Cholich and Cholich

[2012] FamCA 623

FAMILY COURT OF AUSTRALIA

CHOLICH & CHOLICH [2012] FamCA 623

FAMILY LAW  – CHILDREN – interim orders – application by the father seeking orders to spend supervised time with the children – where the mother makes allegations of physical and sexual abuse against the father – where such allegations were the subject of criminal proceedings – where the children have not spent time with the father for an extended period of time – where the Court did not have the sufficient information before it to make a determination as to the best interests of the children – application dismissed and orders for the preparation of an updated Family Report.

Family Law Act 1975 (Cth)

APPLICANT: Mr Cholich

RESPONDENT: Ms Cholich

INDEPENDENT CHILDREN’S LAWYER: Mr Adey

FILE NUMBER: ADC 5009 of 2009

DATE DELIVERED: 25 July 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 25 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bowler

SOLICITOR FOR THE APPLICANT: Marciano Lawyers

COUNSEL FOR THE RESPONDENT: Ms Lewis

SOLICITOR FOR THE RESPONDENT: Christopher Ganzis & Co

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mrs Lindsay

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Adey Lawyers

Orders

UPON APPLICATION made to the Court AND UPON HEARING Mr Bowler of Counsel for the Applicant and Ms Lewis of Counsel for the Respondent and Mrs Lindsay of Counsel for the Independent Children’s Lawyer for the children M born … February 2004 and G born … October 2006

UPON NOTING the Court requests the Case Coordinator to make enquiries of Mr R (former Family Consultant) as to the cost and his availability to prepare an updated report (bearing in mind that at this stage the mother and children are in Western Australian and the father is in Adelaide).

IT IS ORDERED THAT

1. The father’s Application in a Case filed on 24 May 2012 is dismissed.

1. Upon the oral application of the Independent Children’s Lawyer it is directed that the drug testing issue be listed to the Callover for 1 August 2012 at 10.00 am before me so that full instructions can be obtained from the parties.

1. The matter is designated to form part of the Magellan Project.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cholich & Cholich has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 5009 of 2009

Mr Cholich

Applicant

And

Ms Cholich

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. In relation to the Application in a Case which is listed before me today, I note that the father is not proceeding with the application that the children be returned to Adelaide immediately, but he is proceeding to seek supervised time and a reunification.  That is based on the Affidavit of the father which was filed at the same time as the Application in a Case.  I also have before me the mother’s Response and the Affidavit of the mother filed on 23 July 2012.  All Counsel have referred me to the Report of Mr R of 9 July 2010.  I am not going to read out at length those significant parts of Mr R’s Report to which Counsel have referred me.  However, I have taken into account and have considered the matters in each of those paragraphs, particularly paragraphs 43, 44, 45 and 49 referred to by Counsel for the father.

2. I have also taken into account the matters in paragraph 65 and 70 and as the Independent Children’s Lawyer has pointed out, the significant paragraphs commencing under the heading ‘Evaluation’, and in particular paragraphs 60 and 61 together with 63.  I am not ignoring the other paragraphs in that Report and consider in particular all of the paragraphs under the heading ‘Evaluation’, are significant.

3. Paragraph 51 of Mr R’s Report states:

   What is significant is that it is a difficult matter for the court to determine in view of the serious allegations that are being raised and the factual matters that in dispute.

4. This is a matter which has been before the Court for some time, but the hearing of the matter before the Family Court has been significantly delayed by the criminal proceedings which have only recently been determined. 

5. The parties separated in December 2009.  The father has not spent time with the children and has had no communication with them since that time.  The criminal proceedings have been outstanding for many years.  As is set out in the father’s Affidavit, the matters in the criminal court in South Australia were only concluded very recently.  The matter now comes back with the father asking that the children undergo a process of reunification with him and spend time with him.

6. I am satisfied on the material before me that the Court is not yet able to determine the significant matters which relate to the best interests of the child which must be determined when making an interim order.  Those significant matters are part and parcel of what is in the best interests of the children by determining the issues concerning family violence, the significant allegations of family violence and sexual assault made by the mother which may impact upon the children physically, emotionally and psychologically.  Similarly, the father’s allegations are that the mother has falsely made up a series of allegations and that that allegation, if proven, would mean serious psychological and emotional abuse of the children.

7. The Court is not in a position to be able to determine the factual matters on the paperwork.  Indeed, there is a considerable amount of other information which will be required before the Court will be able to assess the matters and determine the significant facts.  I am, therefore, not in a position to make the orders sought by the father in the Application in a Case as to do so would put at risk the children’s emotional and psychological wellbeing.  A determination of the Court based upon the consideration of all the facts as to whether it would be emotionally suitable for the children to begin any form of reunification with the father who has been accused by the mother of such serious matters even though the criminal courts have determined through a jury to dismiss the criminal proceedings.

8. That does not necessarily set aside all of the allegations made by the mother when determining what is in the best interests of the children in this Court.  I have noted that the matter is one of the matters in a callover to begin before me on 1 August with a possibility that the matter will be listed for final determination in October.  If not in October, then the matter will presumably not be listed for final determination until listings are available before me or until arrangements are made for another judicial officer or other judicial officers to visit this registry with a view to determining the matters.  As I have indicated, I have requested that enquiries be made as to the availability of Mr R to update his Report.

9. In the meantime, Counsel have been told that the instructing solicitors have been made aware of the requirements for the attendance on 1 August with information about the issues that are yet to be determined and the witnesses who will deal with those issues in order to ensure that only those matters which are in dispute are matters which are before the Court for determination, so that the Court can accurately ascertain the length of time needed to determine the outstanding issues.

RECORDED:  NOT TRANSCRIBED

1. I propose to deem the matter to be a Magellan matter for the following purposes: mainly the prompt allocation of the trial time in this matter and the intricacies of the allegations in this matter which involve on both sides allegations of serious abuse whether it be violent abuse or emotional abuse.  There are allegations of serious abuse in relation to this matter.  A designation of the matter as a Magellan will overcome the risk of the parties being unrepresented at final hearing.  That factor is not usually the reason by which a matter would be designated Magellan, but I have so designated this matter as a Magellan matter for those various reasons.  The matter is adjourned to 1 August.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 25 July 2012.

Associate: 

Date:  3 August 2012