Strahan and Strahan (No. 9)

[2008] FamCA 1008

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN (NO. 9) [2008] FamCA 1008

FAMILY LAW – CHILDREN – interim – with whom a child spends time – whether child should spend overnight time with the husband – whether a therapist should be present during the husband’s time – where handovers to take place – consideration of recent Family Assessment Report – orders for child to spend overnight time with the husband

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Strahan

RESPONDENT: Ms Strahan

INDEPENDENT CHILDREN’S LAWYER: Ann Bills

FILE NUMBER: ADF 228 of 2005

DATE DELIVERED: 14 November 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 24 October & 7 November 2008

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
Ms Leeson

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

Orders

Until Further Order

1. Paragraphs 7, 8, 11 and 12 of the orders made 5 March 2007 be suspended.

2. The child S born … June 1996 (“the child”) spend time with the husband as follows:

   2.1From the conclusion of school on Friday 21 November 2008 until 8.00pm on Saturday 22 November 2008.

   2.2From the conclusion of school on Friday 5 December 2008 until 6.00pm on Sunday 7 December 2008.

   2.3From 12.00 noon on Friday 2 January 2009 until 12.00 noon on Monday 5 January 2009.

   2.4From 11.00am on Friday 30 January 2009 until 11.00am on Monday 2 February 2009.

3. For the purposes of the said child spending time with the husband:

   3.1The husband collect the said child from P School on 21 November 2008 and 5 December 2007 and return him to the wife’s residence at B on 22 November 2008 and 7 December 2008 respectively.

   3.2On 2 January 2009 and 30 January 2009 the said child be delivered by Mr SH or Mr M or such other therapist, not being a relative of the wife agreed upon between the parties, to the husband’s apartment at O and be returned by the husband to the wife’s residence at B on 5 January 2009 and 2 February 2009 respectively.

   3.3Mr SH, Mr M or such other therapist not being a member of the wife’s family agreed upon by the parties:

   (a)     shall remain present with the child for the entire period of the time spent by the child with the husband from Friday 21 November 2008 to Saturday 22 November 2008; and

   (b)    for the period of time spent by the child with the father commencing on 5 December 2008 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.

   3.4The therapist who delivers the said child to the husband on 2 January 2009 and 30 January 2009 shall remain present with the said child 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 the time the child spends with the husband.

   3.5The wife shall not be present at the handovers conducted on 21 November 2008, 5 December 2008, 2 January 2009 or 30 January 2009 and the wife is to ensure that no relative of hers is present on those occasions either.

   3.6The wife shall ensure that no relative of hers is present at the handovers conducted on 22 November 2008, 7 December 2008, 5 January 2009 or 2 February 2009.

4. The husband ensure that during the time that the said child spends with him the child is able to have unlimited telephone contact with the wife on the basis of the child telephoning the wife at any time that he wishes to do so.

5. If the said child is unable to attend any of the occasions of time to be spent with the husband for medical reasons, a medical certificate must be provided by the wife to the husband or his solicitors not less than 24 hours before the handover is due to take place or if that is not practicable because of the timing of the child’s ill health, then within 24 hours after the time that handover is due to take place.

6. Paragraphs 1, 2, 3 and 5 of the application filed by the husband on 20 June 2008 be dismissed and removed from the active Pending Cases List.

7. Paragraphs 4 and 6 of the application filed by the husband on 20 June 2008 be adjourned for mention to 19 November 2008.

8. Paragraph 12 of the orders made on 17 December 2007 be discharged.

9. Paragraphs 1, 2, 3, 4, 5, 7 and 9 of the response filed by the wife on 18 July 2008 be dismissed and removed from the active Pending Cases List.

10. Paragraphs 6 and 8 of the response filed by the wife on 18 July 2008 be adjourned for mention to 19 November 2008.

11. The costs of both parties and the Independent Children’s Lawyer be reserved.

12. For the purposes of Rule 19.50 of the Family Law Rules 2004, it is certified that this matter is one in which it was reasonable to engage Senior Counsel.

13. Pursuant to Section 62B and Section 65DA(2) of the Family Law Act the particulars of the obligations these orders create and of 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 and Strahan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: ADF 228 of 2005

MR STRAHAN

Applicant

And

MS STRAHAN

Respondent

EX TEMPORE REASONS

Introduction

1. Before me for determination are interim parenting issues with respect to the child, S, born in June 1996.  The relevant applications are the husband’s application in a case filed on 20 June 2008 and the wife’s response to an application in a case filed 18 July 2008.

