Strahan and Strahan
[2010] FamCAFC 83
•23 April 2010
FAMILY COURT OF AUSTRALIA
| STRAHAN & STRAHAN | [2010] FamCAFC 83 |
| FAMILY LAW – APPEAL - CHILDREN – WIFE’S APPLICATION AGAINST INTERIM PARENTING ORDERS – Not established that trial judge erroneously failed to have regard to concerns expressed by the wife about the impact and risk of adverse reaction of the child to the father spending time with the child at school – Not established that the trial Judge gave undue weight to the Family Assessment Report – Not established that the trial judge failed to give adequate reasons as to why he accepted and relied upon the Family Assessment Report – Not established that the trial judge failed to give adequate reasons for not adopting recommendations of therapist and specialist in treatment of Autism – Not established the trial judge erred in his findings that proposed limitations upon the father’s time with child were appropriate – Not established that the trial judge erred in making orders for the child to spend time with the father on an interlocutory basis – No ground of appeal is successful – Appeal dismissed |
| Family Law Act 1975 (Cth) |
| Gronow v Gronow (1979) 144 CLR 513 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588 |
| APPELLANT: | Mrs Strahan |
| RESPONDENT: | Mr Strahan |
| INDEPENDENT CHILDREN’S LAWYER: | Ann Bills & Associates |
| FILE NUMBER: | ADF | 228 | of | 2005 |
| APPEAL NUMBER: | SA | 92 | of | 2009 |
| DATE DELIVERED: | 23 April 2010 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Coleman, May & Austin JJ |
| HEARING DATE: | 2 March 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 November 2009 |
| LOWER COURT MNC: | [2009] FamCA 1082 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Pyke QC and Mr Holland |
| SOLICITOR FOR THE APPELLANT: | Pederick Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Berman |
| SOLICITOR FOR THE RESPONDENT: | Robinson & Mason Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms West |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia Ann Bills & Associates |
Orders
1.That the appeal be dismissed.
2.That the wife pay the husband’s costs of and incidental to the appeal on a party and party basis as agreed or assessed.
3.The wife pay the Independent Children’s Lawyer’s costs and counsels fees in accordance with the Supreme Court of South Australia scale and Guide for counsel Fees.
IT IS NOTED that publication of this judgment under the pseudonym Strahan & Strahan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 92 of 2005
File Number: ADF 228 of 2005
| Mrs Strahan |
Appellant
And
| Mr Strahan |
Respondent
REASONS FOR JUDGMENT
By Amended Notice of Appeal filed 29 January 2010 Mrs Strahan (“the wife”) appeals against interim orders made by Strickland J on 5 November 2009 in parenting proceedings between the wife and Mr Strahan (“the husband”).
The trial judge’s orders provided that the child of the parties’ marriage, S Strahan (“S”) born in June 1996, spend time with the husband at P School on such day and at such time as the husband and principal of the School agreed. Such time was to be spent on no more than two occasions each week, and to be within the school grounds.
His Honour also ordered that neither the wife nor the child be advised of the husband’s proposed attendance at S’s school pursuant to his orders. The trial judge further ordered that the “issue of ongoing time to be spent” by the husband with the child be adjourned to a date to be fixed after 8 December 2009. The wife seeks that the trial judge’s order that the child spend time with the husband be discharged, and that no order for time to be spent with the child be made in lieu thereof. The wife also seeks that the parties attend mediation for the purpose of seeking to reach agreement with respect to issues relating to the welfare of the child, including the child spending time with the husband.
The husband has resisted the wife’s appeal and sought to maintain the trial judge’s orders.
The Independent Children’s Lawyer (“ICL”) supported the husband’s opposition to the wife’s appeal.
We will refer to the background of the matter at greater length in this judgment. These proceedings being complicated property proceedings as well as children’s issues commenced in 2005. Ms Pyke QC, counsel for the appellant wife informed us that these parties had never attended mediation with a view to resolving the dispute. The first occasion the wife sought any alternate dispute resolution was on 13 October 2009 when she filed a response to the husband’s application. His application asked for orders in terms consistent with an expert report. Her response was that his application should be dismissed not adjourned. The mediation sought by the wife was with a counsellor employed by the Court.
Background
The following matters of background are not controversial.
The parties married in 1994, separated in 2005, and were divorced on in February 2006.
Proceedings in this Court with respect to parenting and financial issues have been on foot since 2005.
On 5 March 2007 Bell J made final parenting orders by consent. The substance of those orders was to provide a graduated programme of S spending time with the husband, subject to the various safeguards stipulated in the orders.
On 5 November 2007 Forbes JR ordered that S spend time with the husband on a day only basis, in the presence of one of S’s therapists.
On 16 October 2008 Dr C prepared his first Family Assessment Report.
On 14 November 2008 Strickland J suspended the orders of 5 March 2007, and made orders introducing overnight time being spent by S with the husband. Those orders were subsequently varied by his Honour on 5 December 2008, albeit the order for time to be spent overnight remained.
On 21 January 2009 Dr C prepared a further Family Assessment Report.
On 8 April 2009 Strickland J ordered that S spend time with his father during the day over the Easter period.
On 19 May 2009, his Honour ordered that S spend time with the husband from 31 July until 20 August 2009 with one of S’s therapists and Dr C to facilitate such arrangements.
On 9 August 2009, Dr C prepared a further report in response to orders made by Strickland J on 19 May 2009.
On 29 August 2009, Strickland J ordered that the husband and wife personally attend upon Dr C after which Dr C was to prepare a further report.
On 16 October 2009 Dr C produced his further report in relation to the possibility of S spending time with the husband.
The orders which give rise to the present appeal were made on 5 November 2009 in the terms we have earlier recorded. Those orders were stayed by Dawe J on 15 December 2009.
Although they are not in complete agreement as to the nature and extent of them, the parties agree that S has special needs which arise to a considerable extent by reason of the condition of Autism from which he suffers.
The husband has not seen S since December 2007, at which time he saw the child for approximately 10 minutes.
In the proceedings before the trial judge, the husband sought orders substantially in accordance with the orders that were ultimately made.
The ICL supported the husband’s application before the trial judge.
Before the trial judge, the wife opposed any order providing that S spend time with the husband and sought an order that the parties attend mediation in the terms presently sought by her.
The trial judge’s Reasons for Judgment
Having identified the proposals of the parties, the trial judge recorded that the orders sought by the husband were consistent with the recommendations of Dr C, a single expert who had been uncontroversially appointed by the parties for the purpose of the parenting proceedings.
