Loddington and Derringford

[2008] FamCA 380

FAMILY COURT OF AUSTRALIA

LODDINGTON & DERRINGFORD [2008] FamCA 380

FAMILY LAW – INTERIM HEARING – varying final orders on interim bases – reluctance to change on strong but untested family consultant’s report.

Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-286

APPLICANT: MS LODDINGTON

RESPONDENT: MR DERRINGFORD

FILE NUMBER: AYC 390 of 2007

DATE DELIVERED: 30 May 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 27 MAY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS WHEELER

SOLICITOR FOR THE APPLICANT: LORETTA TERRILL FAMILY LAWYERS

COUNSEL FOR THE RESPONDENT: MR ALLEN

SOLICITOR FOR THE RESPONDENT: TOLHURST DRUCE & EMMERSON

Orders

1. That the mother’s oral application to vary existing parenting orders be dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: AYC 390  of 2007

MS LODDINGTON

Applicant

And

MR DERRINGFORD

Respondent

REASONS FOR JUDGMENT

1. M and E are twins born in June 2004. 

2. The parents are Mr Derringford and Ms Loddington.  They had a relationship for something like three months from October 2003 to December 2003. 

3. In December 2003, the mother found she was pregnant.  The parties remained together under the one roof but separated in May 2004.  Importantly, in the following month, the children were born prematurely.

4. It was only days after the birth of the children that the father and the mother had a disagreement.  When the children were less than two months old, the parenting litigation began in the Federal Magistrates Court of Australia.  Now, almost four years later, the parties are still in heated disagreement about what time should be spent with the children.

5. This specific judgment is about the interim period until I can determine the final disposition of the proceedings. 

6. On 9 August 2006, the parties sought and obtained final orders in the Federal Magistrates Court at Shepparton.  In summary, those orders provided for:

   ·Equal shared parental responsibility;

   ·That the children live with the mother;

   ·That the children spend time with the father until the end of 2006 for 56 hours per fortnight on specific days;

   ·That the children spend time with the father throughout 2007 for 80 hours per fortnight on specific days; and

   ·That the children spend time with the father from 1 January 2008 on a fortnightly basis as follows:

   (a)10.00am on Wednesday to 6.00pm on Thursday;

   (b)10.00am Friday to 6.00pm Sunday; and

   (c)10.00am Monday to 6.00pm Tuesday.

7. There are some ancillary times but in essence, in 2008, the father is to spend time with the children in part or whole of seven days each fortnight.  During those seven days, he spends four overnights. 

8. The mother says that on an interim basis, that is too much. 

9. On an interim basis, the father says it should be left alone until trial.

10. On 29 June 2007, the mother filed an application to vary the 2006 orders.  She sought:

    ·Sole parental responsibility;

    ·That the children live with her; and

    ·That the father spend time with the children each alternate Friday from 5.00pm until 5.00pm on the following Sunday as well as some holiday times.

11. On 5 October 2007, the father filed a response.  He sought:

    ·Equal shared parental responsibility;

    ·That the children spend equal time with their respective parents.

12. Relevantly, the father sought that the equal time be on an alternating three day basis until 31 December 2008 with some variation for special occasions. 

13. On 13 February 2008, I conducted the first day of a less adversarial trial.  The only material I then had to rely upon was the parties’ responses to the formal questionnaires.  However, I also had the benefit of a family consultant who heard what the parties said in the courtroom and who gave some brief evidence about her concerns.  Those concerns were primarily directed towards the arrangements that the children were undertaking.

14. I made the following orders:

    1.That all outstanding applications be adjourned to 11.00am on 2 May 2008.

    2.That pursuant to s 62G of the Family Law Act 1975 (Cth) the family consultant prepare a family report and for that purpose, each of the parties attend at the Registry of the Court in Melbourne at 11.00am on 31 March 2008.

    3.That each party file and serve any affidavit upon which they intend to rely by 4.00pm on 21 March 2008 addressing:

    (a)the communication problems between the parties and how each says that problem can be resolved; and

    (b)the current difficulties (if any) in relation to the current orders as they affect the children and how it is proposed that those issues be overcome.

    4.That the parties do all things possible to enrol and attend a POPS program.

15. Notwithstanding my orders, the mother was late in filing her affidavit.  She also filed an affidavit of her own mother.  The father filed his affidavit within time. 