2. At the commencement of the hearing, senior counsel for the husband provided me with a document outlining the orders sought by his client.  In summary, the husband sought that he spend time with the child from after school Friday until the commencement of school Monday on the weekends commencing 7 November 2008 and 28 November 2008.  The husband also sought to spend time with the child from 5:00pm Friday 12 December until 5:00pm Tuesday 16 December 2008.  For the purposes of his time with the child, the husband sought that he collect the child from and return the child to school, and during school holidays for the child to be delivered to his residence by either Mr SH or Mr M with the husband to return the child to the wife’s residence.  The husband further sought that he spend time with the child from 9:00am Sunday 4 January to 1:00pm on Friday 9 January 2009 and the husband to travel to Hong Kong for this time.  The husband also sought orders with respect to the provision of medical certificates in the event of illness.  The husband proposed for the child to be able to have unlimited telephone contact with the wife during the husband’s time with the child but for this to be at the child’s instigation.

3. Senior counsel for the wife indicated that the wife sought that paragraphs 1 to 6 and 9 to 15 of the orders made by Bell J by consent on 5 March 2007 remain unaltered but that paragraphs 7 and 8 of those orders be varied.  The wife proposed that the husband spend time with the child each third weekend on Friday from 5.30pm to 8.30pm, Saturday from 11:00am to 4:00pm and Sunday from 11:00am to 4:00pm.  The wife proposed that handovers occur at X Café in the presence of a therapist and for the therapist to remain during the husband’s time with the child.  The wife sought that such therapist be either Mr GC, Mr MC, Mr SH, Mr M or such other therapist as agreed or ordered by the Court.

4. The Independent Children’s Lawyer generally adopted the recommendations of Dr C, the psychologist who has prepared the most recent family assessment report in this matter dated 16 October 2008 save with respect to the child travelling overseas.  The Independent Children’s Lawyer supported the husband spending time with the child from after school Friday until the commencement of school Monday and for handovers to occur at the school.

5. At the conclusion of the hearing on 7 November 2008, it was necessary to revisit the timing of the proposed time to be spent by the child with his father.  For the husband’s part, he eventually settled on the weekends commencing Friday 21 November 2008 and 5 December 2008 during the school term and then 2 January 2009 at 12:00 noon until 7 January 2009 at 4:00pm during the school holidays, and then on the weekend commencing 30 January 2009.  The husband understood that that last weekend was the first weekend of the new school term but the wife, through her counsel, indicated that that was still in the school holidays.  In any event, that did not alter the fact of the husband seeking that weekend.  I should also record that the husband could not travel to Australia at other times in January because his new wife is expecting to give birth to their child during that month, and I should also add that the application did not seek to go beyond the end of January 2009 given that at this stage it is still anticipated that the trial of all matters including in relation to child issues will be heard in February 2009.

6. For the wife’s part, she proposed that the time spent be on the weekends commencing 21 November 2008, 12 December 2008 and 2 January 2009, and then finally 30 January 2009, but, of course, only in accordance with her proposal for the time spent to be during the evening on the Friday and during the day on each of the Saturday and the Sunday.  The wife said, though, that if I made an order in terms of what the husband sought, there was no practical impediment for there to be time spent on the weekend commencing on 5 December 2008.

Background

1. The wife was born in March 1962 and is now aged 46 years. 

2. The husband was born in October 1962 and is also now aged 46 years. 

3. The parties married in January 1994. 

4. In June 1996 the parties’ child, S, was born and he is now aged 12 years.  The child has Autism Spectrum Disorder and lives in Adelaide with the wife.  The child attends P School where he is currently in Year 5. 

5. The parties separated in January 2005.  The husband moved to Hong Kong where he continues to live with his new wife, Ms G, and her son. 

6. The wife filed a Form 1 Application for Final Orders in this Court on 15 February 2005. 

7. The parties divorce was granted on 14 February 2006. 

8. Various interim parenting orders were made during the course of this matter progressing to final hearing.

9. The trial of the child issues commenced before Bell J on 5 March 2007, however, the child issues were settled and final parenting orders were made by consent on that date.  Those orders provided, inter alia, for the child to live with the wife and to spend time with the husband.  Initially, the child was to spend time during the day with the husband on specified dates and times commencing on 23 March 2007.  Overnight time was to commence on 8 June 2007 with the husband to then spend time with the child from 5:00pm Friday to 8:00pm Saturday and 11:00am to 4:00pm Sunday and thereafter during the same times on a three weekly cycle during the school terms and on two occasions during each mid-term school holiday.  The time during Summer holidays was to be as agreed.  For the purpose of the husband’s time with the child, the husband was to collect the child from the wife’s residence in the presence of a therapist, the therapist was to remain for the first hour of the husband’s time with the child and the husband was to return the child to the wife’s residence.  The therapists specified in the order were one of Mr GC, Mr MC, Mr SH, Mr M or such other therapist as agreed or ordered by the Court.   Orders were also made for the husband to have time with the child by telephone or video conference on two occasions per week.  Paragraph 11 of the orders provided:

