Jenkins and Lowe

[2012] FamCA 437

FAMILY COURT OF AUSTRALIA

JENKINS & LOWE [2012] FamCA 437

FAMILY LAW – PROPERTY - Defended property proceedings – De facto relationship – Existence of that relationship for the court to exercise jurisdiction – Application for psychiatric examination of the respondent – Possible delay – No splitting of trials – Alleged parent alienation syndrome of adult child said to be relevant to property proceedings – Matters in dispute – Application rejected and defended trial remains listed

Family Law Act 1975 (Cth)

APPLICANT: Ms Jenkins

RESPONDENT: Mr Lowe

FILE NUMBER: MLC 3107 of 2011

DATE DELIVERED: 4 June 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 4 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Davis

SOLICITOR FOR THE APPLICANT: Mark Morgan

COUNSEL FOR THE RESPONDENT: Mr Mellas

SOLICITOR FOR THE RESPONDENT: Aitken Partners

Orders

IT IS ORDERED:

1. THAT the application in a case filed with the leave of the Court this day on behalf of Mr Lowe be dismissed.

2. THAT leave be granted to the solicitors for Mr Lowe to have filed his affidavit and the supporting affidavit of his solicitor to that application in a case.

3. THAT the date provided for in paragraph 12 of the Orders pronounced 19 April 2012 be amended to now provide for the filing date to be on or before 12.00 noon Tuesday 26 June 2012 in lieu of the following day.

4. THAT the parties, assisted by such legal representatives as they chose to engage, attend a Financial Conciliation Conference before Registrar Marrone at 9.15 a.m. on Wednesday 27 June 2012 and make a bona fide endeavour to resolve all financial and other issues in dispute between them, inclusive of the application for adult child maintenance.

5. THAT the solicitors for the parties obtain full and proper instructions and exchange between themselves a without prejudice letter of offer to resolve all property, adult child maintenance and related financial proceedings.

6. THAT any costs of and incidental to the Financial Conciliation Conference are reserved to the trial Judge and may be the subject of evidence and submissions in the hearing.

7. THAT the matter remains listed for a defended hearing commencing Monday 2 July 2012.

8. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

9. THAT the respondent, Mr Lowe, pay to the applicant’s solicitors, Ms Jenkins, a sum of $1,500 as costs of and incidental to the hearing this day and my Orders pronounced and I stay the payment of that sum for thirty (30) days.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the applicant and respondent.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jenkins & Lowe has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3107 of 2011

Ms Jenkins

Applicant

And

Mr Lowe

Respondent

REASONS FOR JUDGMENT

1. I have listed the matter of Jenkins & Lowe before me today to further hear of the progress of the case towards a defended hearing and to fine tune any listing matters that may be outstanding.  When the matter was last before me on 19 April of this year I made substantial orders for the filing of amended applications, the valuation of property, the discovery of documents and a timetable for the filing of the affidavits for trial.  I have taken the opportunity today to emphasise to both counsel and to their clients who are in court that it is the trial affidavit that I will very carefully read and which will form the basis of evidence in this matter.  Additionally, of course, there are the further affidavits of witnesses.

2. I will not enter into this trial with a reading of all earlier and perhaps somewhat out of date financial and contribution material.  I will exclusively rely upon the affidavits that are to be filed pursuant to the 19 April orders and the viva voce evidence and cross-examination of the parties and their witnesses.  Thus the importance of well prepared detailed and accurate affidavits must be a priority.  I had noted to those 19 April orders that there was some level of contest as to the defended hearing date but the matter is fixed for a hearing commencing on Monday 2 July and at this stage that listing remains extant and I have no other date to offer the parties.

3. In that notation I did record the argument that had been presented to the Court about future medical evidence and expert witnesses and that is a matter the subject of which was put before the court in a further application which, by leave and without objection, I allowed to be filed this day.  All valuations are now complete.  A single expert has valued the three properties which are to be the subject of evidence.  The parties are now able to prepare a balance sheet of their assets and liabilities or that which they assert should be brought to account particularly in that regard.  Mr Davis of Counsel appearing for the wife has foreshadowed that her father will give evidence and attach various corporate and trust documents to his affidavit.

4. I have already made an order that all financial statements for that trust of and associated with the Town B property are to be disclosed for the past five financial years.  Seemingly there is an issue as to whether or not such financial statements and tax returns are or have been prepared but I emphasise and both counsel can well and truly communicate to solicitors that any and all documentation of and related to the Town B property must be disclosed and by that I do not in any way prejudge any issue and all arguments are open to be presented to the court.

