Buzalek and Buzalek

[2009] FamCA 1297

FAMILY COURT OF AUSTRALIA

BUZALEK & BUZALEK [2009] FamCA 1297

FAMILY LAW – PRACTICE AND PROCEDURE – Magellan matter – preparation for trial – leave granted to issue subpoenas

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: 7 September 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 7 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Fuda-Duncliffe

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

COUNSEL FOR THE RESPONDENT: Ms Parker

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 pursuant to s 69ZT(3) of the Family Law Act all of the provisions of the Evidence Act referred to in s 69ZT(1) are to apply in this case.

2. That by 4:00pm on 16 November 2009 the husband file and serve his affidavit of evidence in chief and the affidavit of evidence in chief of the paternal grandmother.

3. That by 4:00pm on 16 November 2009 the wife file and serve her affidavit of evidence in chief, the affidavit of evidence in chief of LA and the affidavit of evidence in chief of her sister.

4. That leave be granted to the husband to issue a subpoena to the Neo Natal Unit of the Flinders Medical Centre for production of all notes and medical reports regarding the child N born … June 2006, such subpoena to be returnable before a Registrar at 9:30am on 7 October 2009.

5. That leave be granted to the wife to issue a subpoena to the Child and Youth Health Service for production of all files and notes in relation to the child N born … June 2006, such subpoena to be returnable before a Registrar at 9:30am on 7 October 2009.

6. That BY CONSENT UNTIL FURTHER ORDER the children M born … September 2005 and N born … June 2006 spend time with the husband from 10:00am to 4:30pm each Saturday upon the same conditions as are set out in paragraph 6 of the order made by Burr J on 9 July 2009 SAVE AND EXCEPT that sub-paragraph (d) be varied to provide as follows, “that all time spent by the husband with the said children be supervised by either both of the paternal grandparents [Mr and Mrs Buzalek Snr] or the paternal grandmother Mrs [Buzalek Snr] and SAVE AND EXCEPT that sub-paragraph (f)(i) also be varied to provide that, “either both of the paternal grandparents [Mr and Mrs Buzalek Snr] or the paternal grandmother Mrs [Buzalek Snr] conduct the handover”.

7. That further consideration of this case be adjourned to 9:00am on 23 November 2009 with a time estimate of one hour.

8. That pursuant to s 62B and s 65DA(2) of the Family Law Act the particulars of the obligations these orders create and 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 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 is a matter which is in the Magellan Project. It is a matter that is within Division 12A of the Family Law Act1975 (Cth), and as is the practice in this court with Magellan matters today I have addressed the preparation of this matter for trial. I have not taken any evidence from the parties and the family consultant has not been present.

2. The parties have filed their respective parenting questionnaires and they were helpful.  Equally, the parties have each filed case information which was also very helpful and has allowed the matter to proceed today.

3. The matter is proceeding.  It is a hearing which is unfortunately going to take some time – at least two weeks on the estimation of counsel – because of the number of witnesses and the number of issues that need to be dealt with.  Given that, I am not in a position to provide a listing for trial today but I have indicated to counsel that the matter will not be listed this year.  As to when it can be listed, that is going to depend upon how long the case will take precisely and that hopefully can be better determined once the affidavits of the parties have been filed and further information obtained, and I will come back to that in a moment.  Just to give the parties though some indication of when it could be heard, I have indicated that February 2010 is a possible month when this matter can be listed.  I will address that again at the continuation hearing which I will fix in a moment.

4. Looking then at the matters that have been discussed today, in terms of the orders sought by the respective parties, they are set out in their outlines and I am happy to proceed without formal amendment of the applications and responses, and counsel are as well.  In terms of witnesses, just addressing the witnesses to be called by the father, who is dux litis in this case, obviously, he will give evidence.  He will also be calling Dr B, a psychiatrist, who has provided two reports in this matter, the most recent being 24 August 2009.  In addition, he will be calling his mother, the paternal grandmother.

5. The father’s counsel has sought leave to issue a subpoena to the Neonatal Unit at Flinders Medical Centre.  It may be that the provision of records from that Centre leads to a request by the husband to call further witnesses, but that remains to be seen. 

6. It seems there is also an ongoing investigation by Families SA arising from a notification raised in February 2009.  There is a letter of 29 June 2009 which was provided to Burr J on 6 July 2009 and which, in a nutshell, indicated that the investigation was on hold until psychiatric assessments which were going to be undertaken pursuant to orders of this court were available and had been provided to Families SA in order that they could continue their investigations.

7. No one has been able to tell me today whether this is still an ongoing investigation, but I have to assume that it is.  However, what is even more disappointing, in terms of what I have been told today, is that the psychiatric assessments have not been sent to Families SA despite that being the subject of orders made by Burr J on 6 July 2009.  Thus even if it is an ongoing investigation, it certainly has not been progressed for that reason yet, and I do not want to dwell on this, but with this unresolved issue in the background, I have still been asked today to list this matter for trial! 

8. It should be obvious that at the very least inquiries need to be made as to the status of this investigation, but in any event, the psychiatric assessments need to be provided to Families SA.  It seems to me that the appropriate party to pursue this with Families SA is the Independent Children’s Lawyer, and Mr Childs will convey that to Mr Winter and have that attended to urgently.  Unfortunately, in terms of witnesses, it may be that, depending on the result of that investigation, there are further witnesses that need to be considered in this case.  That concerns me as well, given the anticipated length of the case already.

9. Continuing with witnesses, there is the mother’s case.  She will obviously give evidence herself and she wants to call LA who apparently was present at the Premature Neonatal Unit at Flinders Medical Centre when the child N was born.  She also wants to call her sister, and Dr C, the psychiatrist who has made reports in relation to the father as well as the mother.  Next, she seeks to call one Ms R, who is a domestic violence counsellor.  There is a report on file from her of 19 March 2008 annexed to an affidavit of the wife’s solicitor filed on 25 March 2008.  I have expressed some concerns about the admissibility of that report and also its weight, however, Ms Parker wishes to pursue it and indeed, goes further and asks me for leave to file an updated report if there is one to be had.

10. I propose to give that leave, but as I said earlier, there will come a time when I will make an assessment as to whether all these witnesses will be permitted to be called and what reports will be permitted to be put before me.  In that regard, Ms Parker has also sought leave to issue a subpoena to Child and Family Services.  Apparently a nurse attended at the home of the parties not long after the birth of N and there may be something relevant in the notes that Child and Family Services have which bear upon this case.  As I have said, that is a pure fishing exercise as far as I am concerned, and normally a subpoena would not be able to be issued in such a circumstance, but I am going to give leave and take it step by step, as I will give leave, as I have said, to the husband to issue a subpoena to the Flinders Medical Centre, Neonatal Unit to see what comes of that:  prima facie, another fishing exercise. 

11. The witnesses that will be called by the Independent Children’s Lawyer are Ms BG, Coordinator of O Children’s Contact Centre, and Ms NR, Cooordinator of P Children’s Contact Centre.  There are reports from those centres on file which are relied upon.  Both parties require the authors of those reports to be called for cross‑examination and I will allow that at this stage.  If it turns out that it is a fruitless exercise, I will have something to say about the time that will be taken in the trial for that purpose.

12. Finally, at least in terms of what is known today, there is Dr A, who is the family consultant in this case.  She has provided two reports to this court and I will call her as a witness so that she can be cross‑examined by all three parties.  In that regard, Mr Childs has sought that Dr A do an updated report.  However, I propose to leave that until the continuation hearing, so that if it is necessary, it can be done closer to the time of the trial.

I certify that the preceding 12 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 7 September 2009.

Associate