Summers & Nathan

[2005] FamCA 1406

[2005] FamCA 1406

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA

AT DANDENONG

NO. DGF 2564 of 1997

IN THE MARRIAGE OF

SUMMERS

(Husband)

and

NATHAN

(Wife)

and

CHILD REPRESENTATIVE

JUDGMENT DELIVERED BY
JUDICIAL REGISTRAR RAMSDEN

CORAM  :          JUDICIAL REGISTRAR RAMSDEN

DATE OF HEARING          :          24^th August 2004

DATE OF JUDGMENT      :          9^th March 2005

APPEARANCES:

Ms Elleray, of Counsel, instructed by Michael Reid, Solicitors, Victoria Legal Aid, of DX 211804, Frankston in the state of Victoria on behalf of the Husband.

Mr Smith of Counsel, instructed by Robert Digala, of Digala & Associates, Solicitors of DX 34402, Doncaster East in the State of Victoria on behalf of the Mother.

Ms Thomson of Campbel Lord Lawyers, Solicitors of Level 4, 414 Lonsdale Street, Melbourne in the State of Victoria as the Child Representative.

Summers      DGF 2564/1997

1. It is necessary in my view to provide some details of the history of the litigation between [Mr] …Summers (“the husband”) and [Ms] … Nathan (“the wife”) concerning applications for parenting orders with respect to the two children of the marriage, now aged 14 and almost 12 years, so as to place the applications with which I am concerned in context.

1. This does not require me, however, to undertake an exhaustive analysis.

1. By orders of the Court made the 20^th August, 1997, the children, L,  born … 1990 and J  born …1993, were to reside with the wife and have alternate weekend contact with the husband.

1. The husband’s contact was either suspended or reduced on various occasions by subsequent orders made either in contravention proceedings instituted by the husband, or as the result of an interim application to suspend contact brought by the wife.

1. By form 3 application field the 8^th January 2001, the wife re-instated proceedings for final parenting orders, seeking in effect that all previous orders for contact be discharged and that the children have no contact with the husband.

1. The husband filed what purported to be an amended response on 26^th April 2002, seeking as his preference that the children reside with him, and have defined contact with the wife, or alternatively that should the wife retain their residence he have increasingly frequent and lengthier contact.

1. I shall refer hereafter to the proceedings commenced by the wife on 8^th January, 2001, and the concomitant response by the husband, as “the substantive proceedings”.

1. Those proceedings were first set down for trial on 16^th December, 2002, but not having been reached on that occasion were re-fixed for 10^th February, 2003.

1. On 10^th February, 2003, the case came before the Honourable Justice Wilczek but did not proceed to trial.  Rather the following orders, omitting various words, were made on that occasion:

   “1.That the proceedings ….  be taken out of the Defended List, and that all such extant applications be adjourned to the Trial Notice List.

   2.That the husband pay to the wife the wife’s costs of and incidental to this day, such costs to be taxed in the event that there is no agreement within 14 days.

   3.That in the event the husband’s Review of his Application for additional funds from Victoria Legal Aid, (as detailed …  in the Notation hereunder) is successful, and the proceedings then come before the Court in the Trial Notice List as provided  …. in Order (1) herein, then the wife be at liberty to renew her oral application of this day, namely, that no final hearing should be fixed until the husband has complied with previous orders for costs against him (including orders made on 26^th April 2000, 16 May 2000, 3 October 2000, 28 November 2000 (less any credits)) and/or the costs order this day ….

   THE COURT NOTES

   It is noted that the husband, this day, sought an adjournment of the proceedings because he wishes to engage, as a professional expert witness, a person with expertise on the topic of Parental Alienation Syndrome, but he has not been successful in obtaining an additional grant of legal aid from Victoria Legal Aid to enable him to do so, and he wishes to review the decision of Victoria Legal Aid.”

1. The substantive proceedings were listed before a Deputy Registrar in the Trial Notice List on 21^st August, 2003, when they were transferred into court before His Honour Justice Wilczek.

1. Again omitting certain words, the orders of the court made 21 August 2003 were as follows:

   “1.That, further to Order (3) of the Orders of 10 February, 2003, the wife be granted leave to make an oral application to seek an order as follows namely:

   ‘That the final hearing of all extant applications not be fixed until the husband has complied with previous orders for costs that have been made for payment by him to the wife namely:

   (i)an order on 11 January 2000 for $650.00;

   (ii)an order on 16 May 2000 for $1,900.00;

   (iii)an order on 28 November 2000 for $1,268.00;

   (iv)agreed costs of and incidental to 10 February 2003, as agreed by way of open letter from the husband’s solicitors $5,813.00’.

