FAMILY COURT OF AUSTRALIA
Oliveri & Oliveri (No. 4) [2021] FamCA 260
File number(s): ADC 2966 of 2018 Judgment of: BERMAN J Date of judgment: 7 May 2021 Catchwords: FAMILY LAW – CHILDREN – With whom a child spends time with – Best interests of a child – Family violence – Where the father seeks an increase in the time he spends with the children – Where the father seeks his time be unsupervised – Where the mother opposes any increased or unsupervised time – Where the father currently spends limited supervised time with the children – Where allegations of family violence have previously been made – Where the father has been attending counselling - Where a meaningful relationship should be maintained.
FAMILY LAW – DISCOVERY – Privilege – Relevance - Where the wife makes reference to a 76 page document – Where the husband seeks that the document be produced – Where the wife claims legal professional privilege – Whether the document was created for the dominant purpose of litigation or legal advice – Where the document seems to have been prepared on the advice of a domestic violence worker or counsellor - Where it is likely the document was prepared to assist in criminal proceedings – Where the wife has not established the document was prepared for the dominant purpose of obtaining legal advice – Consideration of the relevance of the document.
Cases cited: AWB Ltdv Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234
Number of paragraphs: 47 Date of hearing: 27 April 2021 Place: Adelaide Counsel for the Applicant: Mr Richards Solicitor for the Applicant: Resolve Divorce Lawyers Counsel for the Respondents: Mr McGinn Solicitor for the Respondents: Clelands Lawyers Adelaide Pty Ltd ORDERS
ADC 2966 of 2018 BETWEEN: MS OLIVERI
ApplicantAND: MR OLIVERI
First Respondent
MS R OLIVERI
Second RespondentMR S OLIVERI
Third Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
7 MAY 2021
THE COURT ORDERS THAT:
1.Paragraph 1 of orders made 10 December 2020 be varied as follows:
(a)That X and Y both born … 2017 (“the children”) spend time with the husband as follows:
(i)from 10.00 am until 5.00 pm on Saturday commencing 11 July 2020 and each alternate Saturday thereafter; and
(ii)from 10.00 am until 5.00 pm on Sunday commencing 19 July 2020 and each alternate Sunday thereafter.
2.The wife do forthwith produce a copy of the 76 page document referred to in paragraph 7 of the wife’s affidavit filed 23 October 2020.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment…
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- Case
- [2021] FamCA 260
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were: (1) whether the father's time with the children should be increased and made unsupervised, having regard to the children's best interests, the history of family violence allegations, and the father's engagement in counselling; and (2) whether the wife had established legal professional privilege over a 76-page document, and if not, whether it was relevant and should be produced to the father.
On the parenting issue, the court noted that previous orders had reduced the father's time to reflect the mother's anxiety and concerns about the husband's conduct, as well as recommendations from a family consultant. While the father sought significantly more time, citing a desire to rebuild his relationship and bond with the children, the mother opposed this, pointing to unresolved issues and the children's anxious and aggressive conduct upon return. The court ultimately varied the existing orders to increase the father's time with the children to alternate Saturdays and Sundays from 10:00 am to 5:00 pm, commencing from July 2020. Regarding the discovery issue, the court found that the wife had not established that the 76-page document was created for the dominant purpose of obtaining legal advice, noting it appeared to have been prepared with the assistance of a domestic violence worker and likely to assist in criminal proceedings.
Consequently, the court ordered that the wife forthwith produce a copy of the 76-page document to the husband. The parenting orders were varied to increase the father's supervised time with the children to alternate Saturdays and Sundays from 10:00 am to 5:00 pm.
Orders
Orders of the court
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
7 MAY 2021
THE COURT ORDERS THAT:
1. Paragraph 1 of orders made 10 December 2020 be varied as follows:
(a) That X and Y both born … 2017 (“the children”) spend time with the husband as follows:
(i) from 10.00 am until 5.00 pm on Saturday commencing 11 July 2020 and each alternate Saturday thereafter; and
(ii) from 10.00 am until 5.00 pm on Sunday commencing 19 July 2020 and each alternate Sunday thereafter.
2. The wife do forthwith produce a copy of the 76 page document referred to in paragraph 7 of the wife’s affidavit filed 23 October 2020.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Oliveri & Oliveri has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
During the course of the argument the Court was advised that the criminal proceedings are to be heard and determined in 2021. Whilst not the subject of argument, the 76 page document has not been introduced into evidence and upon its production, would be subject to the implied undertaking that without leave of the Court it may not be able to be used in other proceedings.PARENTING CONSIDERATIONS On 10 December 2020 orders made on 8 July 2020 were varied as follows:(a)That the children spend time with the father as follows:(i)from 10.00 am until 3.00 pm on Saturday commencing 11 July 2020 and each alternate Saturday thereafter;(ii)from 10.00 am until 3.00 pm on Sunday commencing 19 July 2020 and each alternate Sunday thereafter. The orders made represented a reduction of the time that the children would spend with the father on alternating Saturdays and Sundays by two hours each day. The reduction in the father’s time brought to account the family report and the report of Mr H who had provided the father with counselling directed to the mother’s allegation that the father was the perpetrator of family violence. Ultimately, I considered that the time that the children spend with the father should be reduced to reflect the mother’s anxiety and her concerns as to the husband’s conduct and also the strong recommendation of the family consultant that the father may not be attuned to the children. The father seeks that the children spend time with him as follows:(a)Each alternate weekend from 5.00 pm Friday to 5.00 pm Sunday; and(b)From 3.00 pm to 7.00 pm each Wednesday. The father’s application is supported by his affidavit filed 6 April 2021. The basis for the husband’s application is the observation of the husband that there has been a concerning change in the children’s behaviour. Paragraph 10 of the husband’s affidavit sets out the basis of the father’s concerns. The issues range from the purported observation of the father that the children appeared scared and hesitant to engage in normal outdoor activities to a concern that in the wife’s home, he is being referred to as the “second daddy” and that he is no longer a part of the children’s family. It is a further concern of the husband that the nominated supervisors are expressing frustration as to the necessity for their involvement. The husband also observes that:I cannot spend enough time with each of the children so as to help develop, to teach them about life and my family, my work, my views on life. I am finding it difficult to bond with the children in a 5 hour period once a week. I cannot plan meals such as dinner with family and friends, play dates with cousins and family friends, reading to them at night, telling them bedtime stories, waking up with them and cooking breakfast with them. All of these things are missing from the children’s and my life. [2][2] Affidavit of the husband filed 6 April 2021, paragraph 14. The wife opposes the husband’s application for the children to spend extended time with him principally because of her observations that when the children return home they engage in anxious and aggressive conduct. The more significant issue raised by the wife’s counsel is that the issues that were of concern to the family consultant remain unresolved and given that the trial is listed for final hearing in September 2021 and should not be determined on an interim basis.