   “That the wife use her best endeavours to prepare and ensure the child attends for overnight time with the husband and to include the use of the visual schedule board for that purpose and the husband shall provide information to the wife regarding his proposed activities for the time…however if the child in the presence of the therapist refuses to attend for time with the husband and can not [sic] be made to go without the use of force, the child shall not be required to attend.”

   Provision was also made in the order that if the child wished to return home during his time with the husband, the husband was to forthwith return the child to the wife.  The question of the husband’s time with the child interstate or overseas was reserved. 

10. Subsequent to the orders of 5 March 2007 and up to 17 December 2007, the husband spent very limited time with the child.  Specifically, those occasions were as follows:

    i)18 April 2007 for 15 minutes.

    ii)19 April 2007 for 7 hours.

    iii)23 April 2007 for 5 minutes.

    iv)18 May 2007 for 10 minutes.

    v)19 May 2007 for 10 minutes.

    vi)6 November 2007 for 1 hour and 20 minutes.

    vii)9 November 2007 for 50 minutes.

    viii)10 November 2007 for 5 hours.

    ix)11 November 2007 for 5 hours.

    x)2 December 2007 for 10 minutes.

    The only time that the husband was alone with the child was on 19 April 2007. 

11. On 26 March, 26 April and 3 August 2007, the husband filed Applications in the Federal Magistrates Court alleging the wife contravened the orders of 5 March 2007 with respect to the husband spending time with the child.  These applications were transferred to this Court. 

12. On 27 August 2007, the husband filed an Amended Response to an application for final orders seeking that all prior parenting orders be discharged and new orders be put in place with respect to the child. 

13. On 12 October 2007, the wife filed a Reply to the husband’s Amended Response seeking that the husband’s application be dismissed.

14. On 31 October 2007, I made orders again appointing an Independent Children’s Lawyer in this matter.

15. On 7 November 2007, the husband’s Contravention Applications came before Judicial Registrar Forbes.  However, orders were made by consent providing for the husband to spend specified time with the child on 9, 10, 11 and 30 November and 1 and 2 December 2007 with a therapist to be present for the duration of the first three occasions and for the first hour of the subsequent three occasions.  The orders of 5 March 2007 were otherwise to remain in full force.  The husband withdrew the Contravention Applications. 

16. On 16 November 2007, the husband filed an Application in a Case seeking orders for the 2007/2008 Summer holiday period.

17. On 11 December 2007, I held a first day of trial in this matter pursuant to the provisions of Division 12A of Part VII of the Family Law Act.  At that time, the wife filed an Amended Reply outlining the orders she sought with respect to the husband spending time with the child.  The trial was adjourned part heard to 17 December 2007.

18. On 17 December 2007 I made interim parenting orders.  Those orders provided for the father to spend time with the child on specified dates and times between 20 December 2007 and 24 February 2008.  This included one period of overnight time.  For the purposes of the husband’s time, the child was to be delivered to the husband’s residence by the wife and a therapist at the commencement and the husband was to return the child to the wife’s residence at the conclusion.  Specific orders were also made in relation to the presence of a therapist during the husband’s time with the child including that a therapist be present for the entirety of the first two occasions.  After the first two occasions, the husband’s current wife, Ms AW, was permitted to be present.  Paragraphs 7 and 8(a), (b) and (d) of the orders made on 5 March 2007 with respect to the time the husband was to spend with the child, were suspended until further order on the basis that the conclusion hearing would take place in March 2008. 

19. Following the orders of 17 December 2007, the husband spent the following time with the child: 

    i)20 December 2007 for 5 hours; and

    ii)21 December 2007 for 4 hours and 30 minutes. 

    The husband has not spent time with the child since 21 December 2007.  The reasons, if any, given by the wife for the lack of compliance with my orders include ill health or the child’s wishes.  However, disturbingly, on a number of occasions there appears to have been no explanation and no forewarning but that may need to be tested at trial given, of course, this is an interim hearing.

