Strahan and Strahan (No 6) - [2009] FamCA 1082

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN (NO. 6)

[2009] FamCA 1082

FAMILY LAW – CHILDREN – with whom a child spends time – interim proceedings – application by the husband seeking to spend time with the child as recommended by the single expert – where the husband has not seen the child since late 2007 – where the single expert recommends the husband spending time with the child at his school without notice to the child or the wife – where previous arrangements for the child to spend time with the husband have not been successful – where the wife concedes that the child should spend time with the husband – where the child has autism spectrum disorder – where the wife has concerns that the husband attending the child’s school as proposed will have a negative impact on the child, his schooling and his relationship with his mother – where the Independent Children’s Lawyer supports the orders sought by the husband – in the child’s best interests to make orders for the husband to spend time with the child at his school – some limitations applied to the husband’s time with the child

FAMILY LAW – CHILDREN – mediation – application by the wife seeking an order that the parties attend mediation – no order made for mediation

Family Law Act 1975 (Cth) s 13

APPLICANT:

Ms Strahan

RESPONDENT:

Mr Strahan

INDEPENDENT CHILDREN’S LAWYER:

Ann Bills

FILE NUMBER:

ADF

228

2005

DATE DELIVERED:

5 November 2009

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

20 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Pyke QC and
Mr Holland

SOLICITOR FOR THE APPLICANT:

Pederick Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Ackman QC with

Ms MacMillan

SOLICITOR FOR THE RESPONDENT:

Robinson & Mason

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mrs West

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ann Bills & Associates

Orders

That until further order the husband spend time with the child S born … June 1996 on the following basis:
(a)that the husband be at liberty to attend at P School at such day and time as may be agreed between the husband and the principal of P School PROVIDED THAT:
(ii)there be no more than two occasions each week;
(iii)that the husband is not to remove S from the school grounds;
(iv)that the time S spends with the husband be as agreed between the husband and the principal;
(b)that neither the wife or S be advised of the husband’s proposed attendance at the school.
That the Application in a Case filed by the husband on 24 August 2009 and the Response filed by the wife on 13 October 2009 be dismissed and removed from the active pending cases list.
That the issue of ongoing time to be spent be adjourned to a date to be fixed after 8 December 2009.
That pursuant to Section 62B and Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Strahan and Strahan (No 6)

Details

AGLC: Strahan and Strahan (No 6) [2009] FamCA 1082
Case: [2009] FamCA 1082
Decision Date: 5 November 2009

CaseChat Overview and Summary

In *Strahan and Strahan (No 6)*, Strickland J of the Family Court of Australia considered an application by the husband seeking orders for him to spend time with the parties' child, S, who has autism spectrum disorder. The wife conceded that S should spend time with the husband, but expressed concerns about the proposed arrangements negatively impacting S, his schooling, and his relationship with her. The husband sought to spend time with S at his school, as recommended by a single expert, without prior notice to S or the wife. Previous arrangements for S to spend time with the husband had been unsuccessful.

The primary legal issue before the court was whether it was in S's best interests to make interim orders for the husband to spend time with S at his school, subject to certain limitations, and without prior notification to S or the wife. A secondary issue concerned the wife's application for an order that the parties attend mediation.

Strickland J reasoned that, in light of the child's best interests and the Independent Children's Lawyer's support for the husband's application, it was appropriate to make orders for the husband to spend time with S at his school. The court applied the paramountcy principle that the best interests of the child are the primary consideration in parenting proceedings. The court also considered the specific needs of S, including his autism spectrum disorder, and the expert's recommendation. The court declined to make an order for mediation.

The court ordered that, until further order, the husband could attend S's school on no more than two occasions each week, provided he did not remove S from the school grounds and the time spent with S was agreed between the husband and the principal. Neither the wife nor S were to be advised of the husband's proposed attendance. The husband's and wife's applications were dismissed, and the issue of ongoing time was adjourned. The court also attached a Fact Sheet detailing the obligations and consequences of contravening the orders.

Orders

Orders of the court

That until further order the husband spend time with the child S born … June 1996 on the following basis:

(a) that the husband be at liberty to attend at P School at such day and time as may be agreed between the husband and the principal of P School PROVIDED THAT:

(ii) there be no more than two occasions each week;

(iii) that the husband is not to remove S from the school grounds;

(iv) that the time S spends with the husband be as agreed between the husband and the principal;

(b) that neither the wife or S be advised of the husband’s proposed attendance at the school.

That the Application in a Case filed by the husband on 24 August 2009 and the Response filed by the wife on 13 October 2009 be dismissed and removed from the active pending cases list.

That the issue of ongoing time to be spent be adjourned to a date to be fixed after 8 December 2009.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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