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 of 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

1. 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.

2. 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.

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

4. 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 & 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

REASONS FOR JUDGMENT

Introduction

1. The applications before me are the husband’s Application in a Case filed on 24 August 2009 in which he sought the following order:

   “1.     That the husband have 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 by the husband and the principal of [P School];

   (b)That neither the wife or [S] be advised of the husband’s proposed attendance at the school.”

2. The wife filed a Response on 13 October 2009 in which she sought an order that paragraph 1 of the husband’s Application in a Case be dismissed and then sought the following order:

   “2.     That the parties attend mediation with Regional Dispute Resolution Coordinator Mr [V] in Adelaide on a date and at a time to be nominated by him for the purpose of assisting the parties to reach agreement on issues relating to the welfare of the child [S] born on […] June 1996 including but not limited to the said child spending time with the husband.”

3. The husband’s application was initially listed for hearing on 26 August 2009. However, after hearing submissions I adjourned that application to 20 October 2009. I refer generally to the reasons that I delivered on 26 August 2009. They explain the basis for the adjournment and the need for a further report from Dr C which has now been received.

The issue

1. The husband seeks orders to implement the recommendation of the single expert, Dr C, namely, in short, that he be permitted to attend S’s school at times arranged with the teacher and the principal, but without any forewarning to the wife or to S. The wife opposes that order and seeks that this case be progressed by there being mediation between the parties with an experienced counsellor.

2. The Independent Children’s Lawyer supports the husband’s application, and says that mediation can occur as well but not instead of.

3. Save and except for a very brief moment the husband has not spent any time with S since December 2007 despite there being a number of orders made setting up different arrangements in an attempt to bring this about.

4. The wife concedes, as she has done all along, that S should spend time with his father, but she has not been able to make this occur. She says though that the latest proposal of Dr C will have a negative impact on S, his schooling, and his relationship with her. Instead, she says that it is time that the parties met with an experienced counsellor to try and come up with a solution.

The evidence

1. The affidavit and other material before me for the purposes of this hearing are as follows:

   8.1The husband’s affidavit filed on 24 August 2009.

   8.2The wife’s affidavits filed on 26 August 2007 and 13 October 2009.

   8.3The affidavits of Mr M and Mr SH filed on 26 August 2009.

   8.4The Independent Children’s Lawyer’s affidavits filed on 12 August 2009 and 20 October 2009.

2. In relation to the affidavits of the Independent Children’s Lawyer they annex, inter alia, the two reports of Dr C dated 9 August 2009 and 16 October 2009. With the first report I refused to receive it on 26 August 2009, and ordered that certain things occur, and in particular that Dr C speak to the wife, ascertain her concerns and take them into account in a further report. That is the tenor of the second report, and I have now received both of them. Indeed they were both referred to in submissions by counsel.

The submissions

1. 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.

2. The husband’s senior counsel submitted that the wife is not bona fide in her claim that she supports S’s need to have a meaningful relationship with his father. He points to the circumstance that despite all the things that the wife can get S to do, the one thing that she cannot seem to get him to do is to spend time with his father pursuant to orders made in this Court. He refers to the comments of Dr C in his latest report as a result of his discussion with the wife, namely:

   “I was left in no doubt as to (the wife’s and her sister’s) persistent antagonism towards [the husband] and belief that he had left [the wife] in part because he could not cope with the demands of [S], and that he implicitly ‘owed’ them for his transgression. I concluded that the prospects of reconciliation in order to work collaboratively in [S’s] best interests remain slim.” 

3. Mr Ackman also highlights paragraph 39 of the wife’s affidavit filed on 26 August 2009 where she said this:

   “Should the husband and I fail to resolve issues pertaining to [S] at mediation, then I seek that all future time spent between [S] and the husband cease pending the trial hearing in this matter.”

4. In relation to the question of the impact on S of such an exercise as is proposed by Dr C, Mr Ackman points to the finding of Dr C set out in his initial report as to how S is able to cope for example with changes to his routine. Indeed, Dr C said this in paragraph 4 of his report of 9 August 2009:

   “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.”

5. Thus Mr Ackman says that all indications are that S will cope with his father appearing in his class.

6. As to mediation, Mr Ackman says that given the wife’s attitude it would simply not work, and Dr C confirms that.

7. The wife’s senior counsel submits that Dr C has 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.

8. The wife’s concerns are set out in paragraphs 21, 22 and 31 of her affidavit filed on 26 August 2009 as follows:

   “21.  Dr [C’s] proposal following his meeting with the Husband at [P School] and as stated in his report of 9 August 2009, I believe will jeopardize the status of the school as a safe place for [S] to be in. For the Husband to spend time with [S] at school in the classroom to reconnect with [S], I believe will adversely impact upon the well-established safety zone of [S] which has been established over the past six years. [S] is allowed to be who he is in his classroom environment, where he has friends, support staff (therapists) and teachers. He has his own daily predictable routines and space where there is no mum or dad at school. [S] has demonstrated in the past severe anxiety regarding handover to the Husband at school, particularly on 5 December 2008 when [S’s] school friends witnessed [S] crying and his school friends I am informed were unduly distressed.

