Bartels and Scholz

[2009] FamCA 1019

FAMILY COURT OF AUSTRALIA

BARTELS & SCHOLZ [2009] FamCA 1019

FAMILY LAW – CHILDREN – interim proceedings – with whom a child spends time pending trial – best interests of the children – father’s time with the children to continue to be supervised
FAMILY LAW – CHILDREN – with whom a child spends time – father’s time with the children over Christmas – father to spend time with the children on Christmas Eve and Boxing Day
FAMILY LAW – CHILDREN – handovers – not in the children’s best interests to change current handover arrangements

Family Law Act 1975 (Cth) ss 60CC & 65DAA

APPLICANT: Mr Bartels

RESPONDENT: Ms Scholz

INDEPENDENT CHILDREN’S LAWYER: Ms Cocks

FILE NUMBER: ADC 4998 of 2008

DATE DELIVERED: 19 October 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 19 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Childs

SOLICITOR FOR THE RESPONDENT: Legal Services Commission of SA

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Cocks

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Barr Lawyers

Orders

1. The matter is listed for a conclusion of trial for five [5] days commencing on 12 April 2010 before the Honourable Justice Dawe AND UPON NOTING that a Polish interpreter is required for the mother.

2. Dr G to prepare an updated family report concerning the welfare of the children including an observed interaction of each of the parents and the children on the basis that observation with the mother take place with the children before the observation takes place with the father and that report be available to the parties and the Court by 26 February 2010.

3. The mother to file and serve affidavits of herself and her witness M and the father to file and serve affidavits of himself, his parents and his sister by 4.00 pm on 12 March 2010.

4. Leave is given to the Independent Children’s Lawyer to subpoena Dr W to give evidence at the trial if necessary.

5. The father and the mother to notify the Independent Children’s Lawyer within thirty [30] days from today whether it will be necessary for Dr W to be called to be cross-examined or whether her report can be received by the Court as evidence of the matters contained therein.

6. This matter is adjourned to the 31 March 2010 at 9.15 am before the Honourable Justice Dawe to check the matter is ready for trial and to ascertain whether there is a possibility of it resolving without the necessity of it going to trial.

7. Pending the conclusion of this matter the children spend time with the father under the supervision of either the father’s parents or his sister at the following times:

   (a)       on Thursday from 2.00 pm to 5.00 pm;

   (b)       on Saturdays from 10.00 am to 2.00 pm;

8. The father to collect the children on Thursdays from their Child Care Centre and the mother to collect them from the paternal grandparents home at the conclusion of the time spent SAVE AND EXCEPT if the Child Care Centre is closed on the Thursday then the mother is to deliver the children to the father’s parents home at the commencement of the time spent.

9. On Saturdays the mother is to deliver and collect the children from the paternal grandparents’ home.

10. The injunctions contained in paragraphs 4, 5 and 6 of the orders of the 17 August 2009 are continued.

11. The order for time spent on Thursday 24 December 2009 be varied to provide for the father to spend time with the children from 4.00 pm to 7.00 pm.

12. It is further ordered that on Saturday 26 December 2009 the time spent to be from 10.00 am to 2.00 pm.

13. Leave is granted to the mother’s solicitors to issue subpoenas to O Children’s Service for the production of documents for the Worker M to attend to give evidence.

14. If the O Children’s Service Worker is not agreeable to providing an affidavit within the prescribed time the mother’s solicitors are directed to file and serve a written statement of evidence to be provided by the Worker in the time provided for the filing and serving of affidavits.

IT IS NOTED that publication of this judgment under the pseudonym Bartels & Scholz is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4998 of 2008

MR BARTELS

Applicant

And

MS SCHOLZ

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a matter which involves interim orders which need to be made in relation to two young children pending the conclusion of the matter.  V was born in March 2006 and E born in August 2007.  They are therefore still young children. 

2. The Court does not have the benefit at the moment of having the evidence asserted by each of the parties properly tested in order to come to conclusions in relation to the significant matters raised by the parties about the risk to the children in the care of one of the parties and the capacity and attitude of the parties about their roles as parents. 

3. The Court does have the benefit of the report of Dr B, the Family Consultant, which was prepared after an observed interaction with the parties and the children going back to June 2009.  Regrettably due to the workload the trial of this matter cannot now take place until April 2010.  In the meantime it is necessary to make orders in relation to the time that each party spend with the children pending that trial.

4. I am of course required to consider the factors of section 65DAA and the provisions of section 60CC to ensure that the orders which are made are in the best interests of the children.

5. I have received submissions from the parties and the Independent Children’s Lawyer’s counsel concerning the matters.  In view of those submissions and the evidence of Dr B, it is appropriate to continue the supervision of the time the father spends with the children until such time as the Court is able to have the evidence tested.  That could be described as erring on the side of caution to ensure that there is very limited risk of any difficulty occurring.  However, in view of the report of Dr B I also consider it is appropriate to increase slightly the time that the children spend with the father during the period of the adjournment. 

6. The mother seeks a change to the place of handover and asks that that be in the car park of the childcare centre.  Taking into account the submissions of the counsel for the Independent Children’s Lawyer I am not satisfied that it is in the best interests of the children to change the arrangements currently in place which provide for the father to collect the children on Thursdays from the childcare centre and at other times the handover is to take place at the paternal grandparents’ home.  In view of the young age of the children those arrangements would seem to be in the best interest of the children preventing any harm or inconvenience being caused to the young children if handover were to be delayed or for any reason at the car park. 

7. I have also considered the various submissions in relation to Christmas Eve and Christmas Day.  I accept the submission of the mother that to have handover occur on Christmas Eve, Christmas Day, and Boxing Day would be in my view not in the best interests of the children as being too disruptive. 

8. The father appears to place emphasis upon Christmas Eve which is often celebrated by some communities with greater emphasis than Christmas Day.  Bearing in mind the difficult relationship between the parties and the arrangements which would have to be put in place for the children, I propose to order that the father have some time in the afternoon/early evening on Christmas Eve and that otherwise his time be spent on Boxing Day rather than Christmas Day.  This is a compromise between what each of the parties are seeking but it is an arrangement which provides benefit for the children, mainly giving them some settled time to enjoy festivities rather than the disruption of many handovers in a period of two or three days. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  29 October 2009