   2.That in order to pursue her application as referred to in Order (1), the wife have liberty to approach the Caseflow Co-Ordinator at the Dandenong Registry for a half day listing in the Judicial Long Interim Hearing List ….”

1. Whether pursuant to the orders of 21 August, 2003, or otherwise, the wife caused a Form 8 application  to be filed on 18^th September, 2003, seeking the following orders:

   “1.That the final hearing of all extant applications not be fixed until the husband has complied with previous orders for costs that have been made for payment by him to the wife namely

   (i)an order on 11 January 2000 for $650.00;

   (ii)an order on 16 May 2000 for $1,900.00;

   (iii)an order on 28 November 2000 for $1,268.00;

   (iv)agreed costs of and incidental to 10 February 2003, as agreed by way of open letter from the husband’s solicitors $5,813.00.

   2.That the final hearing of all extant applications not be fixed until the husband has deposited the amount of $20,000.00 into the trust account of the wife’s solicitors as security for the wife’s costs of and incidental to the final hearing.

   3.Such further or other order as deemed fit by this Honourable Court.”

1. It is that application (“the instant application”) and the husband’s amended response filed 23 June, 2004, with which I am now concerned.

1. Again some brief history of the progress of the instant application is warranted.

1. It was first set down before me on 4 December, 2003, being a day for the hearing of numerous matters in the Judicial Duty List, and not for longer matters as contemplated by paragraph 2 of the order of Wilczek J. made 21 August, 2003.

1. In those circumstances, the parties agreed to the adjournment of the matter to 10 February, 2004, in the appropriate list. Given that the matter appeared to have been listed inappropriately, I reserved liberty to all parties to apply for a certificate of indemnity under the provisions of the Federal Proceedings (Costs) Act in respect of the costs of the day.

1. By the time the matter next came before me on 10 February, 2004, the huband had recently filed a Form 8A Response, seeking the following orders:

   “1.That a Trial Notice List date be fixed with priority, at the Dandenong Registry of the Family Court of Australia.

   2.That pursuant to section 62G(2) of the Family Law Act 1975 the parties, their spouses and the said (sic) children attend forthwith upon Mr. R, being a family and child counsellor with expertise on the topic of Parent Alienation Syndrome, for the purposes of the preparation of a Family Welfare Report to be made available to the Court and the parties, with the parties to:

   (a)provide to the said counsellor copies of all medical, counselling and schooling records and reports prepared in relation to the parties, their spouses and the said children, as may be requested by the said counsellor, and;

   (b)comply with all directions made by the said counsellor as to attendance by the parties, their spouses and the said children upon the said counsellor as and when required ….”

   4.(sic) Such further and other orders as this Honourable Court deems appropriate.”

1. Notwithstanding that the case had been estimated to take approximately half-a-day, the submissions of counsel had nowhere near concluded by the time of the court’s rising on 10^th February, and the proceedings were adjourned part-heard to the 18^th May, 2004, being the next available date for matters expected to take between one-half and one whole day.

1. Most regrettably, when the matter resumed on 18^th May, 2004, counsel for the husband, who had commenced her submissions on the previous occasion, failed to appear.  Given the tortuous history of the proceedings and the nature of the issues before the court, I failed to see that it would be in the interests of the parties or helpful to the court to require the husband’s solicitor to extemporize.  Accordingly, the proceedings were adjourned again to the next available date, namely the 10^th August 2004.

1. Counsel for the wife then became unavailable and the matter was further adjourned to the 24^th August, 2004, when counsels’ submissions were finally completed and judgment reserved.

1. By the time the matter resumed in August, the husband had filed an amended response whereby he sought the following orders:

   “1.That a Trial Notice List hearing date be fixed, with priority, at the Dandenong Registry of the Family Court of Australia.

   2.(a) That pursuant to Rule 15.45(I) of the Family Law Rules 2004, Mr. R, clinical psychologist, give expert evidence in relation to the issue of Parental Alienation Syndrome and the dispute between the parties regarding appropriate care arrangements for the children of the marriage, namely L born …1990 and J born …1993 (“the children”).

   (b)That pursuant to Rule 15.48 of the Family Law Rules 2004, Mr. R prepare a written report and provide copies of the said report to the Manager of the Dandenong Registry of the Family Court and the parties.

