Strahan and Strahan (No. 5)

[2007] FamCA 1724

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN (NO. 5) [2007] FamCA 1724

FAMILY LAW – CHILDREN – with whom a child spends time – interim proceedings – application by husband seeking orders for time with the child over the summer holidays and into February 2008 – where previous consent orders provided for time over summer holidays to be as agreed – where agreement cannot be reached regarding the precise time the child is to spend with the husband – whether the child should spend overnight time with the husband – where handovers to take place – whether a therapist should be present for all or only some of the husband’s time – whether husband’s current wife is able to be present during the husband’s time with the child.

Family Law Act 1975 (Cth)

APPLICANT: Mrs Strahan

RESPONDENT: Mr Strahan

INDEPENDENT CHILDREN'S LAWYER: Ms Ann Bills

FILE NUMBER: ADF 228 of 2005

DATE DELIVERED: 17 December 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 17 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M Abbott QC and
Miss M Pyke QC, with
Mr A Branch and Ms M Angelino

SOLICITOR FOR THE APPLICANT: Donaldson Walsh

COUNSEL FOR THE RESPONDENT: Mr N Ackman QC, with
Ms K McMillan and Mr P Harris

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 further consideration of the Application in a Case filed by the Independent Children’s Lawyer on 13 December 2007 be adjourned to 9:30am on 11 January 2008.

2. That the part-heard trial in relation to the child’s issues be adjourned to 9:30am on 11 January 2008.

3. That the child S born on … June 1996 spend time with the husband as follows:

   (a)       From 11:00am to 7:00pm on 20 December 2007;

   (b)       From 11:00am to 7:00pm on 21 December 2007;

   (c)       From 11:00am to 3:00pm on 24 December 2007;

   (d)       From 11:00am to 7:00pm on 5 January 2008;

   (e)       From 11:00am to 7:00pm on 6 January 2008;

   (f)       From 11:00am to 7:00pm on 7 January 2008;

   (g)From 5:00pm to 8:00pm on 21 January 2008; from 11:00am to 7:00pm on 22 January 2008; and from 11:00am to 7:00pm on 23 January 2008 subject to the child being present in Australia during those periods of time;

   (h)       From 5:00pm on 22 February to 5:00pm on 23 February 2008;

   (i)        From 11:00am to 5:00pm on 24 February 2008.

4. For the purpose of the husband’s time with the child the wife and a therapist shall deliver the child to the husband’s apartment at O at the commencement of each period of time and the husband shall return the child to the wife’s residence at B at the conclusion of the husband’s time with the child.

5. That for the purpose of the husband’s time with the child on 20 December 2007 and 21 December 2007 the Therapist is to remain in attendance with the child the entire time.

6. That for the purpose of the husband’s time with the child on 24 December 2007, 5 January 2008, 6 January 2008, 7 January 2008, 21 January 2008, 22 January 2007 and 23 January 2008 the Therapist who delivers the child to the husband 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 of time that the husband has with the child.

7. That for the purpose of the husband’s time with the child on 22 February 2008, 23 February 2008 and 24 February 2008 the Therapist who delivers the child to the husband shall remain in attendance with the child for all of the period of time from 5:00pm on 22 February 2008 until 5:00pm on 23 February 2008 and on 24 February 2008 the Therapist 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 of time that the husband has with the child.

8. That for the purpose of the husband’s time with the child no other person shall be present at handovers SAVE AND EXCEPT the wife and the Therapist, without the consent of the husband.

9. That Ms AW be permitted to be present during any period of time that the child spends with the husband SAVE AND EXCEPT on 20 December 2007 and 21 December 2007.

10. That the Therapist shall not be present for the purpose of recording or giving evidence about anything that occurs during the husband’s time with the child SAVE AND EXCEPT in relation to any relevant matter arising within the expertise of the Therapist.

11. That until further order paragraphs 7 and 8 a, b and d of the order made on 5 March 2007 be suspended.

12. That if a Therapist is not available to attend in accordance with the terms of this order then the husband shall still have the time with the child.

