Strahan and Strahan (No. 10)

[2008] FamCA 1228

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN (NO. 10) [2008] FamCA 1228

FAMILY LAW – PRACTICE AND PROCEDURE – Ex tempore reasons

Family Law Act 1975 (Cth)

APPLICANT: Ms Strahan

RESPONDENT: Mr Strahan

INDEPENDENT CHILDREN’S LAWYER: Ann Bills

FILE NUMBER: ADF 228 of 2005

DATE DELIVERED: 5 December 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 5 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Pyke QC with
Mr Holland

SOLICITOR FOR THE APPLICANT: Pederick Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Ackman QC with

Ms McMillan

SOLICITOR FOR THE RESPONDENT: Robinson and Mason

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mrs West

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Ann Bills & Associates

Orders

1. That paragraph 4 of the Application in a Case filed by the husband on 20 June 2008 and paragraph 6 of the Response filed by the wife on 18 July 2008 be adjourned for further consideration to 9:15am on 22 December 2008.

2. That in relation to the Application in a Case filed by the wife on 3 December 2008 leave is granted to the wife to amend that application to include an application seeking an order by way of interim maintenance in the same terms as sought in the application by way of urgent maintenance, and that application is adjourned to 9:15am on 22 December 2008.

3. That the husband file and serve a Response and supporting affidavit to the Application filed by the wife on 3 December 2008 by 9:15am on 22 December 2008.

4. That within 14 days of the date hereof the parties exchange documents setting out the final orders that each of them seek in relation to the child issues and forward a copy of those documents to my associate.

5. That the affidavit of evidence in chief of the husband in relation to the child issues and the affidavit of evidence in chief of Ms AW be filed and served by 4:00pm on 19 January 2009.

6. That the affidavit of evidence in chief of the wife in relation to the child issues and the affidavits of evidence in chief of Dr A, Ms MS, Mr SH, Mr M, Mr MC, Mr GC, Ms HN, Dr MG, Mr NA and Mr F be filed and served by 4:00pm on 19 January 2009.

7. That the Independent Children’s Lawyer file and serve the affidavit of Ms H by 4:00pm on 19 January 2009.

8. That the Independent Children’s Lawyer file and serve an affidavit annexing an updated family assessment report of Dr C by 4:00pm on 29 January 2009.

9. That each party be at liberty to provide to the Independent Children’s Lawyer a written memorandum to be passed onto Dr C for the purpose of Dr C completing his updated report.

10. That the orders made on 14 November 2008 be varied as follows:

    (a)    in lieu of paragraph 2 the child … born on … June 1996 spend time with the husband as follows:

    (i)       from 6pm on 5 December 2008 until 8pm on 6 December 2008;

    (ii)     from 12 noon on 21 December 2008 until 7pm on 22 December 2008;

    (iii)    from 12noon on 2 January 2009 until 12pm on 5 January 2009;

    (iv)     from the conclusion of school on 30 January 2009 until the commencement of school on 2 February 2009.

    (b)   in lieu of paragraph 3, for the purpose of the said child spending time with husband:

    (i)       on 5 December 2008 the said child be delivered by Mr SH and the wife to the husband’s apartment at O and be returned by the husband to the wife’s residence at B on 6 December 2008;

    (ii)     on 21 December 2008 the said child be delivered by Mr SH and Mr M or such other therapists not being relatives of the wife agreed upon between the parties to the husband’s apartment at O and be returned by the husband to the wife’s residence at B on 22 December 2008;

    (iii)    on 2 January 2009 the said child be delivered by Mr SH and Mr M or such other therapists not being relatives of the wife agreed upon between the parties to the husband’s apartment at O and be returned by the husband to the wife’s residence at B on 5 January 2009;

    (iv)     the husband collect the said child from P School on 30 January 2009 and return him to P School on 2 February 2009;

    (v)      Mr SH shall remain present with the child for the entire period of time spent by the child with the husband from 5 December 2008 until 6 December 2008;

    (vi)     for the period of time spent by the child with the husband commencing on 21 December 2008 Mr SH, Mr M or such other therapist not being a member of the wife’s family agreed upon by the parties shall remain present until such time as the husband requests the therapist to leave but in any event the therapist is to remain for the first hour;

    (vii)    one of the therapists who delivers the said child to the husband on 2 January 2009 shall remain present with the said child until such time as the husband requests the therapist to leave but in any event the therapist is to remain for the first hour of the time that the child spends with the husband;

    (viii)     the wife shall not be present at the handovers conducted on 21 December 2008, 2 January 2009, 30 January 2009 or 2 February 2009 and the wife is to ensure that no relative of hers is present on those occasions either;

    (ix)     the wife shall ensure that no relative of hers is present at the handovers conducted on 6 December 2008, 22 December 2008 or 5 January 2009.

11. That the husband have leave to issue a subpoena to Dr MG to produce his notes, such subpoena to be returnable before the Honourable Justice Strickland at 9:15am on 22 December 2008.

12. That the wife have leave to issue a subpoena to Dr C to produce his notes, such subpoena to be returnable before a Registrar at 9:30am on 29 January 2009.

