Strahan and Strahan (No 5)

[2009] FamCA 847

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN (NO. 5) [2009] FamCA 847

FAMILY LAW – PRACTICE AND PROCEDURE – application by the wife seeking an adjournment of the proceedings due to ill health – application opposed by the husband and the Independent Children’s Lawyer – application dismissed

FAMILY LAW – PRACTICE AND PROCEDURE – where the solicitor for the wife sought leave to withdraw on the basis that she had no instructions – leave to withdraw refused

FAMILY LAW – CHILDREN – interim proceedings – with whom a child spends time – where the child has not spent time with the husband since December 2007 – whether handover should be facilitated by the expert psychologist – whether the expert’s independence may be compromised – order for the child to spend time with the husband – handover at commencement of the husband’s time to be facilitated by the psychologist

FAMILY LAW – PRACTICE AND PROCEDURE – case management – all outstanding applications adjourned

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: 19 May 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 19 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms D Pederick

SOLICITOR FOR THE APPLICANT: Pederick Lawyers

COUNSEL FOR THE RESPONDENT:

Mr N Ackman QC with

Ms McMillan

SOLICITOR FOR THE RESPONDENT: Robinson & Mason

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mrs V West

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Ann Bills & Associates

ORDERS

1. That the application by the wife to adjourn today’s proceedings be dismissed.

2. That the child … born on … June 1996 spend time with the husband from the conclusion of school on Friday 31 July 2009 until 5:00pm on Sunday 2 August 2009 upon the following conditions:

   a.   That the husband collect the said child from P School at the conclusion of school on 31 July 2009 and return him to the wife at her residence at B at the conclusion of the time to be spent.

   b.   That in the event that a carer or therapist who is not a member of the wife’s family is present with the said child at school on 31 July 2009 that therapist or carer is at liberty to remain with the said child for the first hour of the time to be spent by the child with the husband and to remain with the said child for longer than one hour if requested to do so by the husband.

   c.   That the psychologist Dr C facilitate the handover of the child to the husband at P School in the event that that is necessary.

   d.   That the handover at the conclusion of time to be spent be conducted only between the parties.

   e.   That the husband immediately return the child to the mother if it becomes necessary for him to do so during the time that the said child is spending time with him.

3. 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.

4. That Dr C provide a report as to his observations of the handover on 31 July 2009 such report to be filed and served by 17 August 2009.

5. That the further hearing of the interim application in relation to the time that the said child is to spend with the husband be adjourned to 10:00am on Wednesday 26 August 2009.

6. That all other applications and responses be adjourned for mention to 10:00am on 26 August 2009.

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)

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 today for the hearing of the respective - and I will call them applications for the moment - in relation to the child.  In terms of the formal applications, they are the further amended application in a case filed by the wife on 15 January 2009 and the response filed by the husband on 25 February 2009.

2. Separate to that, though, each party has filed affidavits dealing with what orders should be made in relation to the child, and also there were submissions put to me on the last occasion by the independent children's lawyer in relation to the recommendation made by Dr C to try and ensure that the child spends some time with the father.

3. The prospect of this matter being listed for hearing was dealt with on 8 April 2009, when I refused an application to adjourn.  The wife on that day made an application to adjourn not only this matter but also all applications that were listed for hearing on that day.  I granted the adjournment of what I termed the financial applications but I refused to adjourn the hearing of the applications in relation to the child.  I then made orders, on an interim basis, which provided for the child to spend time with his father on 12 April 2009 and 16 and 17 May 2009.

4. I determined though to adjourn the matter to 4 May 2009, given that by then the first occasion - namely 12 April 2009 - would obviously have occurred, and I flagged that, depending upon what the situation was at that time, I would be looking to list for hearing the ongoing applications in relation to the child on 19 May 2009. 

5. On 4 May 2009 I was told that the child did not spend time with the father on 12 April 2009.  There was a dispute as to why that was, which I did not go into then and I have not gone into yet today.  As I had foreshadowed, on that day I then listed the hearing of the issues in relation to the child to today, and I gave leave to both parties to file any further affidavit in relation to those matters by 4:00pm on 18 May 2009.