   (c)That pursuant to Rule 1.10 and Rule 15.46(g) of the Family Law Rules 2004, the parties:

   (i)provide to Mr. R copies of all medical, counselling and schooling records and reports prepared in relation to the parties, their spouses and the children, as may be requested by Mr. R;

   (ii)comply with all directions given by Mr. R as to attendance by the parties and the children upon himself for the purposes of assisting with the preparation of the written report referred to in paragraph 2(b) of these Orders;

   (d)That pursuant to Rule 15.47(1) the parties be equally liable to pay the fees and expenses incurred by Mr. R in preparing the written report referred to in paragraph 2(b) of these Orders;

   (e)That pursuant to Rule 15.47(2) the parties pay the fees and expenses referred to in paragraph 2(d) of these Orders when requested to do so by Mr. R;

   3.That pursuant to Rule 15.57 of the Family Law Rules 2004, the wife file and serve a document specifying:

   (a)the names, addresses and contact details of any school teachers who have taught the children in the past 5 years;

   (b)the names, addresses and contact details of any counsellor or medical practitioners including specialists, general practitioners and psychologists who are currently treating or have treated the children, the wife or her spouse in the past 5 years; and

   (c)details of anti-depressant medication or any other medication currently prescribed or prescribed over the last 5 years to the children, the wife or her spouse to treat mental health problems.

   4.That the wife’s Form 8 Application filed the 18 September 2003 be dismissed.

   5.Such further and other Orders as this Honourable Court deems appropriate.”

1. I propose to consider first the wife’s application that the substantive proceedings not proceed to trial until the husband has complied with previous orders or agreements to pay the wife by way of legal costs previously incurred the total sum of $9,630.00.

1. In this regard, I note the provisions of section 69F of the Family Law Act 1975 (“the Act”), as follows:

   “A court may proceed with the hearing of proceedings in relation to a child even though the person who instituted the proceedings has failed to comply with an order of the court or of another court having jurisdiction under this Act.”

1. At common law, the position was very different, and was conveniently expounded in the judgment of Romer L.J.  in Hadkinson v Hadkinson [1952] P. 285 at pages 288-289 (Somerville L.J. concurring), as follows:

   “It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged.  The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.  ‘A party who knows of an order, whether null and void, regular or irregular, cannot be permitted to disobey it…..  It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null and void or whether it was regular or irregular.  That they should come to the court and not take upon themselves to determine such a question:  that the course of a party knowing of an order which was null and irregular and who might be affected by it was plain.  He should apply to the court that it might be discharged.  As long as it existed it must not be disobeyed.’  (Per Lord Cottonham L.C. in CHUCK v CREMER, Cooper temp. Cott. 205,338).

Such being the nature of this obligation, two consequences will, in general, follow from its breach.  The first is that anyone who disobeys an order of the court (and I am not now considering disobedience of orders relating merely to matters of procedure) is in  contempt and may be punished by committal or attachment or otherwise.  The second is that no application to the court by such a person will be entertained until he has purged himself of his contempt ….   The rule, in its general form, cannot be open to question.  There are many reported cases in which the rule has been recognized and applied ….”.

1. Counsel for each of the parties advised the court that they had been unable to identify any case law in which the contempt alleged in support of an application to stay or dismiss proceedings relating to children concerned a failure to comply with a previous order to pay the other party’s legal costs.

1. While I have not found any such case with respect to the provisions of section 69F of the Act (or its predecessor, the former section 66) (the case of Foo and Foo (1994) FLC-482 having to do with the alleged failure of a husband to comply with an order to return children to the wife in Australia vis-à-vis the wife’s application that his answer and cross-application be struck out), there are two such cases decided under different legislative provisions of which I am aware.

1. In the case of Burnett v Burnett and Taylor (Co-Respondent) (1903) 20 W.N. (N.S.W) 168, the Full Court of the Supreme Court of New South Wales declined to allow the wife to take further steps in a suit for child contact until she had paid the costs of a similar previous proceedings as ordered on the dismissal thereof . These proceedings were conducted under the provisions of the Matrimonial Causes Act (1899 No 14) (N.S.W.)

1. In the matter of G. v L. (No 2) 4 F.L.R. 499, Gibson J. of the Supreme Court of Tasmania held that the court should in the exercise of discretion hear a husband’s application for residence or contact orders notwithstanding that he was in contempt of court by reason that he had failed to pay the costs previously ordered against him in proceedings for dissolution of his marriage to the respondent.

