.

2. That the paternal grandfather not be present with the paternal grandmother when she receives the children as set out in paragraph (1) hereof.

3. That the wife remain distant from the children during the funeral service and leave the service immediately upon its conclusion and certainly before the attendees at the service commence to go outside the building upon the conclusion and thereafter, remain away from the gathering outside of the funeral service.

4. That at 7.00pm on the night of the funeral service, the children be delivered to the mother at her home by the paternal grandmother alone.

5. That if agreement cannot be reached about what time is to be spent by the grandparents and the children subsequent to the funeral until further hearing, the matter be listed before me for mention on 15 October 2008 at 9.00am.

6. That save for the outstanding financial issue of an interim nature, all extant applications be otherwise adjourned to be resumed as a part-heard case at 10.00am on 13 January 2009.

7. That save for the said financial interim issue, all other interim applications are otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC7963 OF 2007

MR RONALDSON

Applicant

And

MS RONALDSON

Respondent

And

MR AND MRS RONALDSON (SNR)

Second and Third Respondents

REASONS FOR JUDGMENT

1. Because of the nature of the orders that were delivered this day, the parties needed some justification for the orders that I have made.  Much of this judgment is about the father.  At the time that I completed the judgment, I was not aware that the husband had died recently.  The reasons that follow may sound somewhat confusing but that is the reason why.  I have amended these reasons subsequent to handing the parties’ counsel a copy of what I had prepared but what follows is the unamended judgment.

2. This case involves four children caught in a conflict between their mother and their paternal grandparents as their father is about to die.

3. These are interim orders.  There are several things yet to be litigated and resolved including financial issues.

4. I have heard this case on two occasions now. The first was in a judicial duty list when, pressed for time and with limited evidence, I made orders about the children. The second occasion was as the first day of a less-adversarial trial last Friday afternoon. At that time, I reserved my judgment to consider the problem over the weekend. Now, Monday morning, I set out my reasons for the orders I am making.

5. There are four issues dealt with in these reasons. They are:

   a)first, what time should the four children spend with their father and his extended family in the short term until the father’s death;

   b)secondly, what time should the children spend with their paternal grandparents between the time of their father’s death and the funeral;

   c)thirdly, what time should be spent by the children involved in the funeral process; and

   d)fourthly, what happens to this case after the father’s death.

6. The father suffers from an aggressive form of brain tumour. The medical treatment has been extensive. He is gravely ill.

7. The parties’ counsel told me that in respect of what was described as “an emergency situation” which will arise just prior to the father’s passing, civility would occur and arrangements would be made for the children to be brought to their father’s bedside to possibly see his passing.

8. One thing which is sadly and abundantly clear in this case is that there is open hostility between the mother of the children and the paternal grandparents. Nothing I have heard or said would seem likely to reduce that conflict in the foreseeable future. The children are very much aware of the situation of conflict whilst they deal with the impending death of their father.

9. On last Friday afternoon, I dealt with the case in something of an unorthodox way but Division 12A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) not only permits that, it encourages it. The five principles for conducting hearings are set out in s 69ZN. It is a mandatory requirement that the principles be applied. Principle 5 requires a court to conduct proceedings with as little formality and legal technicality and form as possible.

10. Section 69ZP permits a court to exercise a power under the Division of its own motion. I have done that here. Importantly, pursuant to s 69ZR(1), I am making this determination as a limited issue arising out of the proceedings.

11. However, this is still a matter in which I am required to make a parenting order. As such, s 60CA requires that I must regard the best interests of the children as the paramount consideration. That section means what it says. The best interests are the paramount but not the only consideration. In a case where I am dealing with highly emotive issues including grief, I can and will take into account the feelings of the mother of the children and the grandparents. However, these are four vulnerable children whose interests are best suited by what I am about to do.

12. I take considerable comfort from the fact that in addition to hearing the parties and their counsel, I have also had evidence from two social scientists. The first was a Family Consultant Ms H who saw the mother and grandparents but not the children. Despite not having seen the children, Ms H sat through the evidence and made comments based on her observations. The second was Mr L who is by profession, a psychologist. He did see the children and spoke to each of them in different ways. He also observed and spoke to the adults. Mr L was candid in acknowledging that in respect of some of the issues I was grappling with, the social science research would not help me. As a consequence, he acknowledged that his views could be wrong but something had to be done in the immediate situation.