20. On 1 February 2008, the trial with respect to child issues and property settlement, listed to commence on 3 March 2008, was vacated by consent. 

21. On 20 June 2008, the husband filed the application in a case which is currently before me for determination seeking interim parenting orders. 

22. On 18 July 2008, the wife filed her response to the husband’s application in a case.

23. In July 2008, telephone contact commenced between the husband and the child, and that is continuing. 

24. On 16 October 2008, Dr C, consulting psychologist, the single expert agreed upon by the parties and instructed by the Independent Children’s Lawyer, completed a Family Assessment Report.

Evidence

1. For the purposes of this application, the husband relied on the following documents:

   i)         Husband’s Application in a Case filed 20 June 2008;

   ii)Affidavit of husband filed 20 June 2008;

   iii)Affidavit of husband filed 29 August 2008;

   iv)Affidavit of Ms H filed 14 February 2007;

   v)Report of Dr C dated 16 October 2008 (Annexed to affidavit of Ms Bills filed 22 October 2008);

   vi)List of orders sought by the husband from husband’s solicitor to the wife’s solicitor dated 22 October 2008;

   vii)List of orders sought by the wife dated 22 August 2008.

2. The wife relied on the following documents: 

   i)the wife’s response to the application in a case;

   ii)the affidavit of the wife filed on 18 July 2008;

   iii)the affidavit of the wife filed on 7 December 2007;

   iv)the affidavit of Dr A filed on 30 August 2007. 

3. In addition, the wife also indicated reference would be made to three further documents, namely the affidavit of Ms HN filed 16 February 2007, the affidavit of the wife filed 16 February 2007 and the affidavit of Mr SH filed 30 August 2007.

Issues in dispute

1. There is no dispute between the parties that orders should be made providing for the husband to spend time with the child.  The dispute between the parties relates to the nature and the practicalities of such time.  Specifically, the following issues require determination:

   i)Whether the child should spend overnight time with the husband.  The husband seeks that the child spend overnight time with him.  The wife opposes overnight time and proposes specified times during the day.  The Independent Children’s Lawyer supports the child spending overnight time with the husband.

   ii)Where handovers should occur.  It is the husband’s position that he collect the child from and return the child to school.  During school holidays the husband sought for the child to be delivered to his residence by either Mr SH or Mr M with the husband returning the child to the wife’s residence.  The wife opposes this proposal and does not want to alter the child’s routine of coming straight home from school.  The wife does not want to create any difficulty in the child attending school or for there to be any “scene” during handovers at the school, potentially witnessed by his friends or their parents.  The wife proposes handovers occur at X Café in the presence of a therapist.  The Independent Children’s Lawyer opposes handovers occurring at X Café and supports school handovers.  She does say though that during the school holidays, she supports handovers as proposed by the husband but on the basis of there first being two or three occasions of weekend time spent during the school term.

   iii)Whether a therapist should be present during the husband’s time with the child.  The husband opposes any therapist being present during his time with the child.  The wife seeks that a therapist be present for the duration of the husband’s time with the child.  The Independent Children’s Lawyer does not consider that a therapist should be present during the husband’s time with the child and that it is necessary for the father to exercise parental responsibility alone.

1. A further issued raised by Dr C in his report of 16 October 2008 relates to the husband spending time with the child at his home in Hong Kong.  It is Dr C’s recommendation that arrangements could be made for the child to travel to Hong Kong with the husband following the child successfully spending time with the husband on three occasions. Included in the orders sought by the husband, is that he spend time with the child in Hong Kong.  Any order for the child to spend time with the husband overseas was opposed by the wife and the Independent Children’s Lawyer. Mr Ackman for the husband indicated, however, that the husband was not pressing for an order at this time for the child to spend time with him in Hong Kong in the short term given the expectation that the final hearing would take place in February next year.

2. Further matters which arise for my consideration are on which weekend should the husband spend time with the child, whether there should be an extended period of time during the school holidays and whether, if I am minded to make orders for the child to spend an entire weekend with his father that that occur on the first occasion or whether there is a regime put in place building up to that.

3. When the husband can spend time with the child is complicated, however, by the fact that the husband resides in Hong Kong.  The Independent Children’s Lawyer is of the view that the husband’s time with the child should commence with a full weekend from after school Friday to before school Monday and not commence, for example, on the Saturday.