His Honour also recorded that, other than for “a very brief moment”, the husband had not spent any time with S since December 2007 despite there having been a number of orders which sought to bring that about.
Reference was then made to the concession of the wife that S should spend time with his father, but that she had been unable to facilitate that occurring. His Honour recorded that the wife asserted that Dr Cs’ latest proposal would have a negative impact on S, his schooling and his relationship with the wife.
Having identified the evidence before him, the trial judge proceeded to consider the submissions made on behalf of the parties. There was no cross-examination of any witnesses before the trial judge, nor did counsel for either party or the ICL seek to cross-examine any witness or the single expert Dr C.
Reports of Dr C dated 9 August 2009 and 16 October 2009 were tendered in evidence before the trial judge without objection.
The trial judge commenced his review of the submissions of counsel by recording:
10.The overarching principle of course is still that the best interests of [S] are paramount. For my part here that entails trying to find a balance between the acknowledged need of [S] to have and maintain a meaningful relationship with his father, and the equally acknowledged need to ensure that no psychological harm is caused to [S], and that he is able to continue to attend and progress in his class at school.
Submissions by senior counsel then appearing for the husband with respect to the wife’s bone fides were then traversed. No finding adverse to the wife in that regard was made by the trial judge.
The submissions on behalf of the husband were summarised by the trial judge in the following terms:
14.Thus Mr Ackman says that all indications are that [S] will cope with his father appearing in his class.
15.As to mediation, Mr Ackman says that given the wife’s attitude it would simply not work, and Dr [C] confirms that.
Also recorded by his Honour was the submission of senior counsel for the wife that Dr C had “treated with disdain the concerns that the wife has with the process that he is now recommending. All he has done, she says, is record those concerns in his report, but he has failed to address them”.
The trial judge referred to a number of the concerns articulated by the wife in her affidavit evidence in chief. These included the wife’s concern that Dr C’s proposal would jeopardize the status of S’s school as a “safe place” for him to be in, and place at risk S’s “own daily predictable routines and space”. The wife asserted that S had previously demonstrated “severe anxiety regarding handover to the Husband at school”.
In her affidavit evidence, the wife had also expressed her concern that further disruptions to S’s “familiar and predictable environment will be detrimental to him emotionally and psychologically”, alleging that only S’s school environment and daily routine have remained unchanged, inferentially since the parties’ separation. The wife further asserted that previously planned school handovers had been “extremely stressful for [S]”, and had interfered with the wife’s parenting, and the “level of trust between [S] and myself, therapists and carers”.
The trial judge acknowledged that the wife had reiterated her concerns to Dr C, as had one of S’s therapists, Mr M, who had stressed the importance of not disturbing S’s sense of “stability and routine of the classroom”.
It was common ground that at all times S had with him, both in the classroom and the playground at P School, one of two specialist speech therapists. Affidavits by each of them (Mr M and Mr SH) were read in the proceedings before his Honour.
Reference was then made to a “query by Dr [A] as to whether some place other than [S’s] school should be trialled” [sic]. Professor A, as he is apparently entitled to be addressed, a specialist in the treatment of Autism, had devised the curriculum for S’s studies and had been involved with his treatment for a considerable time.
His Honour referred to the wife’s contention that it would be “disastrous” if an area of S’s life which “works well”, being his attendance at school, was lost as a result of the husband’s proposal. He also referred to the submission of senior counsel for the wife that there was a real risk that S would leave the school as a result, creating a situation which would be “impossible to retrieve”.
The reliance of the wife on S’s past reactions to attempts to have him spend time with his father, and the burden on the wife of having to “pick up the pieces if he becomes distressed”, and “added burden of not knowing when this will occur”, upon which the wife relied in opposition to the husband’s proposal were then referred to.
Having recorded the support of the ICL for the husband’s proposal, the trial judge noted the concern of the Independent Children’s Lawyer about “the bona fides of the wife citing her proposal for mediation as one which does not provide a way forward in this case. It will not resolve the impasse”.
The concession of the ICL that the impact on S of his father attending his class was unknown was recorded by the trial judge, as was the ICL’s submission that it was “essential to take any opportunity to bring father and son together”. A number of positive factors relied upon by the ICL were recorded by the trial judge. These factors were set out by him as follows:
25.1The husband can be trusted to do the right thing. He is well attuned to the specific needs of [S] and is fully cognisant of his condition. The wife in her affidavit raises the issue of the safety of [S], but that has never been an issue vis-à-vis the husband.
25.2It is not proposed that the father will confront [S] in the classroom. On the first occasion he will simply turn up and watch the class in operation. He may even give a short talk to all of the students. It is hoped that from that small beginning progress will then be made to bring [S] and his father together one-on-one.
25.3There will be supports in the classroom. The school is quite prepared for this to occur, and the class teacher will assist the process. There will also be at least one of [S’s] speech therapists present at the time.
Under the heading “Discussion”, the trial judge recorded his initial concern at the “lack of overt consideration by Dr [C] of the concerns raised by the wife, and by his seeming failure to address what impact this process would have on [S]”.
Notwithstanding the matters relied upon by senior counsel for the wife, His Honour was satisfied that Dr C’s recommendations were well founded, and had taken into account all relevant issues. In support of that conclusion, the trial judge referred to Dr C’s history of involvement in the proceedings, his “expertise which was recognised by both parties in appointing him as the single expert in the first place”, and the fact that he had recorded the concerns of the wife and made his recommendations in the knowledge of the history of the proceedings.
Reference was then made to the absence of success in bringing S and his father together over the previous two and a half years. The trial judge considered the husband’s proposal, which Dr C endorsed, as one which “needs to be tried”. His Honour relied upon the evidence of Dr C that “away from home and at school [S] is able to manage unpredicted changes to his routine” and that the school accordingly provided “an obvious medium to reintroduce [S] to his father”. The trial judge regarded as “a dramatic overreaction by the wife” her concern that the husband’s proposal involved “sacrificing [S’s] education in order to attempt to have him spend time with his father”.
The trial judge concluded that the “low-key introduction that is proposed, and the supports that will be in place, not the least of which is that it is [S’s] father that we are talking about and not some stranger, provide adequate safeguards”.
Having thus concluded that it was in the best interests of S to make the orders sought by the husband, the trial judge proceeded to outline some “limitations” which he proposed imposing on such proposal.