13. The four children are R, S, M and O. They are aged 8, 6, 5 and 3 years respectively.

14. The mother of the children is a 36 year old who is engaged in home duties. That is a position she has been in since redundancy as a marketing co-ordinator in 2007.

15. The father of the children is a 41 year old former teacher. He has the terminal illness I earlier referred to and it was not disputed that he has very little time left to live.

16. The father resides with his parents who care for him. He was seen by Mr L about four weeks ago and I accept that since then, his health has deteriorated dramatically. His capacity to communicate is now very limited.

17. As husband and wife, the parties lived together subsequent to their marriage in 1998 and separated in January 2007. The evidence on both sides says that there was unhappiness and conflict through a significant part of the marriage. The two families to whom I shall now refer are on the one side, the wife and on the other, the husband and his extended family.

18. The conflictual nature of the relationships between the two families arises from very disputed facts. Those conflicts include such things as allegations that the grandfather assaulted the mother in 2006 and that the grandparents and the father attempted to abduct the children when the mother was collecting them from school. The evidence shows allegations of assault against the father throughout the relationship itself and that the parties stayed together for the sake of their very young children. The mother sought access to an intervention order against the grandfather. That hearing is pending in the State Magistrates Court.

19. The mother is accused by the father’s side of removing sentimental items. He said in his affidavit that their relationship was such that he had to restrain the mother from cutting up the wedding album. There are assertions of abuse on each side. There are assertions by the father that the mother refused telephone communication between he and the children.

20. I cannot determine those matters in this truncated hearing. At a time when the husband was able to participate in the proceedings, he swore an affidavit in which he said that his parents had a warm and loving relationship with the children. In her affidavit in reply, the wife denied that. She pointed to threats, abuse, intimidation and assaults on her. There is no love lost here.

21. In the court room, it was little better. The mother who spoke confidently, told me that in relation to the report of Mr L, the psychologist had not really seen the true side of the other family because they were on their best behaviour.

22. The mother also told me that I should not consider the longer term position because there was no application by the grandparents. She said that this was a case about the father’s time with the children. That was largely unhelpful because of the very nature of the less adversarial procedures.

23. For his part, the paternal grandfather also did little to help the situation either by referring to mother as “the so called mother” and another stream of vitriolic evidence that might be true but it did little to enable me to focus on the issue so critical to my determination. The paternal grandmother was more measured and descriptive of what was happening in the household when the children were present. It had been pointed out to me by the Family Consultant that she thought the grandmother was more balanced and objective. That was evident.

24. There are two different family views about how the four children are coping with the deterioration of their father. The mother’s view is that the children are frightened and seeking and needing her constant attention. Sadly, the mother’s understanding of the exact reaction is only from what the children tell her. Whilst I might treat cautiously the mother’s interpretation and also what the children tell her, common sense dictates that at this troubled time, the children each have different levels of understanding about what is happening but they will be troubled and confused.

25. The mother has told the children about the permanence of their father’s death and seemed to think that two older children understood. Mr L saw no reason for me to doubt that.

26. Having said that, the children are very much aware of the conflict and that may very well be colouring a lot of not only the perception of the mother but also the children. I detected however in some of the mother’s evidence two things. The first was that she was also upset about her estranged husband’s impending death. Her choked answer to a question supported that. More importantly however, there is ample evidence of not only the attachment of the mother to the children but her very clear desire to protect them from what is a very disturbing emotional time.

27. In the father’s household, a very different picture was painted. The children were keen to be there and when a hospital bed was brought in for the father, the grandmother said that one of the children commented that he would be able to sleep with his father as had been the case in better times.

28. The objective evidence of the behaviour of these children told through the expert eyes of Mr L is as moving as it is compelling. However, that is but one part of the evidence upon which I have to determine the issues with which I commenced these reasons.

29. In relation to the respective positions of the parties, the mother said that the current arrangement should continue with the exception that the hours should be extended. In relation to the funeral, she said that she wanted to bring the children there and be supportive of them by waiting at the back of the service where she will clearly not be a welcomed guest.

30. The grandparents’ position was similar to that of Mr. L that the children should spend overnight at the house of the grandparents and weekday time as well.

31. Overnight and weekend time would enable the children to be a part of their father’s household albeit that the grandparents would be their carers. I have no doubt that the grandparents would be competent carers. The mother raises concerns about the children being upset during the night and wanting to be with her. The grandmother seems to dismiss that.

32. The grandparents’ view was that upon the death of the father, the children should go to them for the 24 hour period that included the funeral.