The Law

1. The Full Court in Goode & Goode (2006) FLC 93-286 clearly articulated the approach to be taken in interim proceedings following the introduction of the shared parental responsibility amendments in July 2006. The required steps are outlined at p 80,903 of the judgment:

   “(a) identifying the competing proposals of the parties;

   (b)  identifying the issues in dispute in the interim hearing;

   (c)   identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child's best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child's best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child's best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child's best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”

2. Now, in this case, although complex, the issues are narrow and there is no dispute, for example, about parental responsibility, with whom the child should live, whether there should be a meaningful relationship between the father and the child and there is no issue of family violence.  I repeat, accepting that it is in the child’s best interests to spend time with his father, the real issue is, given the child’s condition and given the lack of success with orders in the past, how should the time the child spends with his father be structured to ensure that it occurs.  Thus it is unnecessary in my view to spend much time, if any, in slavishly addressing all of the requirements set out in Goode & Goode (supra).

Family Assessment Report

1. Dr C has prepared the most recent Family Assessment Report in this matter dated 16 October 2008.  Dr C, inter alia, recommended the following with respect to the husband’s time with the child:

   “2.[The child] should be in the care of his father as much as the father’s circumstances and travel limitations permit.  This should be without the presence of third persons of any kind.  It should include both weekend access and split school holiday arrangements.

   3.…

   It is recommended that [the father] should collect [the child] from school directly on a Friday afternoon and arrange for his return to school on the following Monday morning…

   4.…

   Normal weekend access visits should be for 3 nights and 2 days… [The child] should be able to have unlimited telephone contact with his mother during these arrangements, but it should be an explicit rule that he cannot move back and forth between households at his idiosyncratic request…

   5.[The father] should be able to have [the child] stay with him and his own family during school and Christmas holidays on a 50/50 shared basis, subject to [the mother’s] own requirements regarding holidays etc, and [the father’s] own family and business commitments in Hong Kong.

   …

   7.It should be left open for [the father] to arrange for [the child] to fly to Hong Kong for part of some school holidays in order for [the child] to become familiar with [the father’s] new family.  No such visit should be planned nor instigated until a stable and consistent series of 3 successful access visits has taken place in Adelaide.

   …”

Discussion

1. The submissions of senior counsel for the husband, Mr Ackman, were largely centred around the report of Dr C, which Mr Ackman submitted simplified the matters before the Court.  Mr Ackman highlighted numerous parts of Dr C’s report in support of the husband’s application with particular reference to:

   i)Dr C’s assessment of the child, and the results of tests conducted on the child, including Dr C’s assessment that the child suffers an intellectual disability of which both parties were unaware.  That is at pages 15 and 16 of his report.

   ii)Dr C’s summary of his interviews with the husband and the wife, including Dr C’s finding that the wife is very much influence by Dr A’s recommendations.

   iii)The recommendations of Dr C referred to above which are reflected in the orders sought by the husband.  As mention previously, though, the husband is not pressing for the child to travel to Hong Kong given that the trial may be heard in February 2009.

2. Mr Ackman made particular reference to the following extracts from Dr C’s report which he submits articulately summaries the problems that arise in this matter:

   Firstly,

   “[The child] operates within his comfort zone at home, where he basically gets his own way in most things most of the time.  His immediate family or paid helpers work hard to ‘fit’ around him.  He is very much ‘the little prince.’  He is decidedly out of his comfort zone at school, yet that is where he makes the greatest gains in terms of social engagement and learning new rules.”

   Then: 

   “However, the effort made to care for him within the mother’s family, to deal with his tantrums, to control and manage his immature (for age) urges and interests, and to deal with his arousal and excitability have led to a situation where he still expects everything on his terms- the ‘little prince’ phenomenon.  Everybody in his mother’s extended family appears to have been drawn into this, especially those who have made a paying career out of their involvement due to the father’s capacity to pay.  It seems that a ‘cottage industry’ has developed.  The intention may be good but the practice is only reinforcing [the child’s] immaturity, egocentricity and ASD symptoms. 

   For this reason [the child’s] further improvements must and can come from regular contact and interaction with his father and his father’s family as well as real peers and adults in the wider community.  It is why it is also important that [the child] enter an Adolescent Special Education Unit so that he becomes more able to interact and learn with other youths with disabilities. 

   He needs to make his own real friends, not paid ‘pretend’ friends, where he will also be regularly challenged within safe and caring limits…”

   And finally:

   There is “evident improvement in the last year or two in [the child’s] emotional self regulation.  He is still easily distracted, but seems to have learnt to contain his arousal and ‘over the top’ excitability and anxiety, especially in the classroom context.  He seems to cope with new faces and situations well, although his mother still appears to try and maintain a board of planned activities at home.  A stark contrast is thus evidenced.  He no longer throws tantrums, it seems, he just gets his own way.”