5. Mr Mellas of Counsel on behalf of his client has filed with the leave of the court an application today.  That application seeks an order that Dr M or such other psychiatrist as may be appointed forthwith be engaged to undertake a psychiatric assessment of the applicant, that is, Ms Jenkins and to prepare a report as to whether there is any proven indicators of a psychiatric or personality disorder or syndrome and if so, whether that is to have any influence upon her relationship with the biological child of the father.  That is, the child J who is now 19 years of age and undertaking a course at university.

6. Mr Lowe proposed that Ms Jenkins pay all costs of and associated with that report and that the appointed psychiatrist have access to all relevant doctors and experts who have treated Ms Jenkins in past years, or whenever, presumably all at her expense.  In support of that application an affidavit was filed both by Mr Lowe and by his solicitor.  I have read each of those affidavits.  I understand that Dr M is unavailable within the time frame of the defended listing in the first week of July this year and otherwise it is proposed that either Mr L, or Dr W, could, with a modest degree of work and organisation confer with Ms Jenkins and/or others and prepare a report available to the court by 2 July.

7. I have otherwise read the affidavit of Mr Lowe and his reliance upon the interim report delivered by Dr M and identified in paragraph 8 of his affidavit, that is, identifying such a potential syndrome as may be allegedly relevant to the facts in this case.  The issue before this court is ultimately a division of property pursuant to the provisions of Part VIIIAB of the Family Law Act 1975.  That is, in circumstances where it is shown that there is a de facto relationship as between the parties.  That de facto relationship is a matter of factual dispute and will be determined on the evidence. 

8. If the alteration of property proceedings proceeds in this court then the court must have regard to contribution matters under section 90SN(4) of the Act and in that regard subparagraph (c) thereof identifies contributions of that de facto relationship made in the capacity of homemaker or parent.

9. It is asserted by Mr Lowe that very much Ms Jenkins will focus upon her alleged homemaker and parent contribution in developing and extending her claim for a division of assets.  It is said that there are psychiatric or other reasons or the existence of this alienation syndrome that may well be important to understanding the behaviour, indeed what might be argued to be the exaggerated parental behaviour of Ms Jenkins in this regard.  Mr Davis on behalf of his client has opposed the orders sought in the Form 2 application.  He has identified a number of reasons for that opposition which include relevance and further include the almost certain involvement of the adult child J in any further consultation and follow up report and the wider investigation that might be needed to accurately identify any alleged parental alienation or like syndrome and then the difficult task of asserting its relevance to a financial determination under the Act.  They are all matters that I have considered.

10. Likewise it is important to give due weight to Mr Mellas’ submissions on behalf of his client that to do justice to both parties in this case that report should be available and cross-examination should proceed upon the basis of that document and its identification, if indeed that is the case, that such an alienation circumstance does exist and is an accepted medical scenario.  Again, I make none of the findings at this stage but I do note that if Dr M has already tentatively indicated the possibility of such syndrome being identified then it will be likely argued that he then cannot prepare the report and it will be left to others who have not made that assertion. 

11. Ultimately I am not going to allow the application.  I do so in the knowledge that there can be full and complete cross-examination on all matters that I regard as relevant and proper.  That includes therefore a cross-examination of Ms Jenkins on her role with J within and without the relationship and ongoing in future years.  All of that of course is dependent upon the matter proceeding on the basis of the established relationship.

12. I pause to reflect that I am not splitting trials.  I am not having a trial on the relationship existence and then at some future date another trial at greater expense to the parties on the division of assets.  The case has been prepared on that basis and both counsel and solicitors and more particularly the clients have understood that matter for some time. 

13. I would be concerned that if I allowed the report there would become a timetable issue.  First, the appropriate expert must be engaged.  There must then be a level of consultation with Ms Jenkins.  Likely there is merit in Mr Davis’ submission that the issue really could not be determined without an interview with other relevant adults and that identifies J as the most likely adult then to be involved and for it to be ascertained whether he is or is not the subject of any special treatment or comfortable position with Ms Jenkins in the emotional context and of course with all of the investigation of conflicts with his biological father and/or biological mother and how those issues have developed, been sustained, been continued and are projected into the future.

14. My understanding of the court’s discretion and the assessment that it must make of contribution issues under section 90SN(4) of the Act are that these matters do fall to a court to be determined.  They are one of the many factors in the division of assets, and it is something that, if and when appropriate and in circumstances that are proper, I will hear that evidence and make determinations.  Aside, then, from my concern that granting the application would lead to an adjournment, and realistically, the matter being heard if not later this year then into next year, and then having valuations updated and other further expenses, I conclude it is proper for the Court to hear the matter at the appointed date and time.