1. At page 499, His Honour said:

   “It is apparent that I have a discretion in the matter, and I exercise my discretion in favour of the applicant in this case for the following reasons:

   First, the contempt which he has committed is a contempt in respect of paying a sum for costs and the refusal to hear him would be rather in the nature of enforcing a pecuniary obligation.  Secondly, I think that the paramount consideration must be, as the Courts have recognized, the welfare of the children.  So that notwithstanding the applicant is in contempt the interest of the children overrides it for the purpose of supporting an exercise of my discretion enabling him to be heard”.

1. Although I do not quite understand the relevance of His Honour’s observations as to enforcement of pecuniary obligations, and note that the reasons advanced for the manner of the exercise of discretion were a model of brevity, his judgment has some persuasive authority in my view, particularly as it represents the first reported decision in point that I have perused since the paramountey of children’s interests was enshrined in statute.

1. At the time of the hearing of G. v L., in 1963, the proceedings were governed by the provisions of the Matrimonial Causes Act (No 104 of 1959).  Somewhat surprisingly, the learned trial judge referred to the common law requirement for courts considering residence of children issues to have to the children’s welfare as the paramount consideration without reference to the the provisions of section 85 of the said act.  That section provided:

   “(1)  In proceedings, with respect to the custody … of children of a marriage:

   (a)the court shall regard the interests of the children as the paramount consideration.”

1. The present equivalent is to be found in section 65E of the Family Law Act 1975:

   “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
   
   

2. Although Mushin J. considered that the Court had to regard the welfare of the children as the paramount consideration in determining to permit the husband to be heard in Foo and Foo, I consider with all due respect to His Honour that that case should not be regarded as decisive of the approach to be adopted in considering this present application.

1. Firstly, I note that I am not asked to consider any application for a parenting order at this stage (being an order for residence, contact or a specific issues order) so that I do not see that the provisions of section 65E of the Act apply.

1. Secondly, His Honour determined to exercise his discretion in such a fashion as to permit a respondent to participate in the proceedings in the hope that he would be more likely in those circumstances to return a child to the jurisdiction, thus allowing the applicant to enjoy the fruits of a previous interim residence order in her favour.  Foo and Foo was certainly not a case in which a contemnor was permitted to continue with an application he had instituted, based on “best interests” principles.

1. Finally, and most importantly, His Honour decided the case prior to the 1995 legislative amendments which, inter alia, saw the introduction of section 65E of the Act.

1. I consider that it is appropriate to have regard to the best interests of the children in a general sense, but not to elevate them to a position of paramountcy.  I derive support for this conclusion from the decision of the Full Court in B v B (Re: Jurisdiciton) 2003 Fam C.A. 105, and now cite paragraph 39 of the judgment:

   “In general, therefore, it may be said that the best interests principle does not govern various procedural and jurisdictional matters that arise prior to and in the course of parenting proceedings but that the child’s interests will normally be a relevant matter in exercising discretion on such matters and may, in many situations, be the most important matter”.

1. Although I am mindful that the court should be slow to deny parties an opportunity to bring a dispute concerning the upbringing of children to trial, at least where it appears that the proceedings are brought bona fide, I note that it is by no means inevitable that in this case the court will conclude that the subject children’s best interests have been promoted by this very protracted litigation.  Of course, I cannot anticipate what the outcome of the substantive proceedings may be, given that the causes of the alleged estrangement between the children and the husband remain to be tested, but it would be premature in my view to conclude that it would necessarily be inimical to the children’s bests interests to stay the proceedings at this stage.  

1. In the absence of any provisions within the various orders as to the time for payment, I consider that the husband was required on each occasion to make such payment forthwith.  The only explanation he has proffered for his various failures has been that he has been impecunious at all material times, and the best he now offers is that he hopes he will obtain employment which will enable him to meet his obligations.

1. So numerous have been the husband’s failures to comply with previous orders as to costs, however, and so prepared it seems has he been to simply ignore his obligations without seeking any relief by way of appeal or variation, that his conduct bespeaks an indifference to the court’s authority.  In those circumstances, I  consider that a reasonable person’s confidence in the administration of justice would be shaken were he able to prosecute the substantive proceedings without first complying in substantial degree with his obligations as to the wife’s costs.  More particularly am I of this view when one considers the costs incurred by the wife to date in the substantive and related proceedings (said to be $48,000.00), and that the husband acknowledges a child support debt of $1,000.00 (while the wife contends that the debt is significantly greater).