33. Ms H had little to contribute in respect of the short term position. She responded to my question about the absence of prospect of resolution. She could not think of any community based program to assist. It is to be remembered that I ordered the attendance of the adults for the purposes of seeing whether there could be some introspection. I am satisfied that there cannot be at least at the moment. Ms H’s concentration was therefore on the adults.

34. Mr L had a bigger task. He was involved with the children in 2007.

35. I ordered him back into the fray as a result of what I heard in July 2008.

36. He was limited to some extent in what he could obtain from the father because of the father’s deteriorating health however it was clear that the father wanted his family to have time with the children.

37. Mr L reported the mother as saying that the father’s family were aggressive, violent and repulsive and that she would not willingly send the children. Of concern to me was her statement that she would not be able to get the children to go overnight to stay with the grandparents. Mr L dismissed that. It is troubling that the mother’s lack of enthusiasm cannot make the implementation of any order, smooth for these children. This is a very short window of opportunity and must not be lost as it may have consequences for the long term welfare of these children.

38. Mr L complimented the mother on her approach to the father’s death saying that he respected how she had handled that with the children and her positive attitude to the on-going need for counselling for the children. Her monitoring of school problems was commendably evident from Mr L’s report.

39. Ms H made the observation that the mother is well placed to define, shape and influence the boys’ world. Ms H was pessimistic about any future positive relationship between the children and the grandparents because of that.

40. Mr L reported that R did not want to be involved in the report process. He was caught in the middle according to Mr L and his attitude this time was to steer clear of the conflict between the families. That statement has to also be balanced against the child’s current concerns about his father’s inability to communicate but my overwhelming sense on the evidence is that he wants to see his father within his own level of comfort.

41. S had no difficulty engaging with Mr L. He was responsive and assertive. He was very conscious of the conflict. He said that he wanted to see his father albeit that his father was ill. That combined with the statement of the grandmother suggests that within his own level of understanding, he wants his father to be a part of his life rather than just the other way around. I was impressed by how Mr L felt confident about S’s stance.

42. I must however balance that against two things. The first is that time has been on the march since the interview with Mr L and the capacity of this little boy to do anything other than speak to his father is restricted. I am very conscious that as a 6 year old, his attention span is limited as it must be; he is but a child. The second very strong issue is that the mother is the attachment figure for S. She is his only security blanket notwithstanding he has a great time playing with others including his grandparents at their home. He was just 4 when his parents separated and since then, his mother has been the primary figure in his life. How far he can venture away from that attachment is not clear on the evidence and even the accompaniment of his siblings does not necessarily satisfy me that he will be fine at a time when not only there is heightened conflict but also emotional adults endeavouring to deal with death. It is interesting that Mr L reported that S unlike R is ambivalent to the conflict. I consider that I should still be cautious with S.

43. M is 5 years old and O 3. They have no real understanding of the problem but wanted to align themselves with their brothers. In their case more so than the others, the attachment to their mother is strong.

44. The observation by Mr L of the children with the grandparents was equally clear in showing that there is a strong grandparent/grandchild relationship present. Mr L described that relationship as robust. The children were comfortable with their grandparents. They refer to them affectionately.

45. Mr L was keen to reduce the changeovers to in turn, reduce the conflict. I am not convinced on the evidence that it makes any difference whether there is one or more handovers. The poor relationship which has heightened to a warlike status will not abate and even if the parties do not see each other, there will be no change. That was evident from the family consultant’s evidence. That was also evident from the unsightly bursts of criticism in the courtroom. The disdain could not be put aside even to determine the limited issue.

46. This is a case where the conflict needs to stop completely but with the focus of the adults on the impending death of the father, all occasions of contact between the families will involve the children and I see no way of avoiding the children seeing it. Were it not for the evidence of Mr L and his reporting of what Dr J said, I would contemplate giving these children some respite from all of this conflict. The social science evidence is overwhelmingly replete with examples of how damaging it is to children. I have to balance that here against the interests of the children having a last opportunity to spend even the most fleeting of time with their father so that they might remember something of him. I also have to balance in the equation the fact that both parties offered proposals of time albeit significantly different ones and as such, the adults want the children involved.

47. What I must do here is work within the legislative framework. S 60CC(2) provides a very interesting contrast for these two families.