13. That pursuant to Section 62B and Section 65DA(2) of the Family Law Act 1975 (Cth) 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.

ADDENDUM ORDER

1. That neither party issue any subpoena without leave of the Court.

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

MRS STRAHAN

Applicant

And

MR STRAHAN  

Respondent

EX TEMPORE REASONS

1. This matter comes before me today on the husband's application filed on 16 November 2007 in which he sought orders for the child S to spend time with him during the summer holidays, but extending into February 2008. The reason for the husband making that application is that in the final consent orders made in March 2007 the order relating to summer holidays was that the child spend such time with the husband as may be agreed.  The husband sought agreement in a letter of 29 October 2007, although I note that that letter only dealt with time in December, it did not seek the agreement of the wife as to time in January and February. 

2. In any event there was no response to that letter.  Another letter was sent and the response to that was effectively, leave that issue until 11 December, when this matter is listed for a first day of trial. I have already expressed my view about that.  I consider it an entirely inappropriate response.  11 December was the first day of a trial, not a listing to deal with any interim applications. 

3. I also note that the application was issued without leave, and it was issued late in the sense of the practice direction that applies to matters in this court seeking orders for time spent over the Christmas Holidays.

4. The wife has replied with a response filed on 7 December; also without leave.  I have made comments already and I do not need to repeat them, about the affidavit that the wife filed in support of that response. In my view that affidavit was totally unnecessary.  It included significant irrelevant material.  No wonder the wife's costs are as high as they are if she files an affidavit like that. 

5. It concerns me how this matter has come before me for the reasons I have just mentioned.  Further, the consented to a final order in March 2007, yet the time that the child was due to spend with his father under that order variously did not happen or only happened to a limited extent.  In my view it would have been perfectly obvious that this issue, namely what happens in summer holidays, was going to be a problem, and it should have been addressed well before now.  Not in the way that it has to be done now, namely rushed at the last minute, with the difficulties that that brings.  I note that the parties had a golden opportunity to sort it out or have it determined when they were before the Judicial Registrar on an application for contravention as recently as early November. The Judicial Registrar made orders about some make-up time.  That was an opportunity missed to sort this matter out.

6. It now falls to me at the very last minute, once the trial has commenced under Division 12A, to deal with this, but deal with it I have to because the parties cannot reach agreement about what is to happen over these summer holidays which have already commenced.  As a result though of how this matter has developed I am not in a position to deliver any extensive reasons.  All I can do is to now make brief comments as I consider the orders sought. The submissions from counsel, including counsel for the Independent Children's Lawyer, have taken most of the morning, and I am not in a position to do anything other than that. 

7. If the parties want more fulsome reasons ultimately then they will get them, but they are not getting them today.  The parties might take a step back and think about what I have said about how this matter has come before me today and why it is that I am not in a position to deliver extensive reasons today.  What it has meant also, and this concerns me greatly, is I had intended to make directions about the part-heard trial that commenced on 11 December 2007.  I do not have time now to do that because of the time that has been taken with this exercise.  That has to be listed at another time.  I will have to juggle cases, and try and make time for this matter to be heard. 

8. Whether I am in a position to make trial directions on 11 January 2008 is problematic because the husband's senior counsel is not available.  I will be sympathetic to not dealing with it in extenso on that day if it cannot be, but I want to at least have it mentioned so that we can then look at a more appropriate date.  As will become apparent in a moment, 11 January might also assist in knowing whether a particular order that I am going to make can be carried out, given the suggestion that the wife may still be able to go overseas as she proposes in late January.

9. There is a lot that will be left to be attended to in the half-hour I have from 9:30am to 10:00am on 11 January 2008.  I do not propose to allow this matter to impact upon any other listing that I have on that day.  It may be things will need to be just mentioned and then we set down some time when everyone is available to deal with these ever-present and ongoing issues that arise in this case.

10. To return to the application and response that is before me.  Things have moved significantly in terms of the orders that each party seeks and I am not going to repeat what was in the husband's initial application or in the wife's response. 

