Loddington & Derringford

[2009] FamCA 705

FAMILY COURT OF AUSTRALIA

LODDINGTON & DERRINGFORD [2009] FamCA 705

FAMILY LAW – CHILDREN – With whom a child spends time – Father seeking to re-establish time with children

Family Law Act 1975 (Cth)

APPLICANT: Ms Loddington

RESPONDENT: Mr Derringford

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: AYC 390 of 2007

DATE DELIVERED: 5 AUGUST 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: BY WAY OF WRITTEN SUBMISSIONS

SUBMISSIONS RECEIVED FROM:

SOLICITOR FOR THE APPLICANT: LORETTA TERRILL FAMILY LAWYERS

SOLICITOR FOR THE RESPONDENT: HARRIS LIEBERMAN

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: MORRISON & SAWERS

Orders

1. That all outstanding issues be referred to the co-ordinating registrar to conduct a telephone mention to see whether the matter is ready for final hearing and if so for what duration.

2. That until further order, paragraph 11 of the orders made 31 October 2008 is suspended.

3. That until further order, the father spend time with the children M and E born … June 2004 as follows:

   (a)for each of the four Fridays commencing 7 August 2009 from the conclusions of kindergarten (at about 2.30pm) until 6.00pm that day with the children then being returned to the mother at the McDonald’s Restaurant, C; and

   (b)commencing on Friday 4 September 2009 from the conclusion of kindergarten (at about 2.30pm) on the Friday until 6.00pm on the following Saturday with the children being returned to the mother at the McDonald’s Restaurant, C.

4. That in the event the children are not attending kindergarten the father collect the children from the mother at the McDonald’s Restaurant in C at 2.30pm.

5. That until further order, if the Court has been unable to finally determine the matter prior to the children commencing school, then the father spend time with the children as set out above from the conclusion of school until the 6.00pm on the Saturday.

6. That in the event that the mother wishes to have the children away from the C area on a holiday period, if agreement cannot be reached for some substitute arrangement for the father to spend some time each week with the children, the mother have liberty to apply on short notice for a determination of such issue.

7. That the application of the mother for interim orders filed 19 March 2009 and the response of the father seeking interim orders filed 19 May 2009 be otherwise dismissed.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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. On 31 October 2008 after a four day contested parenting hearing, I made final orders relating to M and E.  These children are twins and they were born in June 2004.

2. In the same hearing, I also made orders about the mother having sole parental responsibility for making decisions relating to a number of matters.

3. Under the orders, Mr Derringford, the father, was to spend time with the children from 12 noon on Friday until 6.00pm on the following Sunday in the first week of a two week cycle and from midday on Wednesday until 6.00pm on the following Friday in the second week of the two week cycle.  That was to continue until February 2010 when it was anticipated that the children would commence school.

4. In January 2009, the father ceased spending any time with the children without warning the mother in advance.

5. The father has now decided that he wishes to resume his time with the children.  On an interim basis, the matter is hotly disputed.

6. The father proposed the build-up over a short period of time then reverting to overnight contact.  The mother’s position was that the father should spend time with the children at a contact centre for one month and then limited time in the presence of the maternal grandfather on an alternate weekend basis moving to one day overnight later in 2009 all of which was conditional upon counselling. 

7. The Independent Children’s Lawyer’s position was that there should be a few short introductory visits then a reverting to the existing orders.

8. Initially the application was sought to be held in a hearing at which the matter had to be adjourned because of a sudden absence of counsel.  All parties agreed that the matter should otherwise then be dealt with on submissions.  Accordingly, I am determining this matter on the basis of the parties respective affidavits and their written submissions.

9. The first observation that needs to be made is that notwithstanding it was the father who ceased the contact, it was the mother who filed the application to discharge the October 2008 orders.  She filed her application in March and that precipitated the father seeking to not only resurrect the orders but he also sought injunctions in relation to the use of the child’s name.

10. Much of the mother’s evidence was uncontroversial and conceded by the father.  She said that the father was due to see the children on 30 January 2009 and at 10.45am that day, she received a text message which simply read “not picking the kids up today”.  She responded asking for a reasons but received none.  The next designated period was only the middle of the following week and again the father did not arrive.  He sent another message saying “not picking the kids up today”.  Again the mother asked for a reason and received none.