16. The parties saw Ms W as the family consultant on 31 March 2008.  It seems on that day, Ms W did not have the material of either party. 

17. At the adjourned hearing on 27 May 2008, the parties were significantly apart on their respective proposals for what should happen in future.

18. The father argued that he would be denied procedural fairness if the Court did not hear evidence of an historical nature that in many ways may have affected what he says were some assumptions made by the family consultant.  The mother argued that she was ready to proceed with the material presented before the Court although it was conceded that more material could be filed. 

19. There was a significant dispute between the parties about whether the orders that I had made on 13 February 2008 in respect of the filing of affidavit material had been complied with.  I shall turn to that below.

20. Ultimately, counsel for the mother sought by oral application, to vary the existing arrangements until the next stage of the trial predominantly based upon the family consultant’s report and the brief affidavits that each party had filed.

21. The law relating to an interim determination of a parenting case was set out in Goode and Goode (2006) FLC 93-286. The Full Court said:

    51…As we have already indicated, it is not necessary to seek an order for equal shared parental responsibility to trigger the presumption in s 61DA.  All that is required is that the Court be making a parenting order.  Thus, it does not matter whether the issue of equal shared parental responsibility was put in issue by the parties, or either of them, as the Court is required to apply s 61DA in any case in which a parenting order is to be made. 

    …

    55.First, there is no distinction drawn in s 61DA between interim and final proceedings.  Secondly, s 61DA(3) specifically refers to interim proceedings in saying:

    When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

    Thirdly, s 61DB, which says:

    If there is an interim parenting order in relation to a child, the court must, in making a final parenting order in relation to the child, disregard the allocation of parental responsibility made in the interim order.

    assumes the making of interim orders for equal shared parental responsibility or some other allocation of parental responsibility.

    56.In our view the Act makes it clear that when a parenting order is sought, whether it be an interim or final order, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility as expressed in s 61DA, subject to the qualifications in sub-sections (2), (3) and (4).

22. Specifically, in respect of interim hearings, the Full Court said:

    72.In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable.  This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

    73.That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A). 

    74.We also acknowledge that, because of the circumscribed nature of the proceedings, the reasons given at an interim hearing may be brief.  So too, the filing of lengthy affidavits is unlikely to be helpful where the Court is unable to make findings about disputed facts.

23. Notwithstanding that these parties already have equal shared parental responsibility for the children and are still disputing that issue for the future, s 61DA(3) says:

    When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

24. In this case, the mother seeks to follow the recommendation of the family consultant that she should have sole responsibility for the decisions about the children until such time as the parties can have a modicum of communication.  Two problems arise.  The first is that as s 61DA(3) says, the presumption applies even when making an interim order including where the parties already have equal shared parental responsibility.  Secondly, as in many cases, the presumption starts a pathway to questions of how time between parents is determined. 

25. The Revised Explanatory Memorandum of 27 March 2006 to the Senate commented that the Court’s discretion in s 61DA(3) was necessary because limited evidence may be available for interim hearings.  In this case it is not so much the availability of the evidence but the importance of endeavouring to deal with confined issues of fact which are untested and very much disputed.  Of that issue, the Full Court said that the explanatory memoranda suggested:

    …s 61DA(3) provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult.  In this case for example, we respectfully agree with his Honour’s decision that this consideration meant it was inappropriate to apply the presumption.

26. The Full Court therefore made clear:

    81.In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child.  However, the legislative pathway must be followed. 

    82.In an interim case that would involve the following:

    (a)identifying the competing proposals of the parties;

    (b)identifying the issues in dispute in the interim hearing;

    (c)identifying any agreed or uncontested relevant facts;

    (d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

    (e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

    (f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

    (g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

    (h)if equal time is found not to be in the child’s best interests, considering  making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

    (i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of  consideration of one or more of the matters in s 60CC;

    (j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

    (k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child. 

27. I have already set out the background facts.  The orders I made on 13 February 2008 were intended to address the issue of better communication between the parties for the sake of the children.  The statement made by the mother at that time was that when the father collected the children, he turned his back upon her and refused to acknowledge her.  The father strongly disagrees with the factual statement.  It is clear however that there is virtually no communication between the parties and a palpable dislike for each other.  It is abundantly clear that there is no trust between them. 

