Buzalek and Buzalek

[2010] FamCA 353

FAMILY COURT OF AUSTRALIA

BUZALEK & BUZALEK [2010] FamCA 353

FAMILY LAW – PROCEDURE – Interim orders

Family Law Act 1975 (Cth)

APPLICANT: Mr Buzalek

RESPONDENT: Ms Buzalek

INDEPENDENT CHILDREN’S LAWYER: Robert Winter

FILE NUMBER: ADC 173 of 2008

DATE DELIVERED: 18 January 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 18 January 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Horvat

SOLICITOR FOR THE APPLICANT: Denise M. Rieniets & Associates Pty Ltd

COUNSEL FOR THE RESPONDENT: Mrs Tinning

SOLICITOR FOR THE RESPONDENT: Norman Waterhouse Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Childs

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Robert Winter (LSC)

Orders

1. That forthwith the affidavit of the wife filed on 16 December 2009 annexing documents obtained from the Children’s Youth and Women’s Health Service be uplifted and returned to the wife’s solicitor.

2. That forthwith the affidavit of the wife’s sister filed on 16 December 2009 be uplifted and returned to the wife’s solicitor.

3. That the wife have leave to file and serve a substituted affidavit of evidence in chief of her sister together with an updated affidavit of her evidence in chief, such affidavits to be filed and served by 4:00pm on 1 March 2010.

4. That the husband file and serve the affidavit of evidence in chief of his father and an updated affidavit of evidence in chief of himself and his mother such affidavits to be filed and served by 4:00pm on 1 March 2010.

5. That further consideration of this case be adjourned to a date and time to be advised.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 173 of 2008

MR BUZALEK

Applicant

And

MS BUZALEK

Respondent

EX TEMPORE REASONS

1. This matter is before me today on, in effect, a continuation hearing.  It was adjourned for a number of purposes including the filing of affidavits of evidence in chief by the mother and to await the outcome of certain notifications to Families SA involving allegations against the paternal grandfather. 

2. In relation to the affidavits of evidence in chief of the mother, her affidavit has been filed and she has filed affidavits of her two proposed witnesses, her sister and Mr LA.  There is a further affidavit of the wife filed on 16 December 2009 which annexes documents obtained via Freedom of Information.  However, Mrs Tinning has indicated that her client will not be relying upon that affidavit, and thus I propose to uplift it and return it to her.

3. I have raised concerns about the admissibility of the affidavit of the wife’s sister.  There are several options that can be followed in relation to that and the option that I propose to follow is to uplift the affidavit and allow time for a substitute affidavit to be filed minus the inadmissible material, bearing in mind that there will be some paragraphs which, prima facie, appear to be inadmissible but would not be if the information is being relied upon as original evidence, and not as the truth of the facts alleged. That is the case as put to me by Mrs Tinning, but there are unfortunately a number of other paragraphs which are inadmissible in any event, and I want to give the mother another opportunity to file an admissible affidavit by her sister.

4. With Mr LA’s affidavit, I have raised concerns about that from the point of view of the relevance of the information contained therein and there are some issues about admissibility, but not as significant as the affidavit of the wife’s sister.  I propose to leave the affidavit of Mr LA on file and any objections to it can be dealt with relatively quickly at the time that he is presented for cross examination. 

5. In the context of looking at those affidavits, I have explored with counsel the need for any further evidence not yet identified and that led to a consideration of a report of 15 January 2010 which has been received by this Court from Families SA. That is a report that I have now distributed to the parties and counsel including the Independent Children’s Lawyer.

6. It seems that there is an issue arising from that report which, at this stage, probably needs some further evidence and that is in relation to a home visit conducted at the mother’s home by Families SA on a date which is not identified in this report.  The mother’s counsel has indicated that her client takes issue with some of what is reported in this report as to what she allegedly said to the Families SA worker.  It is agreed that this report should be before me and it is also agreed that the Independent Children’s Lawyer will make available the worker who attended at the mother’s home for cross examination.  At this stage, we do not know who that is and we do not know whether that worker is available, but those inquiries will now need to be made by the Independent Children’s Lawyer.