15. In any event, I would most certainly have not ordered Ms Jenkins to pay costs, and it is a very, very optimistic application to be drawn on the basis that she pay the costs to prepare a report so that the respondent, Mr Lowe, can use that report in evidence.  That in itself is not the determining factor why I reject the application; it is more based on the obligation of the Court to hear the matter, the duty of the Court to determine matters and facts, and the timetable of hearing.

16. However, there is a caveat, and that is clearly that if, upon hearing the matter and listening to the personalities and the conflictual family evidence insofar as it is relevant to a property division and not to children’s matters, if at the end of the day I form the view that such a report may be of assistance to the Court, then I always have the option of adjourning the proceedings part-heard for whatever time and having that report obtained.  I do not likely focus upon that issue, but as a fall-back scenario, both parties must understand that the Court has that option, to have all evidence before it in such manner as its thinks appropriate.  And whilst I cannot imagine the circumstance of how or where I would, I record that in these ex tempore reasons for judgment given without leaving the bench.

17. Under the timetable that I have already provided, all affidavits, witness affidavits, financial statements are to be filed or served by 21 June of this year.  Thereafter, by 27 June, the parties are to comply with order 12.  That is a priority, and both solicitors are formally on notice; that is their responsibility.  I particularly emphasise subparagraph (c), that there is to be a statement of the orders sought particularising the detail – in detail the claim for the property division.

18. I take this opportunity to record that because I am certainly not comfortable with the current intended provision of Ms Jenkins seeking other adjustments of property as the Court deems appropriate.  If that relates to personal chattels and wine, then it should be designated; if it relates to any other lump sum payment of money, now that all valuations are obtained, it must be clearly expanded upon.  If and when I come to hear this case, at the outset, the first question I will ask of counsel is, what are the specific financial division of property orders sought, and I will not accept any generalisation.

19. I am going to order a mediation within this Court by Registrar Marrone on 27 June at 9.15 a.m.  Conveniently, all documents have to be filed before that date, or I will make it perfectly clear by an amendment to order 12 that they are to be filed by 26 June so as to facilitate that day.  I intend to add two further orders:  the first is that I will adopt Mr Davis’ helpful suggestion that the parties are to exchange between solicitors and without prejudice, letter of offer on or before 12 noon on 26 June.  That offer is not to be filed with the Court;  it is to be exchanged between solicitors, and the subject of confidential negotiations with Registrar Marrone.  I repeat, it is not to be disclosed to the Court, meaning myself as the presiding judge.

20. Otherwise, I will reserve the costs of mediation to the trial before me so that if there has to be any order for costs, which would be an unusual circumstance, both parties have the right to file material in the trial.  Finally, I highlight that it is intended that the child, now the adult, J, may give evidence.  He has already filed an affidavit, but I will not have regard to that affidavit.  It is up to the legal advisors for Ms Jenkins as to whether he does or does not give evidence, and I have no comment upon that fact.  It may be necessary, given that he seeks under section 66L an adult child maintenance order, or at least that is sought on his behalf by Ms Jenkins.  His circumstances thus may be of importance in determining that matter.  I require the letter of offer to respond to the 66L position in some way.

21. Again, I do not dictate that it be any particular dollar amount.  It may be that it is rejected, but the discussions must involve adult child maintenance as between the parties.  Otherwise, I can only urge some level of commonsense upon these parties; they must reflect on the costs of litigation, the risks of litigation.  They themselves know better than anyone else what occurred during their relationship, whether it was or was not a de facto established relationship, whether there has or has not been financial contributions made one way or the other, or whether any of the other factors are relevant.  There is already, I perceive, some level of tension and upset that will likely play itself out in Court and will of necessity involve J and all of the personal issues surrounding him and his extended families and others; they are matters that clearly should be avoided, but I leave that to others.

22. Whilst I do understand there is some controversy about the July date, at this stage that date has been fixed, orders have been made leading to that trial date, and I have no other realistic alternative other than a long-term adjournment, which probably, in the interests of the parties and, more particularly, in the interests of J, should not occur, and these matters should be heard and determined or some commonsense apply from these parties, if that is at all possible, and matters be discussed.  I will have these ex tempore reasons for judgment transcribed, placed upon the court file and made available to the parties.  I now pronounce the orders that I have resolved are appropriate.

I certify that the preceding Twenty-two
(22) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 4 June 2012

Associate: ……………………………………………………………

Date:  …………………………………………………………………