Strahan and Strahan (No 7)

[2009] FamCA 1103

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN (NO. 7) [2009] FamCA 1103

FAMILY LAW - PRACTICE AND PROCEDURE – stay – oral application by the wife seeking that the judge not hear anything further in the matter pending the determination of an appeal from the dismissal of an application seeking the judge’s disqualification – application dismissed.

FAMILY LAW - CHILDREN – interim proceedings – where an order was made for the child to spend time with the husband – where the expert witness was to provide a report as to his observations of the handover – where the husband’s time with the child did not occur – where the expert prepared a report and made recommendations – where the father has brought an application seeking orders in terms of the expert’s recommendations – whether the report should be received by the Court – where the report is not in strict compliance with the order – where the expert did not consult the wife before making the recommendations – no value in receiving the report – expert to consult with the wife and provide an updated report to the Court.

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: 26 August 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 26 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ackman QC with Ms McMillan and Mr Berman

SOLICITOR FOR THE APPLICANT: Robinson & Mason

COUNSEL FOR THE RESPONDENT: Ms Pyke QC with Mr Holland

SOLICITOR FOR THE RESPONDENT: Pederick Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mrs West

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ann Bills & Associates

ORDERS

1. That the oral application of the wife be dismissed.

2. That the wife do personally attend and the husband do attend upon Dr C as nominated by the Independent Children’s Lawyer and both parties do all things necessary to facilitate the preparation of an updated report into the best interests of the child including but not limited to:

   a.   the recommencement of the husband’s time with the child;

   b.   the impact on the child and the wife of the husband spending time with the child at his school;

   and that Dr C be at liberty to interview the child’s speech pathologist, school principal, teachers and any other person if considered appropriate by Dr C.

3. That the costs of such report are to be borne equally by the parties from monies held in the Legal Services Commission trust account.

4. That the wife file and serve responding documents to the Application in a Case filed by the husband on 24 August 2009 by 4:00pm on Tuesday 13 October 2009.

5. That the Application in a Case filed by the husband on 24 August 2009 be adjourned for further hearing to 2:15pm on 20 October 2009.

6. That all other applications and responses be adjourned for mention to 2.15pm on 20 October 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

Mrs Strahan

Applicant

And

Mr Strahan

Respondent

EX TEMPORE REASONS

1. This matter was called on before me today, it having been adjourned from 19 May 2009.  Today was intended to be a day to further consider the issues in relation to the child and what, if any, ongoing orders might be made in relation to him spending time with his father.  I made orders on 19 May which provided for the child to spend time with his father on the weekend commencing Friday 31 July 2009, and I also made an order that Dr C, the expert witness in this case, provide a report as to his observations of the handover on 31 July 2009, and, although it was not the subject of an order, it was understood that if Dr C provided a report he should make himself available for cross-examination if either party wished to do that and appropriate notice be given. 

2. I also adjourned all other applications and responses for mention to today.  I will not try and enumerate what those applications and responses relate to but, in a general sense, they relate to financial issues, such as maintenance and child support, and also procedural issues because I foreshadowed that, at some stage, subject to what the Full Court might determine, I was anxious to list this matter for trial and I indicated that the month of February 2010 was a possible date for that, and I, in fact, pencilled this matter in for that time. 

3. Since 19 May an application has been filed by the husband on 24 August 2009 seeking orders in relation to the child spending time with him and also seeking certain orders that the wife not involve herself with or say anything to various taxation authorities, and for the production of documents. 

4. There was an affidavit filed on 12 August 2009 by the Independent Children’s Lawyer which provides information as to what happened on 31 July and annexes a report from Dr C of 9 August 2009. 

5. Ms Pyke QC for the wife has made an application that I not hear anything further in this matter pending the decision of the Full Court in relation to an appeal against an order that I made dismissing an application that I disqualify myself, and Ms Pyke’s application extends to all the proceedings, that is both children’s issues and property settlement issues.