28. The issue of communication is important in not only determining how much time each parent should spend with children but also the fundamental question of making decisions about the welfare of children.  The irony in this case is that the parties agreed to orders for equal shared parental responsibility at a time when their communication was poor.  However, an order was made that the parties attend privileged counselling with a Dr S.  It is clear that the full set of intended counselling appointments was not kept.  In my view, whether that evidence is privileged or otherwise, matters little.  The reality is that the parties do not communicate.

29. On 13 February 2008, I made an order that the parties do all things possible to enrol and attend a POPS program.  I was told that the father had immediately enrolled and the mother more recently but that is something that has not been completed.  Having regard to what I have heard from and about the parties, I am not hopeful even with the benefit of such a program that they will see the future interests of their children the same way.  To use an expression of Ms Wheeler for the mother, the children will face parallel parenting. 

30. The evidence of the father was blunt.  His view was that the lack of communication between he and the mother was not the primary reason he and she were “experiencing difficulties in relation to the parenting” of the children.  Quite the opposite.  He said that “fundamentally” the mother did not want him to have a relationship with the children.  He pointed to the mother’s repeated and unilateral breach of orders.

31. The father said that the communication book recorded a daily routine followed by the mother which he said she expected him to follow without deviation.  He pointed to the fact that when he made suggestions, her response was to reject his involvement in the lives of the children.

32. In respect of communication therefore, not only does the father acknowledge the difficulty but I refer back to his own words that the parties were “experiencing difficulties” in relation to parenting.

33. The parties have a starkly different view about the problems encountered by the children.  This was the specific issue that I addressed in the orders I made on 13 February 2008.  The father said there was no problem with the children at changeover.  He felt that the children were comfortable having two homes and were not confused about the fact that there were two sets of everything.  Importantly, he had no difficulty with the children sleeping, eating, playing or acting out.  Accordingly, he felt that the current progression was appropriate and he strongly opposed the time of the children being reduced.

34. The mother by contrast filed a comprehensive affidavit much of which was not what was ordered or intended.  She said that the orders have not worked well for the children.  In particular, she said they were extremely disruptive.  She pointed to the fact that since the orders were made in 2006, the behaviour of the children has markedly deteriorated.  She pointed to the regression in their milestones, their toilet training and their sleeping habits.  Importantly, she said that subsequent to the return from their father, the children were extremely aggressive and fighting one another.

35. In relation to communication, she pointed to the fact that nothing had changed other than the father was now sarcastically using words of greeting.  Contrasted with what the father said, the mother indicated that she had asked constantly that he write details of the children’s sleeping pattern but it did not happen.  This had a significant impact upon her own lifestyle and made her attempts to set a lifestyle for the children with discipline, very difficult.

36. The contrast between the pieces of evidence about what was happening in the two households could not have been more stark.  That is exactly what I was endeavouring to ascertain when I made Order 3(b) on 13 February 2008.

37. Counsel for the mother sought that until further order, the father spend time with the children from 6.00pm Wednesday to 6.00pm Friday.  A block period of 48 hours.  That is radically different from the present regime but supported by the family consultant.

38. At the present time, the longest period of time that the children are with the father is for about 2½ days.  That is, from 10.00am Friday to 6.00pm Sunday.  When varying times are totalled up, the father sees the children in seven out of 14 days and spends four nights with them during that period of time. 

39. Counsel for the mother said that she relied upon the evidence of Ms W.  The children were primarily attached to the mother and that the mother and father lived in different worlds where the complexity of the orders was confusing.  That confusion gave rise to the erratic and insecure behaviour of the children.  In her submission, the evidence for change was compelling.

40. The father’s position was that the children were in a settled routine and the evidence was that they were enjoying their time.

41. With some degree of reticence, the father said that he did not accept what the mother said was happening in her home.  In other words, the underlying drama that the mother reported and about which Ms W commented, was very much in dispute.

1. Mr Allen for the father said that the whole issue was a matter that required the evidence to be tested and that we were ten weeks out from a continuation of the trial.  He said there was no basis therefore to change the existing arrangement which had stood the test of time since January 2008.  In his submission, the change was not in the best interests of the children.

2. The only objective evidence of any nature that I have is that of the family consultant Ms W.  There has to be some reservation about the conclusions that Ms W adopted having regard to the fact that her observations of the parties and the children were extremely limited.  It may very well be that Ms W with her considerable experience, felt that what she saw was sufficient to draw the conclusions she did.  Ms W did not have the benefit of the affidavit material of the parties.  However, it seems clear that the subjects that were ultimately in the affidavits were discussed with the parties.