His Honour reiterated the complaint of the wife that she would have to “pick up the pieces and manage any distress” exhibited by S if the proposed contact regime went “awry”. His Honour also reiterated that the wife acknowledged “the need for [S] to spend time with his father”, and that so doing was in the child’s best interests.
The question of whether or not Dr C should be present on at least the first occasion when the father would attend S’s school was then considered. The trial judge concluded that, although a difficult issue, Dr C’s presence at the school on any occasion when the father was present to spend time with S would militate against the environment being kept “as natural as possible”. The availability of S’s teacher and/or speech therapist if necessary during time the husband spent with S reinforced his Honour in that conclusion.
His Honour then articulated what became the three express “limitations” on the husband’s time to be spent with S at the school, in terms not dissimilar to those appearing in the orders that he ultimately made.
The wife’s application for an order that the parties attend mediation was then considered. As his Honour observed:
34.…Now, although the family consultants are also counsellors, because of the lack of resources I would not make an order that one of our family consultants undertake the proposed mediation. It would be a mammoth task.
As his Honour, we think correctly observed:
35.In any event though, I do not consider that mediation is the answer to the problem at hand, and particularly given what the wife says in paragraph 39 of her affidavit referred to above. That is not to say that I would not encourage the parties to use any method at their disposal to resolve their differences, including mediation through an agency or group outside the court.
The Grounds of Appeal
Sensibly in our view, senior counsel for the wife agitated a number of the Grounds of Appeal together. Correctly in our view, senior counsel for the wife conceded that Ground 1 was not a ground in itself, but more in the nature of a summary of the specifically articulated grounds which followed.
Grounds 2 and 3
Grounds 2 and 3 provided:
2.The learned Trial Judge failed to pay any or sufficient regard to the concerns expressed by the wife about the impact and risk of adverse reaction of the father spending time with [S] at school
· upon [S],
· upon [S’s] attendance at school,
· upon the wife and
· upon the relationship between the wife and [S].
3.The learned Trial Judge erred in his finding that the wife’s concerns about the impact of the father spending time with [S] at school and in particular the impact upon his education was a “dramatic overreaction”.
Having referred to the affidavit evidence of the wife which had been before the trial judge, which was submitted to be supported by the observations of S’s therapists, Mr M and Mr SH, senior counsel for the wife contended that the wife’s concerns with respect to the impact of the husband’s proposal upon S could not properly be described or dismissed as a “dramatic overreaction” on the part of the wife. The wife’s concerns were submitted to have been “reality-based and based upon her experiences, and those of [S’s] therapist, surrounding [S’s] time with his father at school”.
It was submitted that the wife’s “perception of the school being a special place” for S was supported by Professor A. In an email to Professor A, Dr C reiterated his proposal “that a graduated programme of brief contacts [by the husband] at school should be attempted, based on a principle of systematic desensitisation. These visits should be arranged with the teacher, but not signalled in advance to [S]”.
In an email in response, Professor A said:
Unfortunately, at this point, I honestly don’t know how much meaningful consultation I can provide you in regards to these broader family matters...I certainly agree with the idea of gradual and highly supported opportunities for [S] to reconnect with his father.
I’m terribly disheartened that this has not yet occurred. While I agree that reconnection is probably best done somewhere other than the family home, I wonder if there might be some other option than the school setting - Some other neutral setting might be preferred in my opinion, but I honestly don’t have a specific recommendation for you as to where that might be.
It was accordingly submitted by senior counsel for the wife that the trial judge had erred in finding that:
It is not a case as the mother would have us believe of sacrificing [S’s] education in order to attempt to have him spend time with his father. In my view that is a dramatic over-reaction by the wife.
The evidence of Professor A was submitted to have precluded such a finding.
On behalf of the husband, it was submitted that the trial judge had taken into account each of the matters to which senior counsel for the wife referred in reaching his conclusion. It was further submitted on behalf of the husband that the trial judge had also taken into account the matters that were likely to reduce the potential for the husband’s proposal to have a negative impact upon S.
It was accordingly submitted:
35.The Learned Trial Judge had adopted a cautious measured and considered approach to the matter. Whilst not acceding to the application of the wife’s counsel that there should be no consideration of the first report of Dr [C] because it had not sought input from the wife and given consideration to the impact that the proposed recommendations would have on [S] adjourned the proceedings to enable Dr [C] to better consider the concerns of the wife.
Counsel for the husband submitted that the trial judge’s conclusion was supported by the evidence of both Dr C and Professor A, the expert opinion evidence of each of whom his Honour had not unreasonably accepted.
A number of submissions made on behalf of the husband were sought to be based upon a judgment given by the trial judge, on the same day as the judgment which gives rise to the present appeal, in proceedings involving an application by the husband for injunctive orders against the wife. Whilst we do not say that there could never be a case where a subsequent judgment might assume some significance in an appeal arising from an earlier judgment in relation to different issues, in the circumstances of this case, we have no regard to anything emerging from the trial judge’s second judgment of 5 November 2009. Whether appellate interference is enlivened or not turns, in the circumstances of this case, entirely upon matters arising from the Reasons for Judgment which gave rise to the orders of 5 November 2009 against which the wife has appealed.
In her comprehensive written submissions, counsel for the ICL reiterated a number of matters which were raised in the submissions of counsel for the husband. It was submitted on behalf of the ICL that Dr C’s evidence that S appeared to be managing well with “unpredicted changes to [his] routine” which occur from time to time at his school was able to be accepted by the trial judge, and provided substantial support for the husband’s proposal.
It was further submitted that it had not been demonstrated that the trial judge had failed to consider any relevant fact or circumstance in the course of exercising his discretion, or based the exercise of such discretion upon erroneous findings of fact.
Whilst, with respect to him, the trial judge may have expressed himself differently, we do not accept that, even if unfairly describing the wife’s attitude, or overstating it, the exercise of the trial judge’s discretion was thereby vitiated.
As his Reasons for Judgment confirm, the trial judge concluded, on balance, that the concerns articulated by the wife, and supported by the evidence of Mr M and Mr SH, and the problematic history of past attempts to have S spend time with his father, did not outweigh the potential benefits to the child of making orders in terms of the husband’s proposal.
Whether the trial judge correctly regarded the wife’s attitude as a dramatic over-reaction was not in our view material to the exercise of his discretion. Given that both parties accepted that it was desirable that S spend time with his father, the issue became, as his Honour clearly identified early in his Reasons for Judgment, “trying to find a balance between the acknowledged need of [S] to have and maintain a meaningful relationship with his father, and the equally acknowledged need to ensure that no psychological harm is caused to [S], and that he is able to continue to attend and progress in his class at school”. Finding that “balance” did not turn upon how the wife’s “reaction” to it was categorised, important though her concerns about what happened, or might happen to S undoubtedly were.