6. In relation to that appeal, there was an application made by the wife, I think in January some time, from memory, seeking that I disqualify myself.  I heard that application, and on 13 March 2009 I dismissed that application.  An appeal was lodged on 7 April against that order and that appeal has now been heard.  It was heard in July, as I understand it, and the Full Court’s decision has been reserved. 

7. The husband opposes the oral application of the wife, as does the Independent Children’s Lawyer. 

8. Mr Berman, who has addressed this issue on behalf of the husband, has raised the lack of a formal application and an affidavit.  Ms Pyke has indicated that why that is is because of the lateness of the husband’s own application. 

9. Although I do not think Ms Pyke specifically said this, I read between the lines that if there had not been the application of the 24 August 2009 then there may not have been the oral application in relation to me not continuing to sit on this matter, but that is speculation.  In any event, there is no formal application or supporting affidavit but I have received it as an oral application, and, as I say, the basis of it is the situation with the appeal against my order.  Mr Berman’s submission is that there is clear authority, and I accept this, that the lodging of an appeal does not act as a stay, per se.  An application needs to be made for a stay and, in my view, this application can be categorised as a stay application.

10. Mr Berman highlights that the primary application to be dealt with today relates to the child spending time with his father, and that is a matter that has been before me now in various ways for some time, and, as I have already referred to, was before me on 19 May and previously was before me on 4 May and 8 April, for example. 

11. Mr Berman says that the situation with the child is an issue of significant concern, and that if I accede to the application of the wife there would be a void in relation to any ongoing order for the child to see his father despite the parties being in heated agreement that the child should see his father.  The problem has been getting him to physically do that, and various attempts have been made via orders to bring that about.  In this regard I am told today that the child did not spend time with his father on that weekend of 31 July, and thus that has been an unsuccessful exercise.

12. As I have said, the Independent Children’s Lawyer opposes this application.  Like Mr Berman, counsel highlighted the need for further consideration of the issues in relation to the child, and that the matter has been set up today to deal with that.  Further, Dr C is here apparently, I assume, because someone has requested that he be here for the purposes of cross-examination.

13. The Independent Children’s Lawyer’s position is that this matter cannot remain in limbo and that it needs to be dealt with.  Thus I should not accede to the application. 

14. Having heard the submissions I propose to dismiss the application.  The position I am faced with is that I dismissed the application that I disqualify myself, there was an appeal, that appeal has been heard and the judgment has been reserved.  However, nothing whatsoever has changed from the time that the appeal was lodged, and thus at the moment, and continuing, I remain as the judge hearing this case and I am not disqualified. 

15. I also want to highlight that I am somewhat bemused by this application being made today, because I heard issues in relation to the child on 19 May and I made orders.  I have also dealt with those issues previously, all subsequent to my order of 13 March and the filing of the Notice of Appeal.  I would have thought that if this was a matter that was going to be brought forward it would have been raised and argued formally on a previous occasion.  However, it has not been and just to say that now there is an application before the court seeking some specific orders, in my view provides no basis for me to not hear the applications that are before me. 

16. It is important that I continue to hear this matter until I am told otherwise, if that is going to be the decision of the Full Court.  I have continued to hear issues in relation to the child, and everyone well knew that today I was going to deal with that issue.  To suggest that, with respect, this application that is now before me is something new, I do not accept.  What was clear was that today I would consider and make further orders in relation to the child seeing his father and that that would be subject to and tied to what happened on the weekend of 31 July. 

17. There can be no misunderstanding about that, and that is all that has happened.  I have a report from Dr C as to what happened on that day filed by the Independent Children’s Lawyer.  I now have a formal application by the husband to seek specific orders in terms of the recommendation of Dr C.  As far as I am concerned, that could well have been anticipated and should have been anticipated.  Thus I have no difficulty in proceeding to hear the application in relation to the child today.

18. The first issue that has been raised with me in considering the husband’s application is whether I should receive the report of Dr C, and, in fact, Ms Pyke for the wife has made an application that I not receive that report.  In further discussion, though, it is apparent that not all of the paragraphs of the report are of concern to Ms Pyke in relation to this application.  The specific paragraphs that are objected to are paragraphs 5 and 6.