1. I determine therefore that the substantive proceedings should not be permitted to continue further until such time as the husband has paid the sum of $5,000.00 towards his total liability of $9,630.00 on account of the wife’s costs.

1. I turn next to the wife’s application for the payment by the husband of $20,000.00 as security for the wife’s costs.

1. This aspect of the wife’s case was not pressed as vigorously by Mr. Smith of counsel as was the submission that the husband should be required to comply with the previous costs orders before being permitted to proceed further with the substantive proceedings, but nonetheless calls for determination.

1. The factors to be considered in an application for security for costs were detailed by the Full Court of this court in its judgment in the matter of Luadaka and Luadaka (1998) FLC 92-830.

1. As appears from the headnote to the report at page 85,496, such an application is to be determined on the basis that:

   “1.The provisions of section 117 Family Law Act apply to an application where a party is seeking security for costs which may be ordered in his or her favour in the event that the other party is unsuccessful.

   2.Apart from the provisions of s.117(2A), other matters which may be relevant to take into account, when determining whether to exercise the discretion to order security for costs, include:

   ·the means of the applicant to satisfy an order for costs if unsuccessful;

   ·the prospect of success of the application;

   ·whether the applicant’s claim is made bona fide;

   ·whether an order for costs would be oppressive or stifle the litigation;

   ·whether the litigation involves a matter of public importance;

   ·whether there has been delay in bringing the application for security;

   ·any difficulties in enforcing an order for costs; and

   ·the amount of costs to be incurred.”

1. I do not propose to analyse the financial circumstances of the parties as the husband appears to be somewhat indigent, and the wife asserts that she is primarily dependent for support upon her present husband. 

1. I do not consider that the other matters referred to in subsection 117(2A) of the Act are of particular relevance to the determination of this matter either, other than to note that the wife is not in receipt of a grant of legal aid, whereas the husband is so assisted.

1. As to various of the considerations detailed in Luadaka’s case, I am clearly in no position to determine that the husband’s application is not made bona fide.

1. Nor am I able to predict with any confidence the husband’s prospects of success in the substantive proceedings, either with respect to residence or alternatively in obtaining the re-establishment of workable contact arrangements with the children.

1. I am not inclined to think it particularly likely, however, that were the husband’s applications ultimately to fail, the court would determine that it was appropriate to depart from the prima facie position in section 117(I) of the Act whereby each party to the proceedings under the Act shall bear his or her own costs.

1. I am of the view that by far the weightiest consideration is that any further order for the husband to pay additional costs at this stage would be likely to stifle the litigation, and I have previously acknowledged the undesirability as a general rule of denying the opportunity for parties to have access to the courts concerning their children.

1. Therefore, I shall not accede to this aspect of the wife’s application.

1. Finally, I turn to the husband’s amended response.

1. Given my decision as to the “stay” of the proceedings, it is clearly unnecessary to determine the husband’s application for the appointment of a single expert witness, and various consequential and ancillary orders, at this stage.

1. I propose, however, to make some observations with respect to this aspect of the case given the time that was devoted to it in the submissions of counsel.

1. Such an application is brought pursuant to rule 15.45 of the Family Law Rules 2004, which provides, in so far as relevant:

   “(1)The court may, on application or on its own initiative, order that expert evidence be given by a single expert witness.

   (2)When considering whether to make an order under subrule (1), the court may take into account factors relevant to making the order, including:

   (a)the main purpose of these Rules (see rule 1.04) and  the purpose of this Part (see rule 15.42);

   (b)whether expert evidence on a particular issue is necessary;

   (c)the nature of the issue in dispute;

   (d)whether the issue falls within a substantially established area of knowledge; and

   (e)whether it is necessary for the court to have a range of opinion .…”.

1. It would certainly appear that the Full Court in Johnson v Johnson (1997) FLC 92-764 accepted that evidence of “Parental Alienation Syndrome” fell within “a substantially established area of knowledge”, thus satisfying the test which has been enshrined in the present rules.

1. The Court in that case had regard inter alia, to much of the material referred to by R in his affidavit filed in support of the husband’s application that he be appointed the single expert.

1. In addition to that material, however, I have had the opportunity to peruse some of the published works of Janet R. Johnston, Ph.D., who has written extensively on the subject of alienated children.