We thus find no merit in this aspect of these challenges.
So far as the complaints that the trial judge failed to “pay any or sufficient regard to the concerns expressed by the wife” about the matters referred to in Ground 2 is concerned, as senior counsel for the wife frankly acknowledged, there are substantial obstacles to success with “weight” challenges of this kind. (See Stephen J in Gronow v Gronow (1979) 144 CLR 513, at 519-20).
The proceedings before the trial judge were interlocutory. None of the evidence before his Honour was tested or sought to be tested. That is not said critically of counsel for the parties, but the reality is that the trial judge did not gain the advantage which traditionally flows from seeing and hearing witnesses cross-examined. (See State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588 (“Earthline”) per Kirby J at 619). As the trial judge’s review of the evidence before him reveals, each party made allegations of fact which were not on their face inherently improbable. Although genuinely held, the concerns articulated by the parties were in the nature of unqualified opinions.
There was expert opinion evidence before the trial judge. Closely scrutinized, the evidence of Dr C, Professor A and the speech therapists, Mr M and Mr SH, was not seriously in conflict. In reality, the concerns expressed by Mr M and Mr SH were expressly accepted by Dr C, and inferentially accepted by Professor A. On any view of the evidence, and particularly given the limitations under which the trial judge was obliged to exercise his discretion, other outcomes could have resulted. However, that is not the test for present purposes.
In order for this challenge to succeed, it must be demonstrated that the trial judge gave disproportionate weight to some or all of the factors relied upon by senior counsel for the wife, or failed to give adequate weight to those factors. To the extent that Ground 2 asserts that the trial judge failed to have any regard to the four matters identified, the challenge cannot succeed. In the course of an understandably short, and commendably cogent judgment, the trial judge referred to each of those matters, some more than once.
The expert opinion evidence of Dr C, supported by Professor A, and not in conflict with the evidence of Mr M and Mr SH, and the absence of countervailing expert opinion evidence, provided the trial judge with a sufficient evidentiary foundation for the conclusion he reached.
In what was clearly a finely balanced determination, the cumulative effect of the potential benefits for S of the orders proposed to be made by the trial judge was able to be seen as outweighing the significant potential detriment for the child inherent in doing so. No relevant countervailing factor has been shown to have been ignored by the trial judge. It has not been established that any factor taken into account by his Honour was either afforded impermissibly little or impermissibly substantial weight.
We are accordingly not persuaded that these challenges have merit.
Grounds 4, 5 and 6
Grounds 4, 5 and 6 provided:
4.The learned Trial Judge gave undue weight to the reports of Dr [C].
5.The learned Trial Judge erred in his finding that whilst, prima facie, Dr [C’s] last two reports were “open to criticism” but that be a product of his report writing technique and that “the criticisms fall by the wayside”. The learned Trial Judge failed to give adequate or alternatively he gave inadequate reasons as to why he accepted and relied upon the recommendation of Dr [C].
6.The learned Trial Judge failed to give any or any sufficient weight to the fundamental flaws in the report of Dr [C] and the criticisms expressed on behalf of the wife in respect of such report.
These challenges are directed in part to the weight given to the expert opinion evidence of Dr C and in part to the asserted failure of the trial judge to provide adequate reasons for accepting and relying upon the recommendation of Dr C.
It is convenient to deal first with the second aspect of these complaints.
As senior counsel for the wife confirmed during the hearing of the appeal, the crux of the challenge to the adequacy of the trial judge’s reasons with respect to Dr C’s expert opinion evidence is that, whilst his Honour recorded his initial concern “at the lack of over consideration by Dr [C] of the concerns raised by the wife, and by his seeming failure to address what impact this process would have on [S]”, and his recording that he was “now satisfied that Dr [C’s] recommendation as to the way forward is well founded and takes into account all issues that are relevant”, his Honour’s reasons give no insight into why his initial concern had thus dissolved.
In the passage which was submitted by senior counsel for the wife to be most capable of revealing that process, his Honour said:
27.Prima facie, Dr [C’s] last two reports are open to criticism, but that be a product of his report-writing technique. In any event when these reports are viewed in the context of his overall involvement in this case, including his previous reports, and his expertise which was recognised by both parties in appointing him as the single expert in the first place, those criticisms fall by the wayside. He has recorded the concerns of the wife, and in the knowledge of the history of this matter, he has then set out what he considers to be the appropriate approach.
We are not persuaded that the trial judge failed to adequately explain why he ultimately accepted that Dr C had taken into account all relevant issues in formulating the recommendations contained in his second report. Our reasons for so concluding can be shortly expressed.
Early in his judgment, the trial judge referred to his initial refusal to receive Dr C’s first report, and to his direction that “certain things occur”, including “that Dr [C] speak to the wife, ascertain her concerns and take them into account in a further report”.
A reading of Dr [C’s] first report confirms that the report was prepared in the absence of any discussion between Dr C and the wife, and was said to be “based on events that occurred at [P School] on Friday July 31at the end of the school day”, and on telephone conversations between Dr C and the husband, and Dr C and the principal of P Pre-School, Mr NA, in the days prior thereto.
After referring to a number of matters which Dr C recorded as having been advised to him by the principal and both of S’s speech pathologists, Dr C recommended a proposal in substantially the same terms as he recommended in his subsequent report.
Having regard to the limitations on Dr C’s report, of which the trial judge was clearly aware, ordering the further report could only be seen as a reflection of his concern that there be evidence in relation to the matters which were of concern to the wife.
Dr C’s subsequent report referred to his interview with the wife at her home in September 2009. That interview involved discussion with the wife and her sister in the presence of the wife’s brother. Dr C described the meeting of one and a half hours duration as “amicable and productive”.
In addition to the meeting with the wife in September 2009, Dr C, by the time of his second report, had the benefit of Professor A’s response to his email of 24 September 2009.
In the course of his second report, Dr C recorded:
Mrs [Strahan] clearly indicated that she was opposed to Mr [Strahan] coming to [S’s] school informally in order to re-establish contact. She argued that [S] would get distressed and might have an outburst or episode in front of his classmates. She was fearful that the other children would talk about this with their parents, and that this would be embarrassing. She thought that this would potentially undermine [S’s] place at [P School] through some sort of parental backlash. She was concerned also that such an incident would “set [S] back”.
