Loddon and Loddon

[2008] FamCA 192

FAMILY COURT OF AUSTRALIA

LODDON & LODDON [2008] FamCA 192

FAMILY LAW – CHILDREN – Contested proceedings involving serious allegations of parental manipulation – Matter not ready for trial and recommended there be a further updated expert report which may assist in resolution.

Family Law Act 1975 (Cth) (as amended)

PRL & KMB  (2005) FamCA 242

APPLICANT: Mr Loddon

RESPONDENT: Mrs Loddon

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 11689 of 2007

DATE DELIVERED: 12 February 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 11, 12 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dickson

SOLICITOR FOR THE APPLICANT: Cynthia Toose & Associates

COUNSEL FOR THE RESPONDENT: Mr Testart

SOLICITOR FOR THE RESPONDENT: Morrison & Sawers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Napier

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Dawes & Vary Pty Ltd

Orders

1. That the parties attend upon Mr P for an updated report to address the future living/spending time arrangements for the children R born on the … of January 1997 and J born on the … of October 2000 such report to address, inter alia, the likely effect on each child of a change to their living arrangements, the children’s relationship with Mr M and any other matters referred to in Section 60B or 60CC (or otherwise) considered relevant by Mr P.

2. That the costs of the report be met from the farm account operated by the Husband.

3. That all applications be adjourned for mention only before Registrar Mestrovic on a date to be fixed and listed for hearing, insofar as it is practicable to do so in May 2008.

4. That each party file and serve any further Affidavit material to be relied upon at trial:

a)The Husband file 21 days prior to the trial date;

b)The Wife file 14 days prior to the trial date.

1. That all parties file and serve an Outline of Case Document (including a Summary of Argument, List of Assets and Liabilities and Orders sought) 3 days prior to the trial date.

2. That the ex tempore judgment delivered this day be transcribed, placed on the Court file and made available to the parties. 

3. Certify for Counsel. 

IT IS NOTED That the parties are to meet with Mr P on 16 April 2008 and it is expected his report will be released later that month. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11689  of 2007

Mr Loddon

Applicant

And

Mrs Loddon

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter comes before me in the Standard Track List of Defended Cases being fixed for hearing commencing on 11 February 2008.  The proceedings were before me last in the Regional sittings of the Family Court of Australia at Mildura in November 2007. 

2. The issues are complex and involve two children of the union of the parties, namely R, who was born in 1997 and J, who was born in 2000.  A child of the wife's former union, E, is also involved having lived in the household of his mother and the husband from about 1995.  At that time the wife was 27 years and the husband was 31 years of age. 

3. Following unhappy differences between them, the parties separated in September 2006.  The circumstances of the separation have become a substantial and bitterly contested justiciable issue between the parties as the wife shortly thereafter formed, so it is said, a relationship with a Mr M who has played a significant role in these proceedings.

4. Another contested issue concerns the farming property operated by the parties during the course of their marriage, and that alone carries with it issues of a substantial nature arising from section 79(4)(a) and (b) of the Family Law Act 1975 (as amended), particularly on the issue of financial contribution and the source of the lands for the farming enterprise.

5. Issues associated with the farm have arisen, as I have read it in the affidavits thus far, concerning its general commercial and prudent operation and otherwise disclosure of relevant financial documents.  They are not the sort of matters that should be left to expensive litigation when good commonsense would recognize, and fairly so, the relevant mandates required to be considered under section 79(4) of the Act, and that the parties should remain open to sensible, dignified and commercial rationalisation of those problems.

6. The issues concerning R and J are quite different.  I have had the advantage of reading a lengthy report of Ms F, which I thought was an impressive document in that she isolated very quickly the issues between the parties and the fact that R was highly resistant to seeing her father.  Furthermore, reacting in the shadow of R, J too was adopting a similar stand.  Ms F made it perfectly clear that the role of the husband in the lives of the children was very important, in fact, central to the children's long‑term welfare and development. 

