Kolbe and Schroeter - [2019] FamCA 208

FAMILY COURT OF AUSTRALIA

KOLBE & SCHROETER

[2019] FamCA 208

FAMILY LAW – CHILDREN – Interim application – Where the father seeks orders for the children to spend time with him in Country K in the forthcoming school holiday period – Where the children have previously spent time with the father overseas – Where the mother asserts that the father has an alcohol abuse problem which poses an unacceptable risk to the children while they are in his care – Where the evidence is insufficient to establish whether the father does or does not have an alcohol abuse problem – Where the Court takes a cautious approach – Orders made for the father to spend day time with the children in Australia – Orders made for the appointment of an Independent Children’s Lawyer – Orders made for the appointment of a Single Expert.

Family Law Act 1975 (Cth), ss. 4AB, 60CC, 61DA, 68L

Acton & Burton [2015] FamCA
Banks & Banks [2015] FamCAFC 36
Goode & Goode (2006) FLC 93-286
Iphostrou & Iphostrou and Ors [2011] FamCA 20
Marvel & Marvel (No. 2) [2010] FamCAFC 101
SS & AH [2010] FamCAFC 13

APPLICANT:

Mr Kolbe

RESPONDENT:

Ms Schroeter

FILE NUMBER:

SYC

1240

2019

DATE DELIVERED:

9 April 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

15 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lethbridge SC

SOLICITOR FOR THE APPLICANT:

Pearson Emerson Meyer Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Schonell SC

SOLICITOR FOR THE RESPONDENT:

The Norton Law Group

Orders

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

The parties are restrained from removing the children from the Commonwealth of Australia without the written consent of the other party or further order of the Court.
In the event of the father travelling to Australia, the children spend time with the father in Sydney during the period 12 April 2019 to 26 April 2019 between 9.00 am and 5.00 pm each day.
The father be restrained from consuming alcohol in the period 24 hours prior to and during any time he is to spend with the children, pursuant to these orders.

Appointment of Independent Children’s Lawyer

Pursuant to s 68L(2) of the Family Law Act 1975 (Cth) (“the Act”), an Independent Children’s Lawyer be appointed for the children, X, born … 2005, Y, born … 2007 and Z, born … 2009 (collectively “the children”), and the Legal Aid Commission of NSW is requested to provide such representation.
Forthwith upon notification of appointment, the Independent Children’s Lawyer file and serve a Notice of Address for Service.
Within 48 hours of notification of the Independent Children’s Lawyer’s address for service, the parties provide to the Legal Aid Commission of NSW all documents thus far filed in these proceedings by that party, together with all existing orders and copies of any relevant reports.

Appointment of Single Expert

Subject to order 8 below, a Single Expert be appointed pursuant to Chapter 15 of the Family Law Rules 2004 (Cth)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kolbe and Schroeter

Details

AGLC: Kolbe and Schroeter [2019] FamCA 208
Case: [2019] FamCA 208
Decision Date: 9 April 2019

CaseChat Overview and Summary

In proceedings before McClelland J, the court considered an application concerning the welfare of three children. The dispute involved the father's desire to spend time with the children and concerns raised by the mother, particularly regarding the father's alcohol consumption. The orders made by the court indicate a family law context, likely involving parental separation and child custody arrangements.

The primary legal issues before the court were the best interests of the children, specifically in relation to the father's contact with them, and the potential impact of the father's alcohol use on the children's welfare. The court was also required to determine appropriate interim measures to safeguard the children's interests pending further determination of the proceedings.

McClelland J applied principles relating to the best interests of the child as enshrined in the *Family Law Act 1975* (Cth). The court made interim orders restraining the removal of the children from Australia without consent, establishing a limited schedule for the children to spend time with the father, and prohibiting the father from consuming alcohol for a period before and during contact. Furthermore, the court appointed an Independent Children’s Lawyer pursuant to s 68L(2) of the Act to represent the children's interests and directed the appointment of a Single Expert to report on matters relevant to s 60CC of the Act, including the father's alcohol use. The parties were ordered to share the costs of the Single Expert.

Orders

Orders of the court

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

The parties are restrained from removing the children from the Commonwealth of Australia without the written consent of the other party or further order of the Court.

In the event of the father travelling to Australia, the children spend time with the father in Sydney during the period 12 April 2019 to 26 April 2019 between 9.00 am and 5.00 pm each day.

The father be restrained from consuming alcohol in the period 24 hours prior to and during any time he is to spend with the children, pursuant to these orders.

Appointment of Independent Children’s Lawyer

Pursuant to s 68L(2) of the Family Law Act 1975 (Cth) (“the Act”), an Independent Children’s Lawyer be appointed for the children, X, born … 2005, Y, born … 2007 and Z, born … 2009 (collectively “the children”), and the Legal Aid Commission of NSW is requested to provide such representation.

Forthwith upon notification of appointment, the Independent Children’s Lawyer file and serve a Notice of Address for Service.

Within 48 hours of notification of the Independent Children’s Lawyer’s address for service, the parties provide to the Legal Aid Commission of NSW all documents thus far filed in these proceedings by that party, together with all existing orders and copies of any relevant reports.

Appointment of Single Expert

Subject to order 8 below, a Single Expert be appointed pursuant to Chapter 15 of the Family Law Rules 2004 (Cth) to prepare a report on matters pertaining to s 60CC of the Act, including but not limited to the issue of the father’s alcohol use and any other matters that the Single Expert considers important to the best interests of the children.

The Single Expert appointed pursuant to order 7 above shall be an appropriately qualified person, as agreed by the parties, and in the absence of agreement, selected by the following process:

(a)Within seven (7) days of the date of these orders, the Applicant father is to provide a list of three (3) appropriately qualified persons for consideration by the Respondent mother; and

(b) Within seven (7) days of receipt of the list of appropriately qualified persons referred to in order (8)(a) above, the Respondent mother is to choose from that list the person to be appointed as the Single Expert.

The parties are to equally share the costs of the Single Expert Report.

10.

For the purpose of completing the Report, the Single Expert is granted leave to inspect the Court file and all documents produced pursuant to subpoenas (once leave to inspect has been granted to at least one other party in the matter).

11.

The parties comply with all reasonable directions as to attendance upon the Single Expert.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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