Significantly for present purposes, Dr C also recorded:
d)A telephone interview with Mr [M] emphasised his belief that it is important not to disturb [S’s] sense of the stability and routine of the classroom. He suggested that contact should occur with his father after school. He was optimistic that the parents could work together to make this happen.
In our view, as his Reasons for Judgment reveal, the trial judge was ultimately persuaded by the matters to which he had referred, and which we have reiterated, that Dr C’s recommendation was “well founded”, and took into account all relevant issues given the contents of his second report. As is apparent from reading the two reports, Dr C’s recommendation did not change significantly from the first to the second report.
We are thus not persuaded that the challenge to the adequacy of the trial judge’s reasons has merit. Why his Honour concluded as he did was adequately revealed by his reasons.
So far as the challenge to the weight given to Dr C’s report is concerned, as we have earlier noted, we have not been referred to any expert opinion evidence, or other evidence, which precluded acceptance of Dr C’s recommendations. As the trial judge noted, Dr C had been uncontroversially appointed by the parties as the single expert in the parenting proceedings. By the date of his second report, Dr C had a significant and established “involvement” in the parenting proceedings.
We have not been directed to any concern raised by the wife to which Dr C did not make reference in his second report. The fact that he may not have set out fully the matters of concern emerging from the wife’s affidavit material and her meeting with Dr C in September, would not lead us to conclude that Dr C had not had regard to those matters. The matters to which Dr C did refer lead us to that view. The substance of the wife’s concerns was clearly considered in the exercise of his Honour’s discretion.
It is to be remembered that the proceedings before the trial judge were interlocutory, and that no application was made to the trial judge to cross-examine Dr C on his reports. Unless the complaint that Dr C’s report contained “fundamental flaws” is made out, the trial judge was not in our view precluded from giving Dr C’s expert opinion evidence substantial or even decisive weight in the determination of the proceedings.
On behalf of the wife it was also submitted that:
The very purpose of the provision of Dr [C’s] second report was for him to see the wife, consult with her about her concerns, consider and take into account her concerns, such that there can be a justifiable basis for any recommendation he (Dr [C]) makes.
It was further submitted that:
…a consideration involves more than reading the affidavit of the wife and a mere recording of some of her concerns, without any analysis, evaluation, or contextualizing of the recommendations made in light of the wife’s concerns and the report of the Principal, upon [S] and the wife.
At trial, as senior counsel for the wife reminded the Court, the asserted “deficiencies” in Dr C’s reports had been articulated. There is no doubt that senior counsel for the wife had then made submissions to the trial judge in terms similar to those agitated before this Court.
Before this Court, it was submitted on behalf of the wife that:
The report does not address, evaluate contextualize, or consider the wife’s concerns at the impact upon [S] of the recommendations, e.g. the pros and cons of the recommendations or assessment of risk factors, how the risk factors can be monitored or addressed or, indeed, dealt with. There is no consideration of the Aquatic Centre incident, the crying at school or the refusal to attend school on the 31st of July 2009 and, subsequently, as a result of [S’s] concerns about handover at school. There is no discussion or evaluation about what may be the impact upon [S], the very issue Justice Strickland acknowledged was a very serious one for [S].
Simply because Dr C may not have expressly referred to any of these matters does not in our view establish that he failed to do so. It may be that, had Dr C been cross-examined, or if he is cross-examined at the final hearing, these assertions may be confirmed, but we are not persuaded by anything to which we have been referred that Dr C failed to have regard to these matters when he prepared his October report.
A number of matters emerge from Dr C’s report which suggest that he did have regard to at least some of the matters complained of.
In his first report, Dr C recorded:
4.I can advise that the Principal and both Speech Pathologists are very pleased with [S’s] ongoing progress in terms of general social adjustment. [S] is participating in all class and school activities, including Chapel, without incident. [S] continues to be in the company of his classmates at recess and lunch times, and appears to be maintaining special friendships with certain of these boys. [S] also appears to be managing well with unpredicted changes to routine that occur from time to time.
No inaccuracy is suggested in that statement.
Dr C also recorded in that report:
5.It is now evident that it is pointless to persist with planned weekend access visits due to [S’s] inability to cope with this kind of change, despite his regular telephone contact with his father. A different approach is called for in order to expedite the urgent objective of reconnecting [S] with his father and his extended family, including the paternal grandparents and his stepmother.
In his second report, as we have earlier noted, Dr C recorded:
Mrs [Strahan] clearly indicated that she was opposed to Mr [Strahan] coming to [S’s] school informally in order to re-establish contact. She argued that [S] would get distressed and might have an outburst or episode in front of his classmates. She was fearful that the other children would talk about this with their parents, and that this would be embarrassing. She thought that this would potentially undermine [S’s] place at [P School] through some sort of parental backlash. She was concerned also that such an incident would “set [S] back”.
Dr C also recorded there that the husband had not seen S since late 2007 except on one occasion:
c) ...
This took pace in the context that Mr [Strahan] has not seen [S] since late 2007 except for one ten minute visit to Mr [Strahan’s] apartment where I was present as ordered by the court. [S] came in with three carers, took some soft drink from the fridge, and left, as observed by me and reported previously.
As we have also earlier noted, Dr C recorded that:
d)A telephone interview with Mr [M] emphasised his belief that it is important not to disturb [S’s] sense of the stability and routine of the classroom. He suggested that contact should occur with his father after school. He was optimistic that the parents could work together to make this happen.
Against that background, Dr C said:
5.…I reaffirm my recommendation that Mr [Strahan] be granted unfettered access to [S] during or after school, without other supervision. This should be subject to whatever arrangements he can make with the class teacher or Mr [NA]. The Speech Pathologist support professionals, Mr [SH] and Mr [M], may be consulted at his discretion. I consider that Mrs [Strahan] should not be notified of such plans.
We are not persuaded that Dr C’s second report was deficient in any of the ways asserted on behalf of the wife.
As for the complaint that “the report is heavy on criticisms”, we do not accept that Dr C’s recommendations “seemingly fly in the face” of concerns raised by Professor A, or either of S’s speech therapists.
Albeit perhaps not unqualified, Professor A’s email provides support for Dr C’s recommendation. We do not accept that the concerns of Professor A and Mr M were totally ignored in the formulation of Dr C’s recommendations.