13. That the wife have leave to issue subpoenas to Mr NA and Mr F to give evidence, such subpoena to be returnable at 10:00am on 2 February 2009.

14. The question of both parties’ costs be reserved to the adjourned hearing.

15. That this case be adjourned generally to 9:15am on 22 December 2008 with a time estimate of 45 minutes.

16. That the husband’s solicitors have leave to attend that hearing by telephone.

17. That pursuant to Section 62B and Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 228 of 2005

MS STRAHAN

Applicant

And

MR STRAHAN

Respondent

EX TEMPORE REASONS

1. This matter was listed before me today on a number of topics.  The first topic was to ascertain from the single expert witness Ms E when her further final report would be available after having received extensive submissions and questions from both parties. 

2. Ms E informed me that she has considered all that the parties have put to her and indeed she supplied a response to that only in the last day or so.  Thus she is now in the position where she can complete her report insofar as it relates to the valuation of the husband's interest in the so‑called punters club.  She tells me that she can complete that report and have it filed by 17 December.

3. Her first report, which deals with all other entities, has been filed, and that was done only this week, namely on 2 December 2008. 

4. Both counsel ultimately have put to me that there may be a need to ask further questions of or raise further issues with Ms E once her further report is received.  However I want to keep as strict a control of that as I can.  As I indicated, I made an order suspending the relevant Rules of Court as they apply to expert witnesses but, given that the parties have not had the opportunity to consider the final reports of Ms E, they must have that opportunity to raise issues, subject to my control though.

5. Accordingly, I propose to adjourn that issue to 22 December at 9.15 am South Australian time, by which time the further report of Ms E will be available.  At that time I will look to address with the parties any issues that they want to raise and look at how they can be attended to as expeditiously as possible.

6. The next topic related to any outstanding issues that the parties had from the husband's application filed on 20 June 2008 and the wife's response filed on 18 July 2008.

7. In respect of the husband's application, the outstanding issue relates to paragraph 4 and in respect of the wife's response, paragraph 6.  Both counsel asked me to adjourn those matters.  They are still live and may be pursued, and thus I propose to adjourn further consideration of those applications to 22 December 2008 as well.

8. The next topic that I addressed was the preparation of the matter insofar as it relates to the child issues on the basis of the trial commencing on Monday, 2 February 2009.  To repeat, I am still keen for all matters, including the property settlement issues, to be heard in February, but it seems to me that, if that cannot occur, there should be no reason why the child issues could not be dealt with at that time.

9. Thus I have proceeded on that basis, looking to make orders for the preparation of the matter to commence in that first week of February.  However, if it does come to pass that the property settlement issues cannot be dealt with and heard finally in February, then that will create some flexibility with my diary such that, for example, the child issues could be heard towards the end of February rather than early February, and that will accommodate a particular difficulty that Mr Ackman has and also will give everyone more time to prepare their affidavits and have the matter ready to start.

10. Today I still propose to proceed on the basis that 2 February is the day when the trial will commence, and I will make orders in a moment for the filing of affidavits and the like and the obtaining of updated reports to ensure that that occurs.

11. The next topic is that the wife filed an application on 3 December 2008 seeking an order by way of urgent spousal maintenance.  Mr Holland sought leave - and I gave him leave - to amend that application so that it also seeks, as an alternative, interim maintenance in the same terms.  As to when that application can be heard, I have indicated I have no availability to do so in the short term, and I propose to nominally adjourn it to the commencement of the trial.  Then, when and if gaps open up in my diary, I would look at listing it at short notice, but of course the husband has to have the opportunity to respond.  Given that this case is on for mention again before me on 22 December, I am going to make an order that he file his responding affidavit by that date.

12. The next topic that I addressed was the issue of the property settlement trial, and obviously Ms E’s reports loom large in the preparation for that trial.  The parties have filed affidavits of evidence‑in‑chief, but there is a need to update those affidavits.  The wife has recently filed a financial statement, but the husband has not done so for some time.  There is a need, obviously, to have at least the husband file an updated financial statement for the purposes of the trial.

13. In terms of other valuations, there was an order that I made providing for the updating of valuations that have already been done, those valuations being of various items of real estate, both in Australia and overseas, and also items of personalty, both in Australia and overseas.  The order that I made was that those updated valuations be filed and served by 31 December 2008.

14. I was informed of three particular issues that have arisen in relation to completing those updated valuations.  I am assured by counsel, though, that those issues can be resolved between the parties and that I can be confident that that can occur such that, on 22 December when I address that issue again, there will be nothing outstanding, save and except maybe a delay in the obtaining of one or other of the valuations, given the problems that have developed.  Thus I do not propose to make any order about that. 

15. Separate to that is the issue of witnesses in relation to the property settlement trial.  Apart from the husband and the wife, Ms E will obviously be available for cross‑examination.  Beyond that, the key, as I understand and appreciate, will be the final report of Ms E, and thus I would want to address that issue on 22 December once everybody has had a chance to consider Ms E’s report.