6. Both parties have filed affidavits which tell me, from their respective perspectives, what has happened in relation to my orders and generally in relation to the child since 9 April 2009.

7. Today, when the matter was called on, Ms Pederick appeared for the wife.  Initially I attempted to have Ms Pederick indicate what application she was making.  It took some time but eventually Ms Pederick made an application, and that is the application I am now dealing with, to adjourn the proceedings listed for hearing today - namely, those in relation to the child - for a period of three and a half weeks for mention on the ground of the wife's ill health.  In that regard I have been provided with a medical certificate by a Dr I which is dated 18 May 2009 and which says:

   To whom it may concern.  This is to certify that I have examined [the wife] today and I confirm that she will be unfit for work/school/usual activities from 18 May 2009 to 3 June 2009 inclusive.

8. That application is opposed by the husband and it is also opposed by the independent children's lawyer.

9. The situation in relation to the child is that, despite my orders, he did not see his father or spend time with his father on any of 12 April 2009, 16 May or 17 May 2009.  Thus the situation remains that the child has not spent time with his father for a significant period of time.  As I have said in the past, and I do not intend to repeat all that I have said, that is a sad and unfortunate circumstance, given that there is no issue, as far as I am concerned - and I have made this finding - in terms of the husband's ability to care for his son, and given that it is consistently put on behalf of the wife that she supports the child having a relationship with the father and she has done everything she can to achieve that.  The fact of the matter though is that despite her efforts the child has still not spent time with his father.

10. There has been no time spent since December 2007, and, as I say and repeat, that is a sad and unfortunate circumstance.  The child needs to spend time with his father, and he needs to have a relationship with his father.  The parties seem to be ad idem at least about that, but the question continues to be, how to bring that about.  I do not need to reiterate all of the efforts that have been made by everyone concerned, including the independent children's lawyer, to frame appropriate orders and to try and bring some ingenuity to that exercise and find an answer to the problem of the child not seeing his father.

11. I am now straying from the application that is before me and that is, as I say, the wife’s application to adjourn.  What I meant to impart though, by referring to those matters, is that it is a serious step to further adjourn consideration of this issue, given the history of it in this Court.

12. In any event the application is before me, and it is opposed.  The first comment I make is that the medical certificate tells me absolutely nothing about what the wife's ailment is, why she is unfit for, as is described, "work/school/usual activities" from 18 May 2009 to 3 June 2009.  Importantly, it tells me nothing about whether the wife can give instructions or not to her legal representatives today for the purposes of the hearing and that, to me, is the crucial issue here.  The husband has not been able to attend because he resides in Hong Kong, but he is presumably available to give instructions, if necessary, for the purposes of the hearing today.

13. The second comment that I make is that I refused a similar application on 8 April 2009.  Thirdly, despite the medical certificate the wife was able to give instructions to her solicitors to prepare an affidavit, and which affidavit was sworn yesterday, namely, 18 May 2009.  It was sworn, as Mrs West has pointed out, in Adelaide, so presumably the wife was well enough to attend at her solicitors' office and read and sign the affidavit.  Yet she cannot attend the hearing today! 

14. Mrs West has also pointed out to me, relevantly, the sequence of events in terms of correspondence and the like, yesterday, which raises concerns in my mind about the genuineness of this application to adjourn and whether the wife is indeed suffering from ill health to the extent that she cannot attend at Court or at the very least provide instructions.

15. The sequence was that at 10:11am on 18 May 2009 a facsimile was sent by the wife's solicitors to the husband's solicitors advising that they did not have instructions to prepare or argue any matter currently listed before this court on Tuesday 19 May 2009 due to reasons previously put to the Court relating to the unavailability of funding.  That was responded to by a facsimile from the husband's solicitors wherein they put the wife's solicitors on notice that if the wife did not attend the hearing they would “ask for the matter to proceed undefended" and also they would be seeking costs.  I also bear in mind at this point that the initial facsimile did not say anything at all about the question of ill health. 