To the extent that, as clearly he was, Dr C was somewhat critical of the wife in relation to aspects of S’s development, we do not accept that those criticisms, whatever their accuracy, “flawed” Dr C’s report, or otherwise rendered reliance upon it by the trial judge unsafe.
We are accordingly not persuaded either that Dr C’s report was “flawed” or that the trial judge impermissibly relied upon it.
The orders made by the trial judge are not without significance in the context of these challenges. Whilst the orders made by the trial judge implementing Dr C’s recommendations are potentially “open-ended”, as submitted by senior counsel for the wife, it is clear that they were potentially of short duration given that, of necessity, contact pursuant to the orders of 5 November 2009 could only be for a matter of weeks, until the 2009 school year ended.
His Honour expressly ordered that either party could have the issue of the time S was to spend with the husband revisited after 8 December 2009. Against that background, the trial judge’s reliance upon and affording of weight to Dr C’s recommendations becomes even less potentially erroneous than it otherwise might have been.
Ground 7
Ground 7 provided:
7.The learned Trial Judge erred in his finding that the wife “needs to be prepared to do whatever it takes in [S’s] bests [sic] interests to now bring this about” (i.e time spent between [S] and his father) and that the Wife had failed to achieve that (the father spending time with [S]) in the past. The learned Trial Judge failed to give adequate or alternatively gave inadequate reasons for such findings.
This challenge, as the submissions of senior counsel for the wife make clear, relates to paragraph 31 of the trial judge’s Reasons for judgment, which read:
31.The wife complains that if it goes awry then it is she who will have to pick up the pieces and manage any distress exhibited by [S]. My response to that is that we are here talking about satisfying what the wife says she acknowledges, namely the need for [S] to spend time with his father. The wife has not been able to achieve that in the past, but she needs to be prepared to do whatever it takes in [S’s] best interests to now bring this about.
It was submitted that the trial judge had:
… completely failed to appreciate and understand, not only the nature and extent of the wife’s concerns, but the impact upon the wife of not only endeavouring to comply with Orders and ensure [S’s] attendance, but also dealing with the sequelae of the behaviour of [S].
It was further submitted that the trial judge:
… appears to inappropriately shift the blame to the wife for the failure of arrangements for the father to spend time with [S]. It is implicit in his Reasons for Judgment that it is the wife who has not been able to achieve a satisfactory outcome – what of the role of [S], the husband, the inappropriateness of the recommendations of Dr [C] and the Court process itself. These are all matters that can only be considered, on the evidence, in the final determination of the proceedings.
Reference was then made to the affidavit evidence of the wife dated 25 August 2009, her affidavit of 13 October 2009, and to the submissions made on behalf of wife before the trial judge on 20 October 2009.
It was thus submitted:
The learned trial judge has, by suggesting the wife “needs to do whatever it takes”, effectively trivialised the impacts upon the wife and the demands upon her in seeking to comply, not only with Orders, but to deal with the sequalae for [S] and his behaviours.
In our view, this complaint is based upon a number of false premises. It was not in contest that, despite her stated belief that it was important for S to spend time with the husband, the wife had been unable to achieve that in the past. We have not been referred to anything in the trial judge’s reasons which suggests that such failure was considered by him to reflect adversely on the wife. The trial judge’s decision was not reliant upon any inferences adverse to the wife in terms of any past lack of success in relation to attempts to have S spend time with the husband.
Whilst his Honour did say that the wife “needs to be prepared to do whatever it takes” in S’s best interests to now bring about S spending time with the husband, the orders he made expressly absolved the wife from needing to do anything to that end. Indeed, the orders made by the trial judge relieved the wife entirely of any obligation in relation to attempts to have S spend time with his father. The trial judge’s orders imposed no “demands” upon the wife, in terms of “seeking to comply” with court orders. So far as possible, and in accordance with the expert opinion evidence of Dr C and Professor A, the trial judge sought to minimise the potential for any “sequalae for [S] and his behaviours”.
We accordingly find this challenge lacks merit.
Ground 8
Ground 8 provided:
8.The learned Trial Judge erred in ordering that the father’s time with [S] take place in circumstances where the wife was not to be informed about the time that the father was to spend with [S]. The learned Trial Judge failed to give adequate or alternatively gave inadequate reasons for such Order.
As is apparent from its terms, and the submissions in support of it, this ground raises two challenges.
Dr C recommendation in his first report, that S and the wife not be given “advanced notice” of the occasions when the husband could “turn up” at S’s school, was not expressly included in the seven recommendations recorded in Dr C’s second report. Whether that remained one of his recommendations is unclear. What is clear is that the trial judge’s order (1(b)) precluded the wife and S from being “advised of the husband’s proposed attendance at the school”.
It is clear from the trial judge’s Reasons for Judgment that he was aware of the failure of previous attempts to have S spend time with his father. In the affidavits which the trial judge had read, the wife referred to those unsuccessful attempts. His Honour did not refer specifically in his judgment to the reasons why he proposed that the wife and S not be advised of the husband’s proposed visits to S’s school. Nor in our view in this interlocutory judgment did his Honour need to do so, given the material before him, and the reasons why such a course was likely to be in S’s best interests.
The evidence before the trial judge revealed that attempts to have S spend time with his father which involved the wife facilitating such time being spent had been unsuccessful. The evidence before the trial judge provided no rational basis for concluding that future attempts of that kind would be any more successful.
The trial judge relied upon the unchallenged evidence that “at school [S] is able to manage unpredicted changes to his routine” and that the school thus provided “an obvious medium to reintroduce [S] to his father”.
In the light of those matters to which his Honour expressly referred in his judgment, why he concluded as he did cannot be in any real doubt.
In our view, the evidence before his Honour to which we have just referred provided a sufficient foundation for the order which he made. The combination of abandoning a methodology which had been consistently unsuccessful, and seeking to utilize an environment in which S had demonstrated an ability to manage “unpredicted changes to his routine”, was in our view sufficient to justify the order made by the trial judge.
This challenge lacks merit.
Ground 9
Ground 9 provided:
9.The learned Trial Judge failed to give any or any sufficient weight to the views expressed by treating specialist Professor [A] and therapist Mr [M] as to the inappropriateness of school as a venue for time to be spent between [S] and his father. The learned Trial Judge failed to give adequate or alternatively gave inadequate reasons for failure to adopt the recommendations of Mr [M] and Professor [A].
