Meet the unhappiest of families

Justice Graham Mullane "Whether they go with mum or dad it can be equally awful."

December 20, 2008

Graham Mullane spent 22 years on the Family Court bench, and got to see the worst of it. He speaks to Adele Horin.

A cast of characters was fighting in the Family Court over the fate of three children: two fathers, the maternal grandmother, and the maternal grandfather and his new partner.

They all had their claim. The children's mother, a haphazard carer at best, had dragged the children between three states and several men, and had left them for long periods in the homes of their estranged grandparents. But the mother's itinerant life caught up with her; she died in an accident.

The father of the youngest child did not know his son. The father of the older two had been peripherally involved. Now that the mother was gone, the men wanted their children, and so did each of the grandparents. Someone had to resolve the mess. And that someone was the Family Court judge Graham Mullane.

Mullane has had plenty of time to reflect on Leo Tolstoy's observation that "happy families are all alike; every unhappy family is unhappy in its own way". Recently retired after 22 years on the Family Court bench, he has seen every possible permutation of family misery. In what surely counts as one of the most difficult jobs in Australia, Family Court judges hear the 1 per cent of intractable cases, where separating couples are immune to mediation from Family Relationship Centres, counsellors, and court staff. Most parents come to an agreement somewhere along the mediation chain on where children will live, and how much time parents will spend with them.

But warring parents who need a judge to settle the impasse are often textbook cases of dysfunction and disaster, whose children are already traumatised.

Over two decades a parade of parents who are drug addicts, petty criminals, and abusive or neglectful of their children have argued their cases before Mullane. One or other parent may have suffered mental illness. In many cases, both protagonists have been inadequate parents. "In their own way they love their kids," Mullane said in a recent interview. "They are tearful when they talk about them despite the fact they've never done much good for them."

To provide a window on the Family Court, Mullane gave me several of his judgments to read with names erased, and these vivid accounts of disturbed family life, complete with psychologists' reports, tell a desperately sad story about the plight of some of Australia's children - and the exquisite dilemmas Family Court judges face.

"Usually it comes down to choosing what is the least dangerous of two poor options," Mullane says. "You don't often get good results for the kids. I have seen kids who don't stand a chance."

For Family Court judges, the cases are more complex and heart-breaking than ever, requiring the wisdom of Solomon and the stomach of Rocky. Since the Federal Magistrates Court was established in late 1999, taking over the more straightforward work, Family Court judges have been fed from a steady menu of calamity.

By the end of his time, Mullane was seeing more cases involving parental mental illness and drug use, more allegations of violence, more DNA testing, and more relocation cases. The internet has fostered international cyber romances, leading parents to believe they can spirit their children to a new country and a new step-parent. "They think the court will just acquiesce," says Mullane.

Since the Howard government changed the Family Law Act in 2006, public debate has revolved around fathers' rights, a new emphasis on shared parental responsibility, and on equal time with both parents.

But couples who end up before a judge are usually beyond the possibility of sharing anything, so deep is their hatred and distrust. That has not stopped fathers arguing for equal time, even though they lack a reasonable relationship with both the children and the mother, Mullane says.

Frequently judges are asked to decide if a parent should be able to see a child at all, or under supervision; or whether both parents are so inadequate that the children should be put into the care of a relative. Increasingly, grandparents are parties to the dispute.

Typical of the sad and complex cases that came before Mullane is that of the three children of the deceased mother. Janet, 8, Anabel, 7, and Daniel, 3, had never known stability when their young mother was alive, the judge was told. She had suffered postnatal depression and had been violent towards the father. He had left when Janet was two.

After the break-up, the children's mother moved interstate to be with her mother. She began taking amphetamines, and embarked on a nomadic life, driving back and forth between states, taking her children to live in caravan parks, or with a new partner, or sometimes leaving them for weeks or months with their grandmother in one state, or their grandfather and his partner in another. The children were "almost certainly exposed to significant domestic violence and substance abuse", the court was told.

The mother fell pregnant with Daniel to a man who lived in a third state but she left him after a few months. The older children's father kept in touch with his children when they lived with the grandmother, and travelled long distances to visit them a couple of times a year. But the mother would not let the younger boy's father see his child.

After the mother's death, Mullane had to examine the parenting capacities of all the disputing parties. A dispiriting picture emerged. The maternal grandfather and his partner, according to court reports, lived in a filthy dwelling on a property littered with rubbish, with an unfenced dam, and fierce dogs. The grandfather was illiterate, had been found guilty of minor drug offences, was a heavy drinker, and had bashed his former wife. His partner, also a heavy drinker, had previously lost the care of her own children. They lived on unemployment and disability benefits.

When the judge turned to examine the capacities of Daniel's father, it was more bad news. He emerged from court reports as an antisocial man who had turned to heroin, like his mother before him. Later he went on methadone. He had severe anxiety attacks and was abusive to his partner. Their baby had been temporarily taken into care. Under pressure in the witness box, the father threw a jug of water.

The father of the two older children was described in a social worker's early report as demonstrating little insight into his children's needs and being less than honest. "He clearly has had little time in being the primary carer of his children," the report said.

He seemed overwhelmed by the task, and the children were unruly. He also used marijuana. Months later, a second report noted a big improvement in his parenting "from a low base" and in his commitment to the children. Not surprisingly, Anabel had major behavioural problems, and Janet was on medication for ADHD, but the father was now involved in their schooling and medical care.

As for the maternal grandmother, she had endured a traumatic childhood with a mentally ill mother, and a relative who sexually abused her. She left home at 15 and had a baby two years later, and had a long history of depression, panic attacks and overdoses of medication. But in the previous five years she had achieved some emotional stability and was the main carer of the younger child, Daniel, for much of his life.

Such were the choices confronting Mullane, and in the end the "least worst options" were clear enough. The child's best interest is always a Family Court judge's paramount consideration. And the judge must consider the benefit to the child of having "a meaningful relationship with both parents", and the need to protect the child from harm or family violence.

With this in mind, he ruled that Daniel would live with the maternal grandmother. The benefit of his having a meaningful relationship with his father was qualified because of his drug use, antisocial and abusive behaviour and mental health problems. The father lived at a long distance, and faced financial difficulties in seeing his son. But he was allowed day contact only with him on five successive days a calendar month to try to establish a relationship.

The two older children would live with their father. Intricate orders were made to ensure the three siblings saw each other frequently, and that the older two saw their grandmother regularly. The grandmother was restrained by court order from moving too far from the older children. The children's contact with the maternal grandfather and his partner was limited to 10 weekends a year in order to minimise their exposure to "incompetent care, alcohol abuse, and abusive behaviour". And orders were made for various people to take parenting courses, and to not drink or take drugs when in charge of the children.

Mullane said if politicians understood what Family Court judges faced every day, "they might be less willing to embrace the complaints unhappy litigants bring to them". He said he lost sleep over his decisions during his first 10 years on the bench. He also received death threats, including from a man found with rifles, telescopic sights, and 16 sticks of gelignite. But in more recent years he had been less fearful of individual mistakes and more overwhelmed by the dysfunction in many families. "Whether they go with mum or dad, it often doesn't matter," he said. "It can be equally awful."

Names and some identifying details have been changed to comply with legislative restrictions.