11. It seems that the parties are agreed that the child should spend time with the husband on 20 December 2007 and 21 December 2007.  The issue, though, is whether there should be overnight time or just day time.  The parties are agreed that the child should spend time with his father from 11:00am to 3:00pm on 24 December 2007, and thus I can make a consent order about that.

12. The parties are then agreed that there should be time spent on 5 January, 6 January and 7 January 2008.  However, the parties are not agreed as to what precise time should be spent and, importantly, whether there should be overnight time.  The parties are agreed that there should be time on 21 January, 22 January and 23 January.  Again, though, there is no agreement about the time that should be spent over that period, including whether it should be overnight or not.  I note that those dates are subject to whether the wife is able to go overseas as she has foreshadowed, and that is the issue I was referring to earlier that I might need to address on 11 January 2008.  I propose to make an order about that period today, but subject to the wife's availability. 

13. The final period that is agreed is 22 February, 23 February and 24 February 2008.  Again, though, the issue is whether there should be overnight or not, and what times there should be if it is only day time.  I note that that latter period is outside the summer holiday period, but it seems both parties and the Independent Children’s Lawyer are at least ad idem that I should address what is to happen in February 2008, rather than finish in January 2008 and then revert to the current order of March 2007, given the difficulties which both parties have raised with that order and the operation of it.  I agree with that. 

14. What I am looking at doing is making an order which really carries the parties through to the conclusion hearing on child issues, which will take place in March, as I have indicated previously. 

15. The first issue that I have to determine is whether there should be overnight time or just day time.

16. The second issue is where handover should take place, the wife wanting handovers to take place at her home at B as they have in the past, and the husband wanting to change that arrangement such that handovers take place, at the commencement of the time at least, at his residence, on the basis of him returning to the child at the conclusion of the time he spends with him. 

17. The next issue is whether there should be a therapist present for all of the time or for just some of the time. No-one is suggesting that the therapist not be present at all, so the issue is whether it is all of the time or some of the time, the father seeking that it only be for the first hour. I note that the counsel for the independent children's lawyer has put another option, which is that the therapist remain for as long as the father considers is necessary to settle the child in and to deal with any immediate problems that might arise, but then the therapist departs. 

18. The final issue between the parties is whether the husband's new wife Ms AW should be present at any of the time spent between the child and his father; the wife not wanting Ms AW to be present, the husband wanting her to be. 

19. There are a number of affidavits before me, which I have read. I have been referred to reports, most of which I have also read. I confess I have not read in full Ms H's report of February 2007, but Mr Ackman has taken me to what he says are the relevant parts of that report, and thus I consider I am sufficiently au fait with that report to rely on it in considering the orders that I will make. 

20. In relation to the question of overnight time, in my view there should not be overnight time at this point, save and except on the last occasion of time to be spent, namely in February. 

21. I consider that an attempt should be made for the handovers to take place at the husband's home. That has not been tried.  The handover at the mother's home has been problematic and has not worked. What the reason is remains to be seen.  I do not have sufficient evidence before me to make any findings about it but it seems to me that a change might assist, and thus I propose to require the handover to take place at the father's home.

22. In terms of the presence of Ms AW, there is no evidence before me to indicate that she should not be permitted to attend.  However, given this is an interim hearing and in the interests of attempting to make this order work, I will not permit her to be present on the first occasion of time spent between the child and his father but she can be present on subsequent occasions. 

23. In terms of the therapist being present, in my view there is obviously a need for the therapist to be present, at least at the commencement of the time.  This is nothing new, but given orders that have been made previously, I will be ordering that the therapist be present on the first occasion for the entirety of that time, but thereafter I will be making an order in terms of the proposal by the independent children's lawyer that the therapist only remain for as long as the father considers necessary, but at least for the first hour of the time, save and except with the overnight occasion that I am going to order in February, the therapist should be present during all of that time.

I certify that the preceding 23 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland.

Associate

17 December 2007