In support of this challenge it was submitted that, whilst the trial judge recorded the views of Mr M, one of S’s speech therapists, and those of Professor A, the trial judge erred in that, “other than expressing his intention to act in accordance with the recommendations of Dr [C]” he gave no other reasons for “failing to further act upon or take into account the views of Dr [A] and Mr [M]”.
It was further submitted that Dr C had failed to discuss or evaluate those views. Ultimately, it was submitted that:
His Honour seems to have adopted the position that, notwithstanding the deficiencies in the report of Dr [C], and notwithstanding there is no analysis, evaluation nor consideration of the issues and concerns identified, His Honour will accept the recommendations without any opportunity, even at an interlocutory level, of testing out the basis for the recommendations. His Honour, himself, in his Reasons for Judgment, does not analyse, evaluate, contextualise or consider the issues and concerns of the wife, Dr [A] and Mr [M], in formulating the Orders he made.
Dr C referred in his second report to a telephone interview with Mr M. Dr C reported Mr M as having then “emphasised” his belief “that it is important not to disturb [S’s] sense of the stability and routine of the classroom”, and suggested “that contact should occur with his father after school”, an approach which Mr M was said to be “optimistic” that the parents could facilitate.
Mr M’s affidavit sworn on 18 August 2009 was limited to observations on a number of specified occasions, the last of them having been at the end of July.
Dr C reported that his exchange of emails with Professor A as indicating:
b)… his agreement with my principle of graduated contact in order to get [S] used to and enjoy his father’s company. He agreed that this would have to take place away from the family home. He also suggested the use of a neutral setting other than the school, but did not explain why, nor offer specific solutions. He concluded “I honestly don’t know what more I can say that will help”.
We perceive no inaccuracy in Dr C’s summary of Professor A’s email, which was attached to Dr C’s report.
Having regard to his Honour’s reference to the opinions of Mr M and Professor A in relation to the possible venues at which an attempt could be made for S to spend time with the husband, it cannot in our view be successfully asserted that the trial judge failed to give any weight to those expert opinions. Not accepting expert opinions involves having first considered them.
The trial judge referred to the concession of counsel for the ICL that the impact on S of his father attending his class was “unknown” and referred to the factors asserted by counsel for the ICL in support of her submission that so doing would not “necessarily be a negative impact”.
The factors to which his Honour referred included, that the husband could be “trusted to do the right thing”, that he was “well attuned to the specific needs of [S] and is fully cognisant of his condition”, that the wife had never raised an issue of S’s safety “vis-à-vis the husband”, that it was not proposed that the father would “confront [S] in the classroom” but rather “hoped that from that small beginning progress will then be made to bring [S] and his father together one-on-one”, that there were “supports in the classroom”, and that “at least one of [S’s] speech therapists [would be] present at the time” and the school’s preparedness for this to occur.
As the following paragraphs of the trial judge’s “Discussion” of the critical issues reveal, he was acutely aware of the difficulties surrounding the orders proposed by the husband in reliance upon Dr C’s second report. The “limitations” which the trial judge imposed, and reasons for them reinforce that impression.
Whilst it is correct to submit, as senior counsel for the wife has, that both Mr M and Professor A preferred that any attempt at “reconnection” might better be attempted other than in the “school setting”, no suggestion of an alternative venue was made by either of them.
It is to be remembered that, despite the wife having deposed in her affidavit to having suggested that the husband attend at her home in order to attempt to spend time with S, the wife’s formal stance, as evidenced by her response to the husband’s application, and not altered during the course of the hearing before the trial judge, was that the child not spend any time with his father pending a final hearing of the proceedings or a mediated resolution of the issue.
With respect to senior counsel for the wife, the criticism leveled at the trial judge in this ground is somewhat disingenuous. Whilst asserting that the husband should spend time with S but not at his school, neither the wife nor her counsel, nor any expert, suggested where else that might be attempted.
The expert opinion evidence was overwhelmingly in favour of an attempt being made to “reconnect” S with his father. In the circumstances, there was no reason for the trial judge to consider, or give reasons for concluding that the husband’s attempt to spend time with S should be other than at his school.
In the absence of any suggestion of an alternate venue, and there was no such suggestion, the only option reasonably available to the trial judge was at the child’s school. It was there or not at all that an attempt to reunite S and the husband could be attempted. In the course of his Reasons for Judgment, his Honour carefully considered, within the constraints of the evidence before him, the positive and negative aspects of so doing, ultimately concluding, on balance, that the potential benefits of the arrangements proposed by Dr C outweighed their potential detriments.
In our view, in the light of the foregoing, his Honour was entitled to conclude as he did. Similarly, given that the issue before the trial judge was whether an attempt should be made at the school or not at all, no other venue being suggested, his Honour had no reason to discuss the possibility of other venues. His Honour was clearly obliged to carefully consider the implications of an attempt at spending time at S’s school. This he did in a manner which has not been shown to have involved any failure to consider any relevant fact or circumstance.
This challenge fails.
Ground 10
Ground 10 provided:
10.The learned Trial Judge erred in his findings that his proposed limitations upon the father’s time with [S] were appropriate and/or were adequate to ensure the safety of [S]. The learned Trial Judge failed to give adequate or alternatively gave inadequate reasons for such findings.
In support of this challenge it was submitted that:
The limitations imposed by the trial judge did not correlate with the limitations proposed by the Independent Children’s Lawyer, nor even those of Dr [C], for that matter, referred to in paragraph 6 of his report of the 9th of August 2009 at page 281 of the Appeal Book.
Paragraph 6 of Dr C’s report of 9 August 2009 read:
6.I recommend instead that Mr [Strahan] be encouraged to spend time informally in [S’s] classroom at times convenient for both Mr [Strahan] and for the class teacher. He should simply “turn up” following telephone arrangements with the class teacher, and watch the class in operation. He could also be invited to give one or more short talks to the class in his areas of expertise, in consultation with the class teacher. [S] and Mrs [Strahan] should not be given advanced notice of these events. These visits, starting briefly and building up progressively, should allow Mr [Strahan] to take advice from [Ms P], Mr [M] and Mr [SH] on how to proceed. Once “baseline familiarity” is re-established the possibility then exists for Mr [Strahan’s] participation in other activities at the discretion of the class teacher. This might include [S] showing Mr [Strahan] around the school, going for a walk at lunch time etc. Any such events should occur without third party supervision of any kind.
On behalf of the wife, it was also submitted further that:
The attitude of the school in the letter from Mr [U] of the 20th of October 2009 at page 268 of the Appeal Book, simply recorded that the school would facilitate the time the husband was to spend with [S] as may be arranged between the father and [S’s] teachers.