7. It is disappointing to learn that following the separation, and in such a short period of time, children of their age offer this sort of resistance.  Why that would be so will be a matter for evidence.  It is not unfair to observe that history has taught me in this court that encouragement by both parents, respecting the role of the other in the children's lives, generally results in children enjoying their time with the absent parent following separation.

8. I have also had the advantage of reading the first report of Mr P.  This was a most impressive document in which he properly observed that since the previous report of Ms F the matter had not progressed.  He reported that what seemed clear was that the relationship between the parties suffered “very significantly”, that communication between them became strained "in the extreme" and that the mother felt very much “controlled and dominated”.  On the other hand, the husband could not understand why his wife withdrew and became so “non-communicative”.  That, I might say, is now history, and I would have an expectation that between this day and the recommencement of the litigation there be a realisation by the parties, and in particular by the party who has the principal influence in the day‑to‑day care and welfare of the children, that any continuation of this tragic situation is contrary to the children's best interests.

9. Mr P reported that, from a children-focused perspective, there were a number of clear features worthy, in his view, of strong comment.  He said that the children were “very much aligned” to their mother, but were also very aware of the tensions and the conflict between their parents.  He said that J "clearly acknowledges that he misses his father and wants to see him", but that he also understood that any time he spent with his father occurred in the context of “extreme conflict and acrimony” between his parents.  That would suggest to me that the acrimony between the parents must cease.

10. When dealing with R, Mr P went on to report that even at the interview, she was "clearly and literally crippled by anxiety".  He went on to make the following observation:

    “… She is so overwhelmed by the conflict between her parents, so aware of the unspoken messages, clearly understands the message of restraint and her mother's anger at her father, but presumably too, his anger at her.  She feels very much the lynch pin between her parents, is unable to make a decision because of the unspoken expectations that are clearly communicated to her, which in turn makes her feel clearly triangulated.  She feels she is betraying her mother if she sees her father, but similarly betraying her father because she lives with her mother; she is then placed in a position of having to make a choice about them.  Whilst she has a good relationship with her mother, this is a more anxious attachment.  There is also the fear that her mother will be angry if she expresses her wish to see her father and will somehow invite her mother's rejection of her should she do so.  Whilst I am not for a moment suggesting that any of this is at a conscious and deliberate level, the manifestation in [R] I think is clear and makes very good sense of the behaviour, the difficulties and the conflict.  I would like to point out that [R’s] reasons for not seeing her father are not sufficient to warrant her not seeing her father at all over the course of her life, and yet this is the likely outcome if [R’s] anxieties and behaviour is allowed to continue.  I also think it extremely likely, that if this was to be discussed with [R], that she would deny any such feelings.”

11. A little later, Mr P went on to say this:

    “… The problem in this dispute is not the children but rather [the father and the mother].  Their interaction with each other, the way they behave in relation to each other, the involvement of Mr [M], and their relationship of post separated parents, all impact directly upon the children and give to both children a confused and contradictory message.  Both [J] and [R] are unable to maneuver between their parents, notwithstanding that they clearly should. 

    Until [the father and the mother] take responsibility for their own behaviour and their relationship as parents, and create for their children a safe context in which they can negotiate within the family, then it is likely that both children will experience difficulties.”  (pp 15-16)

12. Mr P then went on to make other pertinent observations.  I only highlight these particular comments of Mr P, who in my view is a most distinguished expert witness dealing with welfare issues, to cause the parties to reflect very carefully upon their respective roles over the next few months and endeavour to come to a realization, in a genuine and unfeigned manner about their input into their children's current dilemma.

13. I have had the advantage of reading the affidavits of the parties and the recent report of the Children's Contact Service.  I wish to say no more at this stage than that the report of the contact service raises serious issues and will concern any successor to me called upon to determine the contest between the parties.  The contact centre has recommended that it is appropriate to have an updated report to address current issues which are set out in that report.  It concerns me that the provision of a motor vehicle outweighs or supersedes the best interests of children.  I do not see that as being appropriate at all, for every endeavour must be made to accord the children seeing their father despite the tyranny of distance with which they are faced.