16. Then at 1:58pm a facsimile was sent from the wife's solicitors to the husband's solicitors, referring to their facsimile, and saying:

    Please be advised my client is unwell and will not be attending the hearing tomorrow.  I will be attending the hearing and advising his Honour of the same.  I am currently preparing the affidavit with a view to having it sworn by my client, aiming to have it filed in accordance with the orders.

17. What has been put to me is that that sequence is important because initially, to repeat, there is nothing about ill health.  However, once the husband's solicitors raised the issue of the need for the wife to attend, there is then a facsimile saying that she is “unwell”. On top of that there is now a certificate.  It has a date on it - namely, 18 May 2009 - but there is no indication as to the time of the day when it was obtained.

18. In any event, the medical certificate is completely inadequate in terms of justifying an adjournment of these proceedings today and thus I refuse the application.

19. I have now proceeded to deal with the issues that were listed for hearing today and they are the issues that relate to the child and what ongoing order should be made, if any, in relation to the child spending time with his father.

20. I have heard submissions on that topic from Mr Ackman QC and of course I have his client's affidavits before me, stretching back to December last year.

21. I have also heard submissions from counsel for the independent children's lawyer.  Unfortunately though I have heard no submissions from or on behalf of the wife.  Ms Pederick, who has appeared today on behalf of her client, not immediately after I dismissed the application to adjourn, but subsequently, made an application seeking leave to withdraw on the basis that she had no instructions from her client.  At that time I understood it to be in respect of the applications that I was then dealing with, namely, in relation to the child.  As it has turned out, when I sought Ms Pederick's input in relation to the other applications which were listed today, albeit they were listed for mention, Ms Pederick simply said she has no instructions and therefore she could not make any comment.

22. In any event I refused Ms Pederick leave to withdraw.  The position I was faced with was Ms Pederick is the solicitor on file, and she proposes to remain the solicitor on the file.  Her client is not here.  It has still not been explained to me why instructions, at least, cannot be obtained from the wife, but, regardless of that, the effect of me giving Ms Pederick leave to withdraw is that there would then be no-one present to represent her.

23. I allowed that situation to occur on 9 April 2009 because of the nature of the application and because, as I think I said in my reasons at the time but anyway I say now, I assumed that Ms Pederick had sorted that out with her client and her client was comfortable with Ms Pederick withdrawing and not being represented on the application for costs.  I still had serious reservations though about giving Ms Pederick leave to withdraw given that she was remaining as the solicitor on file. 

24. In any event I was not prepared to do that today.  I thought it important that Ms Pederick, as solicitor on file, remain, and whether she had anything to say or not was not to the point.  She needed to know what was being said and what orders I made.

25. The issue now in relation to the child is well known to everybody but to repeat it arises from orders that I made on 8 April 2009, when the wife was represented, which provided for the child to spend time with his father on 12 April 2009 and 16 and 17 May 2009.  I adjourned the matter to 4 May 2009, to ascertain what the position was at that point.  I was told on that day that the child, in the end result, did not spend time with his father on 12 April 2009. 

26. As I foreshadowed on 8 April 2009, if that turned out to be the case, I would be listing the matter for hearing on 19 May 2009, being the first available date for hearing after the weekend of 16 and 17 May 2009.

27. Mr Ackman informed me that his client's position is that he seeks a reinstatement of paragraph 7 of the order made by Bell J on 5 March 2007.  That would entail commencing forthwith, or as soon as practicable, overnight time on a three-weekly cycle, commencing from 5:00pm on the Friday of a weekend and concluding ultimately on the Sunday of that particular weekend, although I note, looking at that order, that it seemed to provide for a two-stage process, namely, Friday 5:00pm to Saturday 8:00pm and then Sunday 11:00am to 4:00pm.  Be that as it may, that was the primary position of the husband.

28. Upon hearing the proposal of the independent children's lawyer though, Mr Ackman indicated that his client would agree to introducing a first step of there being handover at the child’s school with the child then remaining with the father until the Sunday afternoon.  Indeed that was a proposal which was the subject of discussion and submissions late last year and then was the subject of the order that I made on 5 December 2008, but unfortunately, given illness of the father and timing difficulties and other issues, the order was not carried out.