Mr [U] said:
…
I confirm that [P School] will facilitate the father spending informal time with [S] at School, as maybe arranged between the father and [S’s] teachers, from time to time.
I confirm that I require a Family Court Order in these terms.
It was submitted that the limitations proposed by the trial judge “do not address at all the issues and concerns of the wife as to the potential impact upon S, and difficulties that may flow thereon”.
With respect to senior counsel for the wife, this contention is unsupportable. As our discussion of earlier challenges reveals, the trial judge carefully considered the “issues and concerns of the wife as to the potential impact upon [S]” of any orders which might be made. As is not in doubt, the trial judge requisitioned a second report from Dr C because of the deficiencies he perceived in that regard in Dr C’s first report.
The complaint that the trial judge did not “identify how it was that these limitations would ensure the safety and well being of [S] and [S’s] best interests, given the nature and seriousness of the concerns of the wife”, in our view ignores the reality that, given the findings of fact which he made, the limitations imposed by the trial judge both identified and addressed the concerns which he accepted required additional consideration and the imposition of “limitations”.
It is not without significance that the submissions on behalf of the wife in support of this challenge do not identify any additional “limitations” which the trial judge should have imposed.
On behalf of the wife, it was further submitted that:
The effect of the Orders of the trial judge is to give the husband effectively time with [S] on an indefinite ongoing basis twice per week, at school, as he may agree with the Principal.
Whilst that may be the effect of the orders, we are not satisfied that it is necessarily so. As is not in doubt, the trial judge’s orders could only operate during school term. The 2009 school year would have ended within a matter of weeks of the trial judge’s orders. School would not resume until the end of January or the beginning of February 2010.
Order 3 clearly enabled either party to re-visit the trial judge’s orders after 8 December 2009, and prior to the commencement of a new school year. The logic underpinning the trial judge’s order is not in doubt. In reality, though not expressly stated, for practical purposes the order offered the wife a second chance to terminate the orders made on 5 November 2009 with respect to S spending time with the husband.
Ultimately it was submitted on behalf of the wife that:
The determination of what is in [S’s] interests (in the context of his time to be spent with his father), is abdicated to the Principal and the husband. There is no requirement even for the views of the therapist or school teacher to be sought, nor any requirement that they be present in the classroom or school grounds. The only limitation is that the husband is not to remove [S] from the school grounds.
Whilst, superficially, there may be some force in this submission having regard to the terms of the trial judge’s orders, the submission assumes an absence of good faith on the part of the husband, the school Principal and S’s speech therapists. It cannot in our view be successfully asserted that any attempt for the husband to “reconnect” with S at his school would not be able to be terminated, and in fact be terminated by any of those other persons. Assuming, which we would not, and there was no evidence of, that the husband might endeavour to continue attempting to spend time with S at the school when S was becoming distressed, we would understand the school Principal to have both the duty and authority to terminate such session, and require the husband to leave the school premises.
It is not without significance that there has been no challenge to the trial judge’s conclusion that the husband could be “trusted to do the right thing” in relation to S nor that his Honour found, or that there was any evidence obliging him to find, that the husband would be other than responsive to suggestions or directions given or made by the school Principal and/or S’s speech therapists in the event of S becoming distressed.
This challenge fails.
Ground 11
Ground 11 provided:
11.The learned Trial Judge erred in making the orders for [S] to spend time with his father on an interlocutory basis without the opportunity to fully test the opinion and conclusion of Dr [C] and the potential impact of such time at school upon [S] and the wife, which are matters more appropriately to be determined upon the final hearing of children’s issues.
Although, read literally, this challenge may have appeared to assert that the trial judge should not have made any orders at all, but rather adjourned the proceedings to a final hearing at which evidence could be tested, senior counsel for the wife confirmed that the challenge did not extend that far. With respect, that concession was appropriate, given that no one ever suggested to the trial judge that he ought not determine the competing applications before him. Put simply, the trial judge was required by the parties to do the best he could on the limited evidence he had.
The evidence before the trial judge was undoubtedly “untested” as senior counsel for the wife submitted. No application to the trial judge to test any evidence was made. His Honour cannot in our view be criticised for proceeding on untested evidence when both parties requested him to do so.
We do not accept that “the history of the matter, the serious issues and concerns raised by the wife, Dr A and Mr M, coupled with the failure of the report of Dr C to consider, evaluate or contextualise these issues and concerns” resulted in the exercise of his Honour’s discretion miscarrying.
Other than making that broad assertion, nothing raised in support of this challenge has not, in one form or other, been the subject of earlier grounds which we have considered and rejected.
Ultimately, it was submitted on behalf of the wife that:
In the circumstances, with the history of [S], his needs and the extent of his disability, an order of this nature should not have been made on an interim basis, given the potential to have serious and far reaching impact upon [S], his relationship with the wife, and his schooling. It is the type of Order, on the information and evidence available, which should not have been made on an interim basis, and should only have been made, if at all, after proper consideration on evidence and cross-examination, and after the wife had
been given the opportunity to fully test the opinions and conclusions of Dr [C].
With respect to senior counsel for the wife, we do not accept that that the trial judge could not have made the orders that he did in the absence of cross-examination of witnesses. For the reasons which we have earlier advanced in rejecting other challenges, we do not accept that the trial judge failed to properly consider the evidence before him.
This challenge fails.
Ground 12
Ground 12 provided:
12.That the learned Trial Judge erred in dismissing paragraph two (2) of the Response filed by the wife on 13 October 2009 for the parties to attend mediation and failed to give any or any sufficient regard to the wife’s submissions for the parties to attend mediation.
The bases upon which we have rejected the various challenges to the orders made by the trial judge which were agitated before us are relevant to this challenge and render it unnecessary to refer in detail to this complaint. As we have earlier noted, the trial judge expressly considered this issue in his Reasons for Judgment.
Nothing to which we have been referred establishes that his Honour erred in concluding as he did with respect to the wife’s application that the parties attend mediation, especially the nature of the order sought. The findings of fact made by the trial judge amply supported his conclusion that mediation was not “the answer to the problem at hand”. We agree with the trial judge that the wife’s own evidence, to which we referred, was also supportive of that conclusion.
Conclusion
No ground of appeal having been established the appeal will be dismissed.
Costs
It was conceded by senior counsel for the wife that they could not resist an order for costs.
I certify that the preceding one hundred and seventy nine (179) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 23 April 2010
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