   22.    I have serious concerns that further disruptions to [S’s] familiar and predictable environment will be detrimental to him emotionally and psychologically. [S] has already experienced many changing disruptions. It is only [S’s] school environment and daily routine that has remained the same and I do not wish [S] to have a further change as proposed by Dr [C] in his report of 9 August 2009 for the Husband to spend time with [S] in the classroom. Neither the Husband nor Dr [C] contacted me about the changes proposed and I was not invited to have an input as to what may work best for [S].

   …

   31.    The previously planned school handovers recommended by the Independent Children’s Lawyer and as Ordered by this Honourable Court have been extremely stressful for [S]. I believe they have interfered in my parenting and the level of trust between [S] and myself, therapists and carers. The Aquatic Centre incident with [S] was traumatic for him, when he defecated himself in front of his peers. I am concerned that [S] may regress in the future if he continues to experience severe anxiety.”

9. The wife has reiterated these concerns to Dr C.

10. In addition, as recorded by Dr C, one of the therapists, Mr M, said that it was “important not to disturb [S’s] sense of the stability and routine of the classroom”.

11. There was also a query by Dr A as to whether some place other than S’s school should be trialled.

12. The wife says that one area of S’s life that works well is his attendance at school, and it would be disastrous if as a result of the proposed exercise S lost that. Ms Pyke submitted that there is a real risk of S leaving the school as a result, and it would be impossible to retrieve the situation in these circumstances.

13. Finally, it was submitted that it would be entirely unfair on the wife for this process to be permitted. Given the reactions of S historically to the attempts to have him spend time with his father, it will be the wife who will have to pick up the pieces if he becomes distressed, and there will be the added burden of not knowing when this will occur.

14. The Independent Children’s Lawyer, to repeat, supports the orders sought by the husband on the basis of the recommendations of Dr C.

15. Counsel for the Independent Children’s Lawyer is also concerned 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. 

16. Although counsel for the Independent Children’s Lawyer readily conceded that the impact on S of his father attending his class is unknown, she submitted that it is essential to take any opportunity to bring father and son together. Mrs West also emphasised that there are a number of factors that will ensure that it will not necessarily be a negative impact. Those factors are 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.

Discussion

1. I must say that I was initially concerned 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. However, I am now satisfied that Dr C’s recommendation as to the way forward is well founded and takes into account all issues that are relevant.

2. 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.

3. Over the past two years at least a number of attempts have been made to bring S and his father together, but without success. Thus this latest proposal is one that needs to be tried. The evidence from the expert Dr C is that away from home and at school S is able to manage unpredicted changes to his routine. Thus, school provides an obvious medium to reintroduce S to his father. 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.

4. In any event, 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.

5. In all the circumstances I consider that it is in the best interests of S to make the order sought by the husband, but subject to some limitations which I will elaborate on shortly.

6. 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.

7. One issue that was raised was whether Dr C should be present on at least the first occasion of when the husband attends at S’s school. Mr Ackman seeks an order to that effect, Ms Pyke did not really address it, but the Independent Children’s Lawyer opposes it. This is a difficult issue, but on balance I accept the Independent Children’s Lawyer’s submission. The environment in which this occurs needs to be kept as natural as possible, and the presence of Dr C would militate against that. That is not outweighed by the suggestion that he may need to report on what happens. In my view that can be done through the auspices of the teacher and/or the speech therapist if necessary.

8. To repeat, there should be some limitations on the arrangement that I now put in place. Firstly the husband’s attendance at the school should be restricted to no more than two occasions each week. Secondly the husband should not be permitted to remove S from the school grounds. Thirdly the actual time spent between S and his father, if that situation is reached should be as agreed between the husband and the principal.

9. Finally, there is the wife’s application that the parties attend mediation with a counsellor. Initially, in paragraph 37 of her affidavit filed on 26 August 2009 the wife proposed that such mediation take place “with a mediator qualified in autism”. However, in her response that changed to be mediation by Mr V, a family consultant at the Adelaide Registry of the Family Court and the Federal Magistrates Court. It is suggested that the order be made pursuant to s 13 of the Family Law Act 1975. 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.

10. 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 of the court.

I certify that the preceding 35 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 5 November 2009.

J Thomas
Associate