3. Mr Ackman referred to the difficulties in the past associated with the husband’s attempts to spend time with the child and highlighted that the husband has not spent time with the child since 21 December 2007.  It was submitted that the independent reports prepared in this matter, firstly by Ms H and now Dr C indicate that the child has a significant and meaningful relationship with the husband and that the wife is failing to encourage this relationship and “micromanaging” the time the child spends with his father.  It was submitted that the husband’s persistence in continuing to travel to Adelaide very three weeks for the purposes of seeing the child despite not having spent time with the child since December 2007 is evidence of his commitment to his son.  Mr Ackman indicated that if the husband is successful in obtaining orders in the terms sought and such orders are still not complied with, the husband reserves his position with respect to seeking orders for the child to live with him.

4. Mr Ackman outlined the husband’s opposition to the conditions the wife seeks to place on the husband’s time with the child including that a therapist be present, that no one other than the husband and the therapist be present during the husband’s time, and the use of the visual schedule board.  The husband does not believe he should be required to maintain a “board of planned activities”.  He also considers it is no longer appropriate for members of the wife’s family to be “on the payroll” with respect to the child’s care.  The husband agrees that the issue of handovers needs careful consideration but believes this can occur discreetly at the child’s school.

5. It was submitted that the wife uses Dr A’s advice and recommendations to support her case that the child should not have to spend time with the husband if he does not wish to.  It is the position of the husband that it is not in the child’s best interests for any orders to be made which allows the husband’s time to be subject to the child’s wishes.  It is the husband’s position that it is pivotal to the child’s well-being that the meaningful relationship between the husband and the child be maintained and seeks that he spend significant time with the child in accordance with the recommendations of Dr C.

6. Ms Pyke, senior counsel for the wife, raised in her submissions numerous criticisms and concerns regarding the Family Assessment Report prepared by Dr C.  These criticisms include:

   i)That Dr C has gone outside the ambit of his instructions and has addressed matters he was not asked to.  In particular, it is said Dr C has commented on the testing and treatment of the child, on his own perceptions of autism and how autism and intellectual disability relate and his opinions as to what the parties should do with respect to the child’s future treatment, education and advancement in the community.  It is submitted that these are all areas Dr C was not instructed to address for the purposes of his report.

   ii)That the report is flawed in a number of respects including:

   (a)That Dr C did not speak with people he was instructed to by the Independent Children’s Lawyer, Ms Bills.  Ms Pyke highlighted that Dr C did not interview the child’s school teacher, the husband’s wife or contact Dr A.  Ms Pyke placed significant emphasis on Dr C’s failure to contact Dr A who has been involved in treating the child for a number of years, namely from March 2003 to September 2004 and then from June 2006 to the present time.

   (b)Following on from the previous point, that Dr C made inappropriate criticisms of Dr A without conferring with Dr A with respect to the child.  These include criticisms of the treatment developed for the child and regarding tests Dr C claimed had not been conducted by Dr A.  It was also emphasised, and confirmed by the Independent Children’s Lawyer, that Dr C failed to have regard to the most recent report of Dr A which is annexure “ES1” to the affidavit of the wife filed on 18 July 2008.

   (c)That Dr C gave “scant” attention to the child’s treatment as developed by Dr A and did not recognise the gains made by the child as a result.

   (d)The failure to require the husband to complete forms regarding his perceptions of the child as was required of the wife.

   (e)That Dr C did not conduct any testing or observation of the child in the community and his observations were limited to the child at home and for a short time at school; and

   (f)That Dr C misconceived or misunderstood a number of matters, including the use of ABA routines, the role that the child’s extended family has in his life and the complexities of the child’s life.

   iii)That Dr C unfairly criticised the wife for following the recommendations of Dr A with respect to the child’s treatment.

   iv)That Dr C has made “sweeping and general assertions” for which there was no real basis and following only limited experience with the family.

   v)That no justification or explanation is provided for Dr C’s findings and recommendations and his conclusions are unsustainable and based on a “fundamentally flawed assessment”.

7. Ms Pyke also raised concerns regarding a number of specific comments made by Dr C including his findings that the child has reached a “plateau” with respect to his academic skills, that he is “comfortable in the world of a six year old” and is a “little prince” who, at home, gets his own way most of the time.