29. The proposal of the independent children's lawyer is that there be an occasion when the child is collected from his school at the conclusion of school on the Friday and that the child then remain with his father until Sunday afternoon.  As I understand it, the child usually has a carer or therapist with him at school and so that person would be there at the conclusion of school on the Friday.  As I recall the previous evidence in relation to this issue, in terms of the child returning home from school on a Friday, it would either be that the carer would take him home or his mother would collect him, there being no necessary pattern about that.  What the independent children's lawyer has in mind on this occasion is the mother not being present, and the child being handed over, as I say, at the conclusion of school in the presence of a carer or therapist.

30. In addition, counsel for the independent children's lawyer put to me that Dr C should be involved in this process.  Initially the suggestion was that Dr C facilitate the handover but, as that issue was explored, the independent children's lawyer retreated to a position of Dr C not facilitating handover but being present to observe handover and then subsequently provide a report as to his observations.  The concern was whether the independence of Dr C, as the expert witness in this case, might in some way be compromised if he facilitated handover.

31. That then became an issue for the husband, in that Mr Ackman put to me that his client was quite prepared to agree to undertaking this exercise as a first step towards an ongoing arrangement of the child spending time with his father but that Dr C should in fact facilitate rather than just observe.  Mr Ackman suggested that limitations could be put on the involvement of Dr C, but to merely observe would not be a useful exercise in then assessing what happened or did not happen.  Apparently Dr C is quite willing to facilitate handover as part of his brief in this matter and obviously then to provide a report as to that.

32. The issue then is whether I should involve Dr C as an observer or as a facilitator.  I note that I do not have the benefit of any input in relation to it by the wife, despite this being a proposal which has been put in open court, and Ms Pederick having ample time to obtain instructions from her client about it. 

33. Firstly, as to the proposal itself I note that Dr C was of the view that this could very well be a positive step -namely, the child being collected from school - on the ground that the child has made significant progress at school in terms of his socialising and his ability to cope generally and there were positive signs about that.  Dr C saw that as something to perhaps use as a stepping stone towards re‑establishing the child’s relationship with his father.  The extra element, of course, is the involvement of Dr C which in my view, at whatever level Dr C is involved can only assist. 

34. For my part, at least, I consider that this is a proposal which should be taken up, particularly given that the father agrees with it.  For the mother's part, I have no input by or on her behalf but I keep coming back to the fact that the wife's position generally in relation to this issue is that she is supportive of the child spending time with his father, she is supportive of a relationship being re-established or being maintained and she says, and has reiterated through her counsel on a number of occasions, she has done everything that she can to comply with the orders that have been made and to ensure that the child spends time with his father.

35. I know that the husband does not necessarily accept that but that is the position as it is presented to me and I am not in a position to make a finding one way or the other about that, but I obviously take comfort from that being the wife's general position in looking at this slightly different proposal than the one that was the subject of my order in early December 2008.  I am keen to look at any proposal which has the outcome of the child spending time with his father. 

1. As I have said, often, and I repeat, it is a sad and unfortunate circumstance that the child is not spending time with his father.  The child needs his father and he needs his father in his life.  I understand that there is now regular telephone or video contact, but that is not sufficient; there needs to be face-to-face contact between father and child and it is a mystery, on the current evidence before me, as to why that is not happening, given the positive signs that have come out of that telephone and video time that the child does spend with his father.

2. In summary then, given that in my view it is in the best interests of the child to do everything possible to ensure that he does spend time with his father, and given that the mother does not cavil with that, or has not in the past cavilled with that, and the father obviously is supportive of that position, I am prepared to make an order in terms of the proposal of the independent children's lawyer.

3. In terms of the practical issues surrounding that order, unfortunately it cannot occur until 31 July 2009, given the father's availability and commitments.  I note, as Mr Ackman has said to me, that his client would like to do this as soon as possible but that is the first occasion when he can do this.  Thus on 31 July 2009 there will be a pick-up from school in the presence of the carer or therapist.  The child will then continue to spend time with his father until 5:00pm on Sunday afternoon.  That will be subject to a strict condition that the father is to return the child to the mother in the event that it becomes necessary to do so. 