14. I am further advised that Legal Aid Victoria do not consent to the adjournment, it being "the fourth adjournment", on the basis of funding.  Let me make it very clear to Legal Aid Victoria that children's welfare should, in my view, never be surrendered to the financial expediency of funding requirements.  I have a ready expectation that the critical, indeed crucial, role of the Independent Children's Lawyer will be maintained at the trial and I will direct that a copy of my extempore judgment be transcribed, placed on the court file, made available to the parties, and that the Independent Children's Lawyer will forward a copy of the judgment to Legal Aid Victoria.

15. Earlier in the proceedings I took the opportunity of discussing the advantages of a consensual resolution, and I accept unreservedly that the parties, very much at arm's length, did their very best all day yesterday to reach an agreement.  A consent order is by far the best way to go. 

16. It must not be forgotten, lest it be so by one party, that children have a right to know and be cared for by both of their parents. It is plainly simple and obvious that R and J have a right to spend time on a regular basis with and communicate on a regular basis with both their mother and their father, together with other people significant to their care. That would include, for example, cousins, aunts, uncles, grandparents and the like. It is also fundamental that parents jointly share duties and responsibilities concerning the care, welfare and development of their children, and that parents should agree about the future parenting of their children. Those mandates are laid out in section 60B of the Family Law Act 1975.

17. I suspect that one of the issues here, arising from my reading of the reports, is an attitudinal response of the parents, in this case the mother, which has impacted upon their parenting.  In a case that I decided some years ago now, I pointed out in the strongest way that there was an obligation on the part of each parent to foster the image of the absent parent.  I said that within itself required discipline, together with an ability to sublimate one's own feelings of pain, hurt or anger in order to benefit the best interests of their children.

18. In these circumstances, and it should not be consigned as meaningless, it is plain that one is not looking towards the action of the perfect parent in a utopian world, but one who recognises the importance of those qualities and strives to achieve that desired end.  That may mean, for example, an aggrieved parent seeking greater understanding by recourse to professional assistance.  It is my view that to wallow in the mire of disillusionment, anger and bitterness can only by example influence children in a variety of negative ways against the absent parent.  That effect is dramatically compounded by the spoken word of negativity, passive alienation and subversive manipulation.  (See PRL & KMB (2005) FamCA 242)

19. I have read in the papers allegations, for example, that overt, defamatory and disgusting statements are alleged to have been made in the presence of the children about a parent.  If that is so, it must cease.  If it is not so, and transpires to be on the hearing, a fabrication, then that reflects upon the maker of the statement.  Those comments I make in a neutral way.  But it highlights the need for each parent and those other persons significant in the lives of these two children to be restrained and look to the best interests of the children and not give way to their own feelings of anger and bitterness.

20. In my view, the orders proposed are appropriate.  It is proper to have a further family report, for it may assist the parties in resolving the issues.  I accept that all day yesterday was usefully utilised by the professional representatives of the parties in a genuine endeavour to achieve an overall adjustment.  That has failed.  A further report is undoubtedly necessary, and it may be that attendance upon Mr P, given his expertise, may assist the parties in coming to a sensible adjustment. 

21. I will mark the orders plainly as orders, not consent orders, Exhibit “A”.  I make orders in terms of Exhibit “A”.  There is to be added to the orders paragraph (3) as follows:

    “All applications be adjourned for mention only before Registrar Mestrovic on a day to be fixed, and listed for hearing insofar as it is practicable to do so in May 2008.”

22. There is also to be added a notation:

    “It is noted that the parties are to meet with Mr [P] on 16 April 2008, and it is expected his report will be released later that month.”

23. There will also be included in the order:

    “That the extempore judgment delivered this day be transcribed, placed on the court file and made available to the parties.”

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  26 March 2008