KOLSTEN & HADORN

[2019] FCCA 3513

FEDERAL CIRCUIT COURT OF AUSTRALIA

KOLSTEN & HADORN [2019] FCCA 3513

Catchwords:
FAMILY LAW – Parenting – where trial lengthy due to number of witnesses to be called – transfer to the Family Court.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR KOLSTEN

Respondent: MS HADORN

File Number: DNC 455 of 2018

Judgment of: Judge Young

Hearing date: 19 November 2019

Date of Last Submission: 19 November 2019

Delivered at: Darwin

Delivered on: 19 November 2019

REPRESENTATION

Counsel for the Applicant: Mr Maley

Solicitors for the Applicant: Maley Barristers & Solicitors

Counsel for the Respondent: Ms Franz

Solicitors for the Respondent: Darwin Family Law

UPON NOTING

That the parties indicated that 9 – 10 witnesses may be called and the Court is satisfied the matter is likely to take more than 4 days.

THE COURT ORDERS

1. That leave is granted to the parties to inspect only and the parties’ legal representatives (and to include the Independent Children’s Lawyer (if appointed), any family consultant and family report writer) to inspect and copy the material produced by New South Wales, Queensland and Northern Territory Police, Town B and C Medical Practice pursuant to the subpoenas filed on 7 November 2019 (SAVE AND EXCEPT for those marked confidential). Information cannot be disclosed to persons not a party to these proceedings, save and except for expert witnesses NOTING leave is granted on the condition that all copies are destroyed at the conclusion of the matter and that the legal representatives keep the copies in their possession until that time.

2. That the matter be transferred to the Family Court of Australia, Darwin and listed on 23 January 2020 at 9.00am for directions before Registrar Brown.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 455 of 2018

MR KOLSTEN

Applicant

And

MS HADORN

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting matter involving X who is three years old. X has not spent any time with his father at all in his life as far as I can see from reading the material. That is an agreed position. His father has had nothing to do with him but now, or at least since the end of last year, he is seeking orders that the child spend time with him.

3. The issues from reading the materials appear to be these. The mother makes serious allegations of family violence against the father and alcohol and other substance abuse claims. The father denies those allegations of family violence but the allegations are certainly there and in this case they will need to be explored and findings made. 

4. The mother re-partnered when X was about five months old and X considers the mother’s current partner, it would appear on all the material, to be his father, certainly socially. He is probably too young to be introduced to the concept that this case has revealed, that is, a divergence between social fatherhood and biological fatherhood. It was not until the results of DNA testing carried out earlier this year that the mother has accepted that the applicant is the biological father of the child.

5. To add to the complexity, the father suffers from an acquired brain injury, apparently suffered in a fall from a balcony. The materials I have read have included reports from Dr A, a rehabilitation physician, who talks about the applicant’s acquired brain injury and his cognitive capacities. Apparently as of June 2019 he was still improving from the fall was last year. The reports from Dr A refer also to an occupational therapist who has been helping the applicant father and there is also reference to the applicant’s depressed mood at various times and the use of antidepressants.

6. There is a letter from the applicant’s general practitioner which also refers to the applicant’s depression and treatment with antidepressants which are said to be not helping him and he has gone off them.

7. I asked counsel for the mother what she considered to be the issues. The position taken by the mother which is essentially that for the foreseeable future the child should not spend time with the father on the basis of (1) a history of family violence; (2) the effects of the applicant’s acquired brain injury; (3) his drug use and the reference at least to cannabis use earlier this year; (4) allegations of at least historical alcohol misuse; (5) mental health issues referred to somewhat slightly in the notes of the letters I have referred to and (6) the mother’s own reaction to the prospect of the child spending time with the father. She is apparently receiving treatment from a psychologist herself at the moment.

8. The position of the father is that those are not issues or certainly ought not to stand in the way of an order that the child spend some time with him.

9. When I asked the parties for their witness list or their assessment, the mother told me that she would be calling the mother and the mother’s current partner and the maternal grandmother, the latter in relation to historic family violence, and her own psychologist; that is, three lay witnesses and one expert.

10. The father’s counsel told me he would be calling three lay witnesses:  the father, the father’s partner and the paternal grandmother. He mentioned the possibility of six other family members but I think that was an off the cuff remark and I do not give it much weight. In addition there is the possibility and indeed I would say the necessity of the father calling expert witnesses, in particular, about the extent of his brain injury that may involve a neurologist. It may be that a rehabilitation physician can give evidence about that. Certainly medical evidence will be required. 

11. There was some reference to his treatment for depression and I would expect at least a general practitioner to give evidence about that and possibly a psychologist or anyone else that the father has been seeing.  So on the father’s side there are three lay witnesses and at least two expert witnesses.

12. This would be a case for a preparation of a family report, so there would be a family consultant. On my reading there would be a minimum of 10 witnesses, three of whom, four if the family consultant is included, would be expert witnesses and the others lay witnesses.

13. I consider that the matter is likely to require more than four days of hearing. According to the protocol between this court and the Family Court it is a matter suitable for transfer to the Family Court and that is what I propose to do.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Young

Date:  4 November 2019