1. Apart from other appointments she may have held, or may now hold, I note that she is or was Director of Research at the Center for the Family in Transition, Corte Madera, CA, and Consulting Associate Professor in the Department of Sociology, Stanford University, Palo Alto, California.

2. In an article titled “Parental Alignments and Rejection:

   An Empirical Study of Alienation in Children in Divorce,” published in the Journal of the American Academy of Psychiatry and The Law, 31:158.70,2003, Dr. Johnston opined as follows:

   “The dilemma posed by a child’s strident rejection of one parent, generally accompanied by strong resistance or refusal to visit or have anything to do with that parent after divorce, has increasingly troubled family courts, professionals and parents alike.  The phenomena were first recognized by Wallerstein and Kelly (1976, 1980) in their seminal study on children of divorce.  They described it as an “unholy alliance” between a narcissistically enraged parent and a vulnerable older child or adolescent who together waged battle in efforts to hurt and punish the other parent.  Later, Gardner (1987, 1998) coined the term “parental alienation syndrome” (PAS) to describe a psychiatric disorder in a child that arises almost exclusively in the context of a custody dispute.  … Subsequently, the term “parental alienation” (PA) has been used more broadly to include all negative, alienating behaviors  of parents regardless of the child’s response (eg Darwell, 1998) and sometimes as an explanation for the child’s refusal to visit regardless of the parenting behaviors.

   ….

   Although a large body of clinical literature has described variations on the theme of parental alignments and alienation, providing some consensual validation for its existence as a phenomena …. the scientific basis for PAS as a diagnostic entity has been challenged by both mental health and legal professionals and the syndrome has not been accepted as a psychiatric diagnosis in DSM III or IV ….  This controversy has occurred in the virtual absence of empirical support for the reliable identification of PAS as a diagnostic identity,  its correlates and causes.

   ….

   Although there have been numerous references in the literature that make claims and counterclaims as well as expert testimony in the courtroom about the phenomena, the number that offer empirical data are preliminary and largely descriptive studies”.

1. In a further article published in the Family Court Review (2004) Vol 42(4) 22-628 co-authored with Joan B. Kelly and titled “Rejoinder to Gardner’s Commentary on Kelly and Johnston’s The Alienated Child: A Reformulation of Parental Alienation syndrome”, the authors said:

   “Finally, we reject Gardner’s proposal that PAS should be granted to the status of a diagnostic syndrome, or that it be included as a psychiatric category in future editions of the DSM. Proponents of PAS continue to insist, without adequate empirical evidence, that a brainwashing parent is the primary causal agent and ignore or minimize the role of all other agents of a child’s alienation. In this respect, PAS does not meet the American Psychiatric Association’s (1994) criteria for a syndrome which is defined as a cluster of symptoms, appearing together that characterize a disease that has ‘commonly recognized, or empirically verified pathogenesis, course, familial pattern, or treatment selection.’  Gardner’s claim that more than 175 authors have published at least 147 articles on PAS in peer-reviewed journals, does not address its validity (this issue, page 3).   There are many reasons that PAS may have gained such wide-spread attention, a primary one being that it provides custody litigants and their attorneys with a powerful weapon they can …. use in a court of law to defend themselves”  (Gardner, this issue, p11).”    

1. In the light of these articles and a large body of recent literature, I am not persuaded immediately that “P.A.S.” has been established irrevocably as being within a substantially established area of knowledge allowing for the receipt of expert evidence.

1. But even accepting that such evidence is properly receivable, and that R is appropriately qualified as a witness to give evidence in respect thereof, it seems to me that there would be strong, even irresistible grounds, for thinking that there should be a range of opinion received by the court (sub-rule 15.45(2) (e)).

1. In the circumstances, however, I shall adjourn the husband’s amended Form 2A Response until such time as he has satisfied the pre-conditions for continuance of the substantive proceedings.

The orders of the court will therefore be as follows:

1. That the final hearing of all extant applications be stayed until such time as the husband has paid to the wife the sum of $5,000.00 in part satisfaction of costs totalling $9,630.00 as previously ordered.

2. That the wife’s form 8 application filed the 18^th September, 2003, be otherwise dismissed.

3. That the husband’s amended response filed the 23^rd June, 2004, be adjourned to a date to be fixed but not until he has paid to the wife the said sum of $5,000.00 as referred to in paragraph 1 of these Orders.

I certify that the preceding 65
paragraphs are a true copy of the
reasons for judgment herein of
Judicial Registrar Ramsden

Dated the 9^th day of March 2005

…………………………………
       Associates