4. I do not want to say too much, about that though, because there will be degrees of resistance that the child might exhibit.  The father has sufficient experience of the child and his condition, and as I have said in the past, he is his father, and I am satisfied that he has the ability to care for the child on a weekend and I am prepared to leave it in the discretion of the father as to whether a position is reached with the child where he would need to return him to his mother. 

5. An issue which has often been raised before me in setting up an order like this is whether a therapist or carer should be present during the time that the child spends with his father.  However, there is nothing to indicate that I should change my position about that, namely that the carer should stay for an hour and only stay longer if the father requires it.  If there is no carer or therapist present at the end of the day though then I indicate that will not mean that this time will not commence.  If the carer or therapist is present that carer or therapist can stay for the first hour, or longer if the father wants, but if there is no carer or therapist present then the handover should still take place. 

6. I now turn to what role Dr C should have at the handover.  It has been put that for Dr C to facilitate handover he may compromise his independence.  I have struggled with that submission and I cannot see how that would be the case.  I take Mr Ackman's point that if Dr C in a subsequent report, after having facilitated handover, makes some comment or provides some opinion or puts some view about what one or other of the parties did or did not do or should have done, then that might lead to a question of his independence, but to do nothing more than facilitate handover would not compromise his position. 

7. I can see great benefits in Dr C facilitating handover, and by "facilitating" I am not intending, of course, for Dr C to physically facilitate, but, given his special expertise and his involvement in this case, the facilitation I have in mind is Dr C, if necessary, talking to the child.  If the child needs some persuading to go with his father, then Dr C can undertake that task, but certainly not to the extent of forcing the child to go with his father, if that is a situation that Dr C is confronted with.  Thus Dr C is to use his expertise in persuasion and discussion and mediation and conciliation to facilitate the child attending with his father, if necessary.

8. In conclusion, in my view this is something that should be tried.  It hopefully will be a first step to ongoing time.  I know that has been said in the past, but I look forward with optimism to this order being complied with. 

9. I propose to set this up so that handover takes place on 31 July 2009.  Then the question is, what happens thereafter?  It is proposed that a short report be obtained from Dr C and if necessary he can give evidence in relation to that report and for that purpose I need to set a date for further hearing of the issues in relation to the child.

10. Separate to the issue of the child, I have addressed as best I can the other outstanding applications but more particularly the relisting of this matter for trial.  There are a number of issues that will affect that, not the least of which is the appeal against my order dismissing the application that I disqualify myself.  That appeal is due to be heard, I am told, in July 2009 and I can only hope that there will be a relatively short period thereafter for any decision to be handed down.  Obviously the result of that appeal may have an impact upon the listing of this matter for trial.

11. The other issue which needs to be taken account of is that the wife still does not have the judgment in the appeal that she lodged against my orders in relation to her funding.  The result of that appeal is also relevant in terms of the relisting of the trial because the wife's position put to me is that she has no funding for her legal representation and she is relying on a successful outcome of that appeal.

12. The wife also has an application before me which has been adjourned, wherein she seeks an order that the trial not be relisted before the appeal in relation to funding is determined, or, alternatively, she seeks an order that she be provided with an amount of $3 million by way of costs or partial property settlement. 

13. In any event, subject to those issues, and still working on an eight-week trial, which is the wife's estimate, it looks like that cannot be listed until the New Year.  There is a prospect of it being listed towards the end of the year, depending on the final wash-up in terms of these ongoing applications and the appeals that I have mentioned and of course whether eight weeks is still the estimate.  What I propose to do about that - if I have the time and I hope I will - on 26 August 2009, is to address issues relating to the preparation of the matter for trial, whether it is later this year or first thing in 2010, and, as I say, always subject to what the result of these appeals might be in terms of disqualification and the wife's funding.  Thus I propose to adjourn all outstanding applications to 26 August 2009

I certify that the preceding 48 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 19 May 2009.

Associate