7. At this stage then, that report should not be before me because that issue needs to be clarified and then depending upon whether that worker is available or not, we might have to revisit what happens to that report.  Thus it is simply a report received by this Court under the Magellan process at this stage. 

8. In terms of other reports, there has been useful discussion with counsel about that and it is agreed that the report by Families SA of 16 May 2008 can be before the Court by consent and there is no need for either the author of the report or any workers referred to in that report to be called for cross examination.

9. Separate to that, there is a report from Flinders Medical Centre of 16 November 2009 which is Annexure A to the affidavit of Mr Winter filed on 16 December 2009.  That is a report that can be before this Court by consent.  Mrs Tinning though has indicated that on her client’s instructions, and this does not create any issues or the need for cross examination, there are two quotations in this report which the mother says are inaccurate in the sense of the inclusion in the quotation of the word “grandad”, and that appears at the bottom of page 1 and the top of page 2.  There is no issue of identification in this case and Ms Horvat has indicated she does not take any issue about that and there is no need to call the author of the report to clarify whether the mother did or did not say “grandad”.  Thus that report is before the Court by consent

10. In this context, there is one further report that needs to be considered and that is a brief report dated 15 December 2009 from Ms D of Child Protection Services to the Independent Children’s Lawyer and it is Annexure F to the affidavit of Mr Winter filed on 30 December 2009. After considering that report, it is agreed that that report can be before the Court by consent without the need for any cross examination.

11. In the end result there is only the prospect of one more witness – subject to one other comment I make – and that is the worker who attended at the home of the mother and that will be followed up by the Independent Children’s Lawyer.  There is an issue though raised by Ms Horvat about the calling of the General Practitioner who reported the matter involving the grandfather to Families SA. The issue is what was said to that General Practitioner and Ms Horvat has flagged that if that cannot be sorted out, there may be a need to call that doctor.  It seems to me though – and I made these comments earlier – that there are avenues that can be looked at to clarify that issue without the need for that doctor to be called and Mrs Tinning has mentioned that there is something in the Families SA file – a written notification, for example, from this doctor – which might solve that issue. 

12. Next there is the position of the paternal grandfather.  The outcome of the notification is a recording by Families SA of abuse not confirmed.  Mrs Tinning though has rightly pointed out that that was more to do with the inability of Families SA to interview the children and, indeed, it is quite clear that there has not been a forensic investigation of those allegations.  To that end, that will still be an issue at trial in that although the grandfather is not a party and is not seeking any order about spending time with the children, the mother will be amending her application before the Court to seek an injunction restraining the father from permitting both children to be with the paternal grandfather.  That is an application that will be opposed by the father and there must therefore need to be evidence about that issue.

13. The mother has set out her evidence in relation to it in her affidavit recently filed.  The father has not done so yet because his affidavit was filed before this allegation was raised. There will also be a need for the grandfather to be called as a witness in the father’s case and thus he will need to file an affidavit.  Separate to that, this is a matter where the children are continuing to see their father, and the mother, in her most recent affidavit, has brought that up-to-date in terms of any issues that she has noticed.  The father needs the same opportunity and also the mother will need an ongoing opportunity to update her affidavit material.  Thus I need to make allowances for the updating of the affidavits in that regard.

14. Mr Childs has reminded me that there is a need for an updated report from Dr A.  I propose to deal with that by firstly ascertaining Dr A’s availability and timeframe for doing an updated report so that she has before her the most up-to-date information from the parties in terms of their affidavits, but also allowing time for that report to be available for the trial of this matter which is currently listed for April 2010.  Thus I do not propose to make any order about that today. 

15. As is apparent from that rundown of where this matter is, there are still issues outstanding, witnesses to be finalised, and affidavits to be prepared before the matter is finally ready for trial.  There is an added issue in that although this matter is currently in my docket, that will not continue for reasons which I do not need to be dwell upon. Thus I will not be the trial Judge in this matter but I am hopeful, as I have said, that it will still be possible for this matter to be heard in April.

I certify that the preceding 15 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 18 January 2010.

Associate