11. The day after the visit to which I have just referred was due, the mother and father had a confrontation in a local hotel.  The inference to be drawn was that the father was quite happy occupying his time in a social setting whilst the children were pondering his absence. 

12. Later that week, the father sent another message again saying that he was not picking the children up and subsequent to 13 February 2009, the mother received no contact from the father.

13. In a very poignant statement the mother said:

    Each week I get the children ready to spend time with their father.  I explained that they will be spending time with their father and I packed their bags.  I explained to the Director of the children’s pre-school on Fridays that the respondent will be collecting the children.  It is becoming extremely difficult to explain to the children why their father does not attend to collect them to spend time with him.

14. None of this evidence was contested by the father.  He did dispute the gravity of the hotel meeting but I am satisfied that nothing turns on that issue.

15. The father’s evidence was that after spending time with the children in January 2009, he felt frustrated, disappointed and sad.  He said that after spending 4½ years in the court system and the programs associated with it, little had changed between he and the mother.  He said that in February/March 2009 he went to Tasmania with a friend of his and spent time with his family in Melbourne returning to his home feeling happier and more positive.  Notwithstanding that, he did nothing until the mother served the application that gave rise to these proceedings. 

16. Interestingly, the father’s material is a narrative about matters as if there was nothing wrong.  That was clearly not the case. 

17. The father filed a second affidavit filed 29 June 2009 in which he acknowledged that as a result of the legal practitioner for the mother requesting he undergo a psychiatric assessment, he obtained an appointment with Dr T.  The whole tone of his second affidavit was completely different to that of the first.  In the first affidavit, it is abundantly clear that the focus was on him rather than on the problem that he had.  The second affidavit acknowledged not only his problem but its impact upon the children.  He said:

    I appreciate that not obtaining help and ceasing contact with [the children] was the wrong way to deal with things in January and I am sorry for any distress or confusion that I may have caused the children.  I love the children dearly and the last thing I would want to do is hurt them in any way.

18. He then went on to refer to the fact that he undertook the assessment with Dr T and then made arrangements to meet a psychologist.

19. It is rather unfortunate that the first affidavit really did not indicate the gravity of the problem that he was dealing with and as I said, the impact upon the children. 

20. The father relied upon the evidence of Dr T.  Dr T is a very experienced child and family psychiatrist in private practice.  He filed a comprehensive report after seeing the father.  I do not propose to deal with most of the matters to which Dr T refers as the background.  The mother’s position is that some of those things are wrong and contentious but in my view, the assessment generally is of some assistance to me.

21. Dr T said that the father did not suffer from any psychiatric or psychological illness but it seemed likely that that was not the case earlier in the year.  He said that it was most likely that the father had suffered from a major depressive illness which lasted for about six to eight weeks after the children were returned to their mother in early January 2009. 

22. Dr T said that the father was vulnerable to depression because he was a person who internalised his feelings and views.  The manifestation of that would be clear from what I observed in the trial during August 2008.  Dr T referred to the father as a “somewhat dependent person” reliant upon the emotional support of others although he was quite self-sufficient in most respects. 

23. Dr T thought that the father’s prognosis was good provided that similar circumstances did not arise again in the future.  It is this latter point that needs to be carefully considered and that should be the subject of analysis for the forthcoming final hearing of the matter.

24. Dr T said that the father did not suffer from a diagnosable condition at this stage and there was nothing impairing his parenting capacity as a result.

25. The mother filed an affidavit by the maternal grandmother.  This was objected to on the basis that it contained considerable hearsay.  However, this is a matter to which Division 12A applies.  I propose to admit the matter into evidence and it certainly then becomes a matter of weight to be given to it.

26. The affidavit purports to be a record of a conversation between the maternal grandmother and the father’s former girlfriend.  This person gave evidence before me as a witness for the father during the trial.  It would appear that that relationship has now ended.  The details of the discussion can be tested in the future but the reality is that the detail about what interim orders are appropriate can be taken very little further.  The conversation notably was about a number of matters.  First, the maternal grandmother reported that the woman said that although the father was claiming depression that was not what was wrong with him.  Albeit that that may be the view this woman held, it is inconsistent with that of Dr T.  I would much prefer the opinion of Dr T.