3. Ms W did have the benefit of some previous professional advice to the parties and the Court although just exactly how much that influenced her decision is unclear.  I raise that because the father strongly disputes the basis upon which conclusions were drawn by a previous expert. 

4. Ms W completed a very comprehensive report.  She witnessed a very unusual scene in that when she endeavoured to bring the children and their father together, they clung steadfastly to their mother and refused to be separated.  They put one arm across their eyes and averted their heads from their father.  Ms W noted their significant distress.  She indicated that this behaviour was most unusual.  That is particularly so having regard to the fact that there are considerable changeovers between the parties each week and the father plays a significant part in the lives of the children.

5. Notwithstanding Ms W did not have the affidavit of the mother, she had a litany of concerns expressed by the mother.  When canvassed with the father, these were not seen as a difficulty for him at all.

6. The nub of the views of Ms W are as follows:

   69Currently [the children] move between their parent’s (sic) two very different worlds six times in a fourteen day period.  This exposes them to the parent’s (sic) dysfunctional dealings with each other very frequently.  In addition to this the complexity of the time schedule these children have with each parent is confusing for even the Family Consultant to decipher.  It would be expected that children of three and a half with limited language and understanding of time and who are still consolidating secure attachments could make no sense of these arrangements.  It is not surprising therefore that their behaviour with the parent with whom they have spent most time and fear losing the most, is at times erratic, insecure and testing.  The security of the attachment between [the children] and their mother appears, as a consequent of the current circumstances, to be under threat.

   70Whilst it is evident that [the father] now has a significant role to play in these children’s lives, it is equally evident that what appears to be these children’s anxiety about losing their primary parenting figures, that is their mother, needs addressing.  At this point in their lives, developmentally it is not ideal for them to have such frequent moves and lack of a clear home base and in the context of the family conflict it is even less so.  It would seem vital that [the children] have longer periods of times with their mother, interspersed with limited overnight times with their father.  This may mean overall less time with their father but as stated in the previous reports, the vital factor is not the number of hours spent but finding a way to assist the children’s capacity to cope with living with two very different and hostile parents.

7. Ms W commenced her evaluation by saying that the extremely fixed negative views that each party has of the other which is reflected in extreme hostility, had the consequence of increasing the damage to two very vulnerable young children.  She added however that despite that, the children were progressing remarkably well and that that had to reflect on the quality of the parenting they have had until now. 

8. Ultimately, Ms W took the view that the mother was the primary parenting figure for the children and that she was their primary security and attachment.

9. The quote that I have set out above from Ms W makes it clear that the different changes and ways of life expose the children to their parents’ dysfunctional dealings with each other very frequently.  If one adds to that the complexity of the schedule of changeovers in a very short space of time it was not surprising to Ms W that their behaviour was at times erratic, insecure and testing.  The difficulty with that is that on the evidence which is strongly disputed by both parties, the problem is occurring in one household but not the other.  What Ms W witnessed may very well have been as due to tiredness, confusion and a change of environment.  She certainly witnessed a very close and loving relationship between the father and the children when the dust settled.  The one concern that Ms W raised was the limited insight that the father has to the needs of the children.

10. All of these matters need to be adequately and properly tested.  They have not been.  Ms W may very well say that there is nothing further that can be said and that she has no reason to change her mind.  What troubles me is the prospect of further changes in what are already affecting these vulnerable children.

11. There are clearly conflicting facts about what is in the best interests of these children.  The parties’ competing proposals are abundantly clear.

12. On an interim basis, my view is that it would be inappropriate to make a further change notwithstanding the very strong recommendations of Ms W.  I say that entirely on the basis that the evidence remains to be comprehensively tested.

13. Section 60CA requires that in deciding whether to make a particular parenting order, the court must regard the best interests of the children as the paramount consideration.  When making that determination of what is in the best interests, the court must consider the matters set out in s 60CC.

14. There is little doubt in this case that the children already have a meaningful relationship with both parents.  That was evident to Ms W.

15. Whilst there is some suggestion of verbal abuse in this case, it is not sufficient for me to determine on the evidence whether that is a consideration that I should take into account.