8. Ms Pyke made significant reference to the affidavit of Dr A filed 30 August 2007 and Dr A’s report dated March 2008 to highlight the alleged inadequacies of Dr C’s report.

9. I am in no position in a hearing like this to make a finding as to whether Dr C’s diagnosis is correct or whether the programme set out by Dr A and adopted by the parties needs to remain and, indeed, they are not matters which are the subject of any application before me.

10. However, despite the criticisms made by Ms Pyke of Dr C’s report, some of which I accept but equally some of which I do not yet accept and further evidence will, presumably, be needed at trial, he is the single expert witness appointed by the parties and his recommendations are supported by the Independent Children’s Lawyer.  His assessment and recommendations as to the time the child should spend with his father also have some similarity with the assessment and recommendations of the previous single expert witness, Ms H.  It is instructive to refer to some of the comments made by Ms H in her report of 1 February 2007.  For example, Ms H described the child and the husband as sharing a “strong and positive relationship”. She said that the child was “happy and relaxed in his father’s care, and impressed as comfortable in his father’s apartment.  [The child] referred to his father to show him things, asked questions, was compliant with requests, helped himself to his desired objects within the apartment and there were no signs of anxiety during the two visits conducted”.

11. Further, Ms H concluded that the child was “likely to manage contact with his father without difficulty…  There was nothing to suggest that [the child] had been placed at risk in his father’s care such that ongoing supervision would be required.  [The father] impresses as well aware of the need to supervise [the child] to ensure his safety.”   

12. The final reference I want to highlight is where Ms H reported that the wife “did not consider that [the child] should have to attend visits with his father or talk with his father via telephone if he did not want to.  This is based on her interpretation that [the child] does not feel secure with his father.”  And Ms  H further concluded that the “introduction of overnight stays remains an important part of the future relationship he ([the child]) shares with [the father] albeit that there continues to be a slow transition to introducing these.”

13. The criticisms which I do accept of Dr C’s report relate not to his diagnosis or to the suggestion that he has gone outside his brief, because I consider it absolutely necessary for Dr C to assess the child before he could make any recommendations and provide any useful report for this Court, but to his failure to at least speak with Dr A given that he was critical of Dr A’s approach and alleged failure to administer objective tests.  Dr C also overlooked the most recent report of Dr A which, in my view, lessens the weight of some of the comments that Dr C has made.  For example, Dr C said that he did not contact Dr A in part because he understood that Dr A had not seen the child for 13 months whereas, in fact, Dr A had seen the child in March 2008. 

14. However, that does not take anything away from the fact that Dr C is an expert in the field.  He is independent unlike Dr A.  He was instructed jointly by the parties.  He has made his assessment.  He has undertaken relevant testing.  He has spoken to the persons whom he considers it necessary to speak to at this point and thus I am prepared to rely, to a certain extent, on his report for the purposes of this interim hearing.  What happens at trial remains to be seen.

15. Dr C recommended overnight time and that is supported by the Independent Children’s Lawyer.  Indeed, that has been a consistent recommendation of the independent experts.  I refer again to Ms H’s previous report.  There is no evidence to say that overnight time is not appropriate or that the child cannot cope with it, and in fact, the wife consented to the introduction of overnight time on 5 March 2007. 

16. As I said in a judgment delivered in 2006 in this matter, the husband had a history of direct involvement in caring for the child prior to separation and, of course, it is said that the child has improved in his behaviour since then and certainly since 5 March 2007. There is evidence that tells me that the child can function well outside of his home and that he does not always need the “wrap around services” so called that he receives at home.  The wife’s case is that the reason for the improvement in the child is the highly structured, well-supported, comfortable, and stress free environment of the child’s home and the support that he receives at school and in the community.  She says that cannot be achieved with the husband’s proposal.  Dr C considers otherwise as does the Independent Children’s Lawyer, and, of course, the husband is well aware of the child’s condition and what is needed to care for him, and that is a point that appears to be overlooked.  I am not dealing with a stranger who has had no involvement in the child’s care in the past.  Indeed, it is entirely the opposite.  In any event, it seems to me that the key to this is the child’s progress at school.  There, although a therapist is present, he is not subject to the same level of “wrap around services” that he receives at the home where I would understand his every whim is complied with.

1. There is reason to be optimistic that spending time with his father, including overnight, will also allow him to improve further and meet other necessary challenges.  To repeat, and it is worth repeating, it must be remembered that with his father he will still be in a loving, caring environment, and his father has the experience and knowledge from days gone by of how to look after him.