19. There are a number of bases for that objection, including that the report is not in fact a report in compliance with my order of 19 May 2009 wherein I ordered that Dr C provide a report as to his observations of the handover on 31 July 2009.

20. Now, Ms Pyke is perfectly correct in that strictly the report which has now been provided by Dr C is not a report in compliance with that order, and the reason for that is that, in fact, the child was not handed over on 31 July and he did not even attend school on that day. 

21. Now, I have been taken to parts of the transcript of the hearing on 19 May, and what was intended was that Dr C be there to observe the handover, to assist, if he was able to in that handover, and then to provide a report as to his observations and, if necessary, to make himself available for cross-examination at the adjourned hearing, namely, today, in relation to any matter arising from his observations.

22. Thus, because the handover did not occur, in strict terms there was nothing for Dr C to report upon.  What happened, though, is that Dr C attended as was arranged.  The child was not at school, but the father was there.  The two therapists who attend the school with the child were present, and there was discussion as to why the child was not at school and what his current situation was, and from there Dr C floated a proposal in relation to the father attending the school on subsequent occasions without notice to the wife and attempting to spend some time with the child in the classroom.  This was discussed with the father, and with the therapists who were present.  It was also discussed initially with the deputy principal, and then ultimately the principal.

23. Now, the problem that Ms Pyke has highlighted and which is obvious – apart from the fact that I have mentioned that the report was not authorised in the strict terms of the order that I made – the problem was that at no stage of that exercise was the mother consulted about the proposal that was being floated by Dr C.  Indeed, as I understand it, that has remained the situation today, in that Dr C has not spoken to the wife about that proposal.  I note I was informed from the bar table by counsel for the Independent Children’s Lawyer that some advice was given to Dr C not to speak to anyone else, that it would be sorted between the solicitors, and obviously I assume that is why that issue was not taken up by Dr C subsequently.  But what has then happened is that Dr C has now provided this report. 

24. I have been taken to various pieces of correspondence passing between the solicitors for both parties and the Independent Children’s Lawyer, and it is quite apparent from that correspondence that a report was in fact sought from Dr C.  The wife’s solicitor in particular was concerned to learn from Dr C what happened on 31 July.  In a letter of 3 August 2009 to the Independent Children’s Lawyer, which is part of annexure A to the affidavit tendered by the wife to me today, her solicitor asks if the Independent Children’s Lawyer could advise her, from inquiries made with Dr C, what was discussed at the meetings that took place on 31 July at the school and “why it would be in [the child’s] best interest to have some deceit involved in;

    1)Not informing [the child] of his father’s proposed visit, scheduled for 4 August 2009;  and

    2)The school organising for the father to see [the child] for a period of 30 minutes at a time without informing him of this, and under conditions determined by the school.”

25. At the end of the letter there is an invitation to the Independent Children’s Lawyer to obtain urgently the report of Dr C as to the events of 31 July 2009, as experienced by him, and provide a copy to the wife’s solicitor.  That letter was actually prompted by a letter from the husband’s solicitors wherein they referred to the events of 31 July and indicated that the husband was seeking to promote the recommendation and proposal that was being put by Dr C in relation to the husband attending at the school at various times, without notice to the wife, and meeting with the child in the classroom. 

26. There was then further correspondence, including a further letter of 5 August 2009 from the wife’s solicitors to the Independent Children’s Lawyer, again, in effect, querying what had happened and what was said on the day, and challenging on what basis the meetings had occurred, for example. 

27. There was then a letter of 6 August 2009, from the Independent Children’s Lawyer back to Ms Pederick addressing her letter of 3 August wherein the Independent Children’s Lawyer advised of her knowledge of what had happened.  Of course, she not being present on 31 July, and in response to the specific query that I have read out from the letter of 3 August, Ms Bills suggested that that issue would be more appropriately addressed in the urgent report that is sought, and she noted that the husband’s solicitor supported requesting a report from Dr C and, indeed, a draft letter to go to Dr C was circulated.  A letter eventually went off to Dr C, a letter approved by both parties, seeking a report from Dr C, and it was that that generated the report that is annexed to the affidavit. 