16. Next - and this is proving to be one of the most contentious issues and one of the most difficult issues that have arisen today - is that I made an order on 14 November 2008 for the parties’ child to spend time with his father, the first occasion commencing on 21 November 2008 and providing for subsequent occasions stretching into and including the last weekend of January 2009.

17. Unfortunately, the husband has been ill and he has not been able to take the opportunity of spending time with the child on that first weekend, which was 21 November and 22 November.  That has led to the need to look at a variation of that order, and some of the issues have been agreed and some have not.

18. Subject to a matter I will deal with in a moment, what was agreed was that, in effect, the first occasion, instead of being, as it was, the weekend commencing 21 November, would now be the weekend commencing 5 December, namely today, and the proposal was just to shift everything back and apply the same conditions to each occasion of time to be spent.

19. But two issues have emerged, one which has now been able to be sorted out, namely whether there should be, for want of a better description, a make‑up period of time inserted for the child to spend time with his father on the basis that he was not able to in that first proposed weekend of 21 November - 22 November.  It is now agreed that there can be a further occasion of time spent on 21 and 22 December 2008.

20. The second issue is that during the course of the hearing I have been informed from the bar table that difficulties have arisen with the child today, and there is a question mark - those are my words - over his current state.  I am told that he is distressed and there is a real concern as to whether he will be able to spend time with his father commencing this afternoon.  No evidence has been presented to me though and everything I have heard and what I relay now has been put to me from the bar table by counsel.  I have obviously concentrated on what counsel for the Independent Children's Lawyer has told me, but I seem to be getting the same story from her as from the mother's legal representatives and the father's legal representatives.  There is no dispute that the child has become distressed today.  The questions are his level of distress and what then should be done about that.

21. The other difficulty is that the child is not at school and he is at home with his mother as a result of incidents that occurred, and the child’s state deteriorating at the Aquatic Centre earlier today.  I am not sure when - this morning or this afternoon – and I have not been told.  Be that as it may, it is not now possible for the father to collect the child from school today, which, apart from the child’s distress, is an issue in itself, given that that was intended to be, hopefully, a new way forward with this matter to ensure that the child did spend time with his father.  But that opportunity is now lost.

22. The child, as I say, is home with his mother, and the question is what should now happen.  The father is here and anxious to spend time with his son this weekend, and it would be on the basis of sometime this afternoon or this evening until 8:00pm tomorrow, Saturday.

23. Ms Pyke and Mr Holland, who represent the mother, have had difficulty in obtaining instructions, because of their client initially attending a funeral today and, secondly, now attending to the child and his distress, he being home with his mother.  Mr Ackman's client has instructed him that he wishes still to take the time with the child, and his proposal is that the child be delivered to his apartment by the therapist Mr SH who has arranged to spend all of the time that the child was to spend with his father with them, and that delivery take place by taxi.  The reason for that is that Mr SH apparently needs another person to transport the child because of his distress and historically the child not necessarily being able to be controlled by one therapist.

24. That is what the father wants me to put in place now.  As I say, Ms Pyke and Mr Holland do not have instructions about that, save and except to confirm the distress of the child and the query as to what now should happen in those circumstances.  Mrs West is supporting this occasion of time spent still occurring.  Her proposal is not that a taxi be used but some sort of hire car, to perhaps create a better environment for the child to be able to travel to his father's apartment.

25. The other option which has been discussed but which is not actually promoted as the first option, certainly, by the father and is not promoted as the first option by the Independent Children's Lawyer, but is an option that is put to me as the last resort option, is that the mother and Mr SH deliver the child to the father's apartment.

26. In my view, there should still be an order put in place for the child to spend time with his father commencing today and continuing into tomorrow.  In the circumstances, though, I consider that the most appropriate way to proceed is to have the mother involved in the handover.  I understand why counsel for the Independent Children's Lawyer submitted otherwise and why Mr Ackman has submitted otherwise, but I consider that, despite the problems that have existed in the past with that sort of arrangement and despite the conflict that exists - and continues to exist - between the parents, in the circumstances that have developed today, if this is going to work at all, the mother should be involved in any handover.

27. Thus I propose to vary my order of 14 November 2008 along those lines and to also make variations to it to bring in the changes that have been raised with me today.  I note that I will need to make a variation to that part of my order which provided for, for example, a therapist to deliver the child to the husband on 2 January.  If the situation is that Mr SH cannot do it by himself, then I will need to vary that such that two therapists conduct that handover.  But I propose to work through that order of 14 November, and indeed make new orders, to hopefully make it clearer as to what variations I have made.

28. The final topic is that I raised with the parties s 69ZT of the Family Law Act 1975. The issue is whether, in this case, all of the rules of evidence should apply or not. The child issues are being dealt with under Division 12A of the Family Law Act 1975 and, as such, s 69ZT provides for certain rules of evidence to not apply. I have the power, though if there are exceptional circumstances, to apply the rules of evidence, or all of them. There is no application before me about this and I propose to revisit it on 22 December, being the date to which this matter will be generally adjourned.

I certify that the preceding 28 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 5 December 2008.

Associate