27. In addition to the foregoing, the woman reported to the maternal grandmother that this was really all about the father not getting what he wanted.  To some degree it is open to interpretation that that is what the father told Dr T in any event.

28. The balance of the material recorded is mostly opinion and otherwise a matter that should be tested in some detail at trial.

29. The submissions of the parties as to what should happen on an interim basis are of considerable assistance. 

30. The Independent Children’s Lawyer submitted that the existing orders should remain save that “further” holiday time be a matter for trial.  However the Independent Children’s Lawyer said that she would not oppose “a few shorter introductory visits” but otherwise a reasonably swift return to the regime.  The basis of that position was that in all likelihood the father was ill.  According to the Independent Children’s Lawyer, that provided an explanation for his failure to “properly inform” the mother about not spending time with the children but that the father now appeared to have recovered.

31. The crux of the Independent Children’s Lawyer’s position was that it was to the benefit of the children that there be a reintroduction. 

32. The father’s position was that there should be a short build-up reintroduction and then return to the sort of structure that was set out in the orders.  The basis of his submission was that the medical position was clear and explained what occurred.  Counsel for the father said that in an ordinary family, agreement would be reached to suspend the operation of a contact order until the parent was well enough to resume.  I agree with that but this case highlights the appalling relationship between the mother and father about which I made so much comment in the reasons for judgment. 

33. Counsel for the father pointed to the fact that the inevitable consequence of the father’s depression was that he was not able to exercise the time with his children and unable to explain that satisfactorily to the mother in the circumstances of her profound distrust of him.  The difficulty that I have with that submission is that the father’s behaviour in the hotel was not entirely consistent with someone who was having a major depressive episode.  It is also inconsistent with the tone of the affidavit which takes a critical view of the mother’s position. 

34. Counsel for the father submitted that the depression obviously did not cure the children’s confusion and that from the reasons that I gave in October 2008, I could conclude that the absence of the father had a significant impact upon the children.  That is certainly consistent with the mother’s view about the children missing their father initially.  

35. The father acknowledged therefore that there should be a gradual reintroduction of his time with the children.  He said that that should happen as soon as practicable.

36. In her submission on behalf of the mother, counsel proposed a very restricted regime of time.  She said that the father was unable to demonstrate a proper attitude to parenting which may of course be due to his mental health but he lacked any insight into his actions not only upon the children but also on the mother’s household.  There is some substance in that.

37. The mother’s position was that the children would benefit from an ongoing relationship with their father but it was difficult having regard to the fact that he was not seeing them according to the normal orders but living in a small country town, he came within their view. 

38. The mother’s somewhat cynical view was that the father did nothing to deal with his depression until she issued proceedings and then had his lawyers manage his problems.  That in turn led him to see a psychologist as well as the psychiatrist.  Whilst that may be true, it is equally open to find that if he had had a major depressive episode, he would not necessarily have been able to get himself out of the rut that he was in.

39. Counsel for the mother submitted that the father sought no treatment until the mother activated the proceedings and that his position arose because he did not get his own way in the orders that he sought from the Court.  That is inconsistent with his behaviour up until at least January 2009 and inconsistent with his statement.  It is consistent with the statement to the maternal grandmother of the father’s former girlfriend but all of that evidence needs to be tested and it is not something about which I could make any particular finding at this stage. 

40. Counsel for the mother submitted that should the father not get his own way and lapse into depression again, the problems would fall to the mother.  In turn the children would be disadvantaged.  She said that if he became less attentive to the twins there were obvious risks concerning their safety because he no longer had the support of his girlfriend.  There is no evidence to support that contention. 

41. Counsel for the mother pointed to the fact that a lack of emotional response in itself could damage the children and that had not been explored.  That is something that can be explored.  All of the evidence however from the expert is that when the father fell into depression, he declined time with the children.  Whilst that may put the children at an emotional and psychological risk, there is no evidence that they would be at physical risk because the father would be most likely to return them to the mother.