28. Now, in terms of the circumstance that that report is not directly responsive to the order that I made, in my view the subsequent events that I have just relayed where, indeed, a report was ultimately sought from Dr C in relation to what had happened on 31 July, really is the answer, in my view, to that problem. 

29. But it is then the content of the report of Dr C which is the next problem that Ms Pyke raises, and I have touched on that already in these reasons, namely that the wife was not consulted by Dr C before making his recommendations in his report.  Ms Pyke suggests that the recommendations have no basis and Dr C should not have gone further than perhaps the first three or four paragraphs of that report.  And the issue is just that. 

30. Dr C has made a recommendation as to how this matter should progress.  I have now read the affidavit of the wife which has been tendered today, and also the affidavits of the two therapists, tendered today. Also, from my now extensive knowledge of this case and having had to determine issues in relation to the child, as well as seeing in affidavit material and hearing submissions about the issues and the problems and the difficulties associated with the child and his condition, it did not surprise me, frankly, to read what I did in the wife’s affidavit to the effect of her concerns about this recommendation that is being made by Dr C. 

31. The issue is the wife is very concerned about the impact on the child of an arrangement such as Dr C is suggesting being put in place.  She is concerned about the negative impact that will have on him in his schooling and in his relationship with his mother. 

32. The situation is that school is an environment where, up until recently, the child appears to have thrived and progressed and he has coped with all the trials and tribulations of a young boy attending at school, and the wife’s concern is that that progress will be negatively impacted upon and also she is concerned about, to repeat myself, the impact of all of that on her relationship given, as Ms Pyke rightly said, on any given day the father might attend.  The mother will not know that he is attending.  We do not know how the child will react, but if he reacts negatively, the wife is the one who is going to have to deal with that at the end of the day when the child gets home.

33. Thus they are the issues, in a very summary form, and I concede a brief form, that the wife raises in her affidavit.  Ms Pyke says, quite rightly, in my view, that they are the issues that Dr C should have considered and taken into account before making the recommendation that he did and, for that reason, Ms Pyke says I should not receive his report. 

34. That application is opposed by the husband and by the Independent Children’s Lawyer.  I will not repeat all the submissions that have been put to me, but, again, to try and summarise it as briefly as I can, the situation is that, although there might have been flaws in the process as to how we now have before us a recommendation by Dr C, Dr C has been involved in this matter for some time, he has provided previous reports, he is well aware of the wife’s views and her position and the husband’s views and position, and he has made a number of recommendations along the way, and this is just another step in that process.  He is drawing on his experience and his involvement in the matter to arrive at this recommendation, and the report should be received, and I attach such weight to it as I determine is appropriate. 

35. Now, in my view, that is not enough.  In my view, Dr C should now spend time with the wife, consult fully with her in relation to her concerns about this proposal and be seen to take them into account and provide a report to this court, including recommendations as to any interim orders that might be made, and Dr C can speak to whomever else he sees fit to do that. 

1. Thus given that that is my decision, I do not see any value in receiving today part of the report that is currently before me.

2. This is a significant issue and I accept Ms Pyke’s submissions about this.  The child’s condition is obviously serious and impacts upon him and his entire life and those who look after him, and I cannot lose sight of that.  Dr C is, of course, the expert instructed, and he is the one to look into this, but he needs to look at it in as full a way as possible so that, when we receive his report, for my part I can be satisfied that he has looked at every issue and taken everything into account and so that there can be seen to be a justifiable basis for any recommendation he makes.

3. Now, clearly, I have made that decision in the knowledge – and this was another primary submission by the husband and the Independent Children’s Lawyer – that delay in this case is to be avoided at all costs.  I agree entirely, but that cannot or should not require shortcuts to be taken in terms of this very important issue, and, at the very least, as Ms Pyke has said, it is a matter of natural justice.  Thus, although this will inevitably mean a delay in determining what the next stage of this matter might be, in terms of attempts by both parties to ensure that the child spends time with his father, so be it, but I obviously want to try and limit the delay as much as I can.

I certify that the preceding 38 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 26 August 2009.

Associate