16. I am not in a position to make any determination about what views the children hold in this case having regard to their ages. 

17. Notwithstanding the bizarre incident witnessed by Ms W, the parties otherwise seem to indicate that the nature of the relationship with the children and the other parent is a close one.  Part of that relationship involves the mother’s child K who is now 12 years of age.  K however is at school and whilst she expressed the desire to Ms W to spend more time with the children, it would seem that that is not something that I should address on an interim basis because there is currently ample time for K to spend with the children in any event. 

18. Section 60CC(3) requires that I consider the willingness and ability of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent.  Each points the finger at the other as a cause of the problems.  Ironically, the father says that if the problem in the mother’s household exists, and he disputes that, it is of the mother’s own making.  The father’s position is that there is no problem in his household and that therefore there is no explicable reason why it should be happening in the mother’s household.  That is a matter about which I am unable to make any determination on an interim basis.  It is a matter about which I will have significant concerns on a final hearing.

19. I have considerable concerns about whether there is a basis for the father to argue that the mother is endeavouring to cut him out of the lives of the children.  That would seem inconsistent with her approach to the Court that he should spend two days out of seven with the children.  He might point to the previous history but I suspect that both parties have moved on since that time.  Of some concern is the assertion by the father that there is no regard for him as a parent and to some extent, that was borne out by the evidence of Ms W.  However, the mother equally points to the fact that the father does not respond to her suggestions about providing information to her having regard to the significant amount of time that he spends with the children.  In summary therefore there are significant concerns about the capacity of each parent to facilitate, encourage and foster the ongoing relationship between the parents and the children into the future.  On an interim basis, with that dilemma unresolved, I do not feel it is appropriate to make changes to the existing regime. 

20. Ms W says that the appropriate level of time between the father and the children is two days out of seven.  That may very well be the appropriate time once the evidence is comprehensive and tested.  At this stage however, I do not know what impact such a change would have on the children other than the fact that Ms W says it would be likely to ameliorate some of the behavioural things asserted by the mother.  The mother’s evidence in relation to that has been supported in a general way by her own mother.  However, I do not feel it is appropriate to draw any inference on that evidence at this stage without it being comprehensively tested.

21. Section 60CC also requires that I consider the capacity of each of the parents to provide for the needs of the children including their emotional and intellectual needs.  I have a serious concern about both parties in respect of this issue.  In relation to the mother, the father asserts that she is endeavouring to cut him out of the lives of the children.  If that is so, notwithstanding what I have just said, it would indicate that she does not have a responsible attitude to parenting.  Her capacity in that sense would be limited.  On the other hand, the father adopted an ambit-claim type approach from birth wanting a week about arrangement.  He persists in that situation today.  He referred to the need for the children to have equal time.  That issue needs to be canvassed and tested because it may very well be that he lacks the capacity to provide for the emotional needs of the children if what Ms W says is correct. 

22. The arrangement for these children is well settled.  I do not have the immediate ability to test the controversial evidence.  I have considered all of the matters set out in s 60CC but feel that it is in the children’s best interests that the matter be looked at comprehensively in a few weeks time.

23. The presumption of equal shared parental responsibility applies unless it is otherwise rebutted.  In this case, the parties already have a court order that provides for them to have equal shared parental responsibility.  The application of the presumption however still applies as I am asked to make parenting orders even on an interim basis.  In my view there is no basis here for the presumption in s 61DA to be rebutted. 

24. Accordingly, the provisions require that I consider making an order that the children spend equal time with the parents.  That should not apply if it is contrary to the children’s best interests as a result of the consideration of the matters in s 60CC.  In my view, that is clearly the case here having regard to all of the controversial issues about which the parties disagree.

25. If equal time is then not appropriate, the court is obliged to consider whether or not substantial and significant time as defined in s 65DAA(3) should be ordered.  Again, that should not be so ordered if it is contrary to a child’s best interest.  In this case however, I find that the orders as they currently stand amount to substantial and significant time as so defined.

26. In the circumstances therefore, it is not appropriate for me to vary the existing orders pending the final determination of the matter in such a short space of time.

27. I do however intend to make orders for the appointment of an Independent Children’s Lawyer having regard to the intractable conflict between the parties.

28. I have already put in place procedural orders so that there is no impediment for the matter to proceed further.

I certify that the preceding Sixty Nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  30 May 2008