42. Counsel for the mother also submitted that Dr T made an assessment based upon what he was told and as such he was an unreliable witness.  Obviously, Dr T had to rely on what he was told but he has considerable expertise and any of the matters about which the mother has some concern can be tested by cross-examination.

43. On an interim basis, the Court is still required to follow the pathway as if this was a final determination. 

44. Section 60B(1) provides:

    (1)      The objects of this Part are to ensure that the best interests of children are met by:

    (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

    (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

    (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

    (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

45. Section 60B(2) provides:

    (2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

    (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

    (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

    (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

    (d)parents should agree about the future parenting of their children; and

    (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

46. It is important to assess s 60B(1)(a) and (b) to ensure that they are not in conflict and otherwise, s 60B(2)(a) and (b) should be at the forefront of the Court’s determination.

47. It goes without saying that s 60B(1)(d) is also an important issue but in this case, on a preliminary basis, I am satisfied that the father did suffer a major depressive incident that precluded his participation.  However, he cannot expect his children to understand that and if there is any prospect of a repetition, he must advise the mother so that the children are not left wondering at the front gate with bags in hand.

48. Section 60CA says:

    In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

1. Section 60CC(1) provides:

   (1)      Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

2. Section 60CC(2) is the twin pillars as they have been described.  I am satisfied in this case that the children do have a meaningful relationship with their father and the current absence from their lives is not in their best interest.  I am satisfied on the evidence of Dr T that at least at this stage, whilst vulnerable to depression, the father is more likely than not to simply pull back from the children’s lives.  The problem of communication is the issue again.

3. In relation to s 60CC(3) the additional considerations require me to consider the nature of the relationship of the children with each of the parents.  All of those findings were made in the judgment that I delivered in October 2008.  There is no reason for me to reconsider those matters at this stage.  I am satisfied that the relationship between the father and the children is otherwise good save for what occurred subsequent to January 2009.

4. It is quite clear that the children are missing their father or at least they were.  Time is having an adverse impact upon the relationship with the children and that needs to be rectified.

5. I have contemplated the capacity of each of the children’s parents.  The mother deserves commendation for the fact that she endeavoured to ascertain what was happening to the father that gave rise to the problem.  Whilst there is a dispute about what happened in the hotel, the father’s first affidavit would tend to suggest that he had little respect for the mother notwithstanding the depression that he was suffering.  The father’s capacity may have been affected by the major depressive illness but he must understand the impact that he has on simply walking away from the lives of the children.  Whether he can provide for their emotional and intellectual needs remains to be seen.

6. That in turn reflects badly on his attitude to the responsibilities of parenthood and I would need to have some evidence about whether or not someone with a major depressive illness still has the capacity to at least advise the other person in a civilized way of what is happening so that the children can at least not be disappointed.

7. I do not propose to deal with the matters set out in s 60CC(4) and (4A) on the basis that I canvassed all of those issues in my judgment.  If I am however to look at what occurred subsequent to January 2009, it certainly would appear that the father failed to facilitate the relationship with the children.

8. I do not propose to deal with the parental responsibility issue because that was covered in the proceedings in October 2008 and will no doubt be revisited in these ultimate proceedings.  In addition, s 60DA(3) provides that in an interim hearing, where findings can obviously not be made, it is not a matter about which the Court should be troubled.  This is such a case.

9. Overall, it is in the best interests of the children that the existing orders be suspended and that there be a build-up of the father’s relationship with the children.  I am satisfied that it is not necessary for the visits to be supervised on the basis of the general expert view of Dr T.  I am also comforted by the fact that the father has been seeing a psychologist to help him deal with all of those sorts of communication and health issues. 

10. However, it is also important to take into account the worry that the mother has about leaving the children with someone who has totally ignored her.  Where there is no communication, her fear of what is happening to the children is understandable.  Time has created a barrier for the children here and that needs to be overcome.  Time will also give some comfort to the mother.

11. I propose therefore to limit the father’s time until the matter can be comprehensively examined.

I certify that the preceding Fifty Nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  5 August 2009