48. S 60CC(2)(a) requires a court in part of the exercise of determining what is best for the children to consider what benefit the children will receive from having a meaningful relationship with both parents. Leaving aside the relationship between mother and children, the importance of the children benefiting from a meaningful relationship with their father seems to me to be critical. It is a very limited time frame that the children have to endeavour to obtain some benefit from what is left of their father’s capacity. That has to be contrasted against s 60CC(2)(b) which requires the court to consider the protection of children from such things as abuse. The balancing here leans heavily towards the children getting some benefit from a relationship let alone a meaningful relationship with their father.

1. Mr L said that he saw “advantages” for the children in an arrangement under which they went no more than 2 days without seeing their father. Having regard to what I have just said, I agree that that is important.

2. Just what the nature of the relationship will be however is unclear to me. Mr L suggested that the children could be at their grandparents as part of that household and run in and out of their father’s life as and when they needed to and presumably according to their childish concentration span. Mr L was very strong in focussing on the reduction of changeovers for conflict but for the reasons I have set out, I reject that as an issue of importance at this late stage of the father’s life.

3. I do not attach an enormous amount of importance to the time that the children spend in the father’s household. The relationship with the grandparents is clearly evident and subject to what happens after the death of the father, that will not necessarily change. My very strong impression of the evidence of Mr L is that the time of the children at the grandparents’ house is playtime. Whilst the children could probably sleep at that house, I would only contemplate that if it was essential that I reduce the changeovers to avoid the conflict. I am not satisfied on anybody’s evidence that that will make any difference for the reasons I have set out.

4. Thus, the quantity of time is not of the essence, the quality is.

5. I do not wish it to be said that I am treating the grandparents or their role in the children’s lives with the disdain that the mother seems to do on the evidence. I very much feel for the grandparents who have to face an awful ending. However, my focus must be on the best interest of the children.

6. I have focussed on two issues about the overnight contact. The first is that although the children will be a part of the father’s household, the evidence is that they have short moments of time with their father. The second is that the mother says that they are troubled and Mr L supports the view that this is probably right. I see no reason to find that the children would benefit more from overnight stays at this time of the father’s life than they would from day time contact.

7. I have already dealt with s 60CC(2). S 60CC(3) is even more difficult to consider in this case because I have no capacity to make findings. I am deeply troubled that the conflict remains unabated at a time like this when my decision must be guided by the factors set out in the Act which require me to contemplate such things as parenting capacity and responsibility. They are matters about which I shall have to wait. In respect of the mother’s facilitation of the father’s time and relationship with the father which are matters I am required to consider by s 60CC(4), I am not convinced that she is proactive about the relationship with the grandparents but I have not heard anything of criticism about her desire for the children to benefit in some small way from the last days of their father’s life. I make no finding about that however.

8. This is not a case in which I could or should consider equal shared parental responsibility. It is about what is best in a small snapshot of the lives of these children.

9. Thus, even with the guidance of Mr L and Ms H, I am still of the view that the orders I made in July with some variation, can meet the needs of the children and are in their best interests.

10. It is also troubling that the funeral is an unresolved matter as well. This will be a time when the grandparents will be grieving as adults whilst the children will have to try to come to grips with the long term loss of their father. The funeral is for the living not the dead and as such, the children will be more of assistance to the grieving of the grandparents than the other way around. In my view, the children should be a part of that process because they represent the replacement of the joy and love lost in the death of their son. That is hard for any parent at any age to handle.

11. Apart from the mother’s evidence, I know little about how the children will cope with the death of the father. Mr L said that these children will have to grieve and no doubt each will have to do that in their own way. An integral part of that process will be their mother and I am comforted by the complimentary view taken by Mr L about the responsible attitude that the mother has taken on that issue. Mr L declined to accept the word “traumatic” for what it is that these children are going through. There can be little doubt it is at least difficult and confusing.

12. As such, the attendance of the children is of vital importance but more for the comfort of the grandparents. The mother should therefore deliver the children to the service and I stress only to the grandmother, outside of the service and then quietly move away to allow the grandparents to face their loss with dignity. The children will very much be a part of that. The grandmother should return the children at 7 pm that night to the mother. That period will enable the children to participate in the post funeral celebration of their father’s life but also have sufficient time that night to be able to talk to their mother about what must for them be a very confusing time.

13. As for these proceedings, I propose to simply adjourn them back to me for mention in October at which point if there is a stolid resistance to any form of grandparent/grandchild relationship, I will want to know why I should not follow the recommendations of Mr L about fostering that relationship on an ongoing basis into the future.

I certify that the preceding Sixty One (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  1 September 2008