2. However, as has been said, and as is now apparent, the father needs to assume responsibility for the child when he is with him and not let the child dictate what happens.  If the father does not do this, then I do not know what he expects this Court to do in terms of orders that may be made now or in the future. 

3. I am not taken with the mother’s proposal to advance this matter.  It is simply more of the same.  It has been tried but without success.  There needs to be a circuit breaker and Dr C has opened the door to a fresh approach.  That is not to say that I accept all of his recommendations at this stage of the matter.  It is still necessary to tread somewhat cautiously but only from the point of view that the child has not spent any significant time with his father for a lengthy period of time.  Thus, I am reluctant to move straight to an entire weekend but that position should be reached sooner rather than later. 

4. Moreover, I consider that for the first occasion, a therapist should be present for all of the time.  Despite what Dr C says I cannot ignore the fact that the presence of a therapist at home and at school has been a constant in the child’s life and that should continue at least initially when he is with the father.  But that therapist should not be a member of the wife’s family.  There is evidence before me of problems on both sides resulting from the involvement of members of the wife’s family.  I make no finding as to whose fault that is, and that may be, and presumably will be, a matter for trial, but in this interim hearing and with these interim orders I want to try and avoid as many problems as I can to get to what both parties tell me they want which is to ensure that the child spends time with his father.

5. Now it may be that special arrangements will need to be made for a therapist who is not a member of the wife’s family to be present in the way that I am proposing to order, but I am going to provide for the husband and the wife to agree upon a therapist if that causes a problem, and if nothing can be agreed, then this matter merely needs to come back to me for further determination in relation to that issue.

6. The other specific issue raised with me in this context is the use or otherwise of the visual schedule board.  The Independent Children’s Lawyer interpreted Dr C in his report as suggesting that it is not used at school and thus it is not needed when the child spends time with his father.  Ms Pyke suggests that that is incorrect, but whatever the situation is, it is still a part of the structure of the child’s life and it should continue for the time being to the extent necessary to provide the best chance of the child actually spending time with the husband. 

7. I propose to order that the child spend time with his father on the weekends commencing 21 November and 5 December 2008.  I propose that the child be collected from school by his father on these occasions.  Although the mother is opposed to that, I consider that that may be the way forward to ensuring that the child does spend time with his father.  Dr C certainly suggests this and it is supported by the Independent Children’s Lawyer.

8. The child should then stay overnight with his father on the first weekend, namely the weekend commencing 21 November until 8:00pm on the Saturday night, and on the second weekend, namely the weekend commencing 5 December, the child should stay with his father until 6:00pm on the Sunday night.  Although Dr C recommends that time spent be for the entire weekend with a return to school on the Monday, I am not satisfied that that should happen just yet for the reasons I have already expressed.  Moreover, I do not see the same need to have handover at the school on the Monday as there is to have handover at the school on the Friday. 

9. Then school holidays start on 9 December 2008 and it is to be hoped that with the success of the previous two weekends there can be a successful handover on 2 January when the father can next come to Australia.  However, this period should still be only for three nights being the next step in what, I repeat, needs to be a cautious approach.  Then there should be a similar period of time commencing on 30 January 2009 which is the next occasion when the father can come to Australia.  I am told the child will still be on school holidays at that time and thus handover cannot obviously be at the school.  Handovers during these holiday periods should be on the basis of a therapist not a member of the wife’s family delivering the chid to the husband’s apartment at the commencement of the time to be spent, and the husband returning the child to the mother at her residence at the conclusion of that time.  I share the concerns of the Independent Children’s Lawyer at handovers being at, for example, X Café. 

10. With the therapist, the therapist should be present for the entirety of the first period of time but thereafter I propose to make an order similar in terms to the order I made on 17 December 2007. 

11. I will also make an order that the wife should not be present at any handovers at the commencement of the time to be spent.  She will obviously need to be present at the conclusion of the time but I propose to further order that she ensure that none of her relatives are present either at the commencement or at the conclusion of any period of time.  There is, as I say, evidence of problems and difficulties that have arisen in the past about that and to repeat, without making any finding as to who is responsible for that, I want to ensure that the child has the best chance of spending time with his father and enjoying that time.

12. I also note that the order of 5 March 2007 still continues.  There was an issue as to whether paragraphs 7 and 8(a), (b) and (d) remain suspended pursuant to an order of mine but I do not need to address that in the circumstances that have developed.  What I do need to do though is now suspend those paragraphs of that order which I consider are unnecessary given the interim orders that I am about to make.

I certify that the preceding 68 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 14 November 2008.

Associate