Reichstein and Reichstein and Anor (No. 3)

[2012] FamCA 836

FAMILY COURT OF AUSTRALIA

REICHSTEIN & REICHSTEIN AND ANOR (NO. 3) [2012] FamCA 836

FAMILY LAW – CHILDREN – interim orders – with whom a child should live and spend time – where the child has been living with the father – where the parties have a difficult relationship – where the Court took into consideration the child’s wishes – best interests – orders that the child live with the father – further orders for the parties to attend therapy with a view to re-establishing the child’s time with the mother.

Family Law Act 1975 (Cth)

APPLICANT: Mr Reichstein

RESPONDENT: Ms Reichstein

INDEPENDENT CHILDREN’S LAWYER:	Legal Services Commission of South Australia
OTHER PARTY:	Crown Solicitors Office

FILE NUMBER: ADC 1379 of 2011

DATE DELIVERED: 20 September 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 20 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Hemsley

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Legal Services Commission of South Australia

COUNSEL FOR THE MINISTER OF

EDUCATION AND CHILD DEVELOPMENT:

Ms Aglieco

SOLICITOR FOR THE MINISTER OF

EDUCATION AND CHILD DEVELOPMENT:

Crown Solicitors Office

Orders

UPON NOTING:

(1)The Court notes the report from the Department of Families SA and they are not intervening in the proceedings.

(2)Leave the matter of the interim orders on the basis that I have made and the parties will be notified in due course what is the listing of the final orders application

IT IS ORDERED PENDING DETERMINATION OF THE FINAL ISSUES THAT

(1)The child V born … April 1998 live with the father UPON CONDITION that the father takes steps to monitor the child V’s internet and other relationships whereabouts safety and her emotional wellbeing and keep the mother informed in writing of any issues which develop in relation to the child V’s wellbeing.

(2)Both the mother and father confer with the Independent Children’s Lawyer at a time to be arranged with the Independent Children’s Lawyer to discuss arrangements which can be put in place for any necessary therapy for themselves and/or the child V to bring about a situation in which the child V in the immediate future can recommence spending time with the mother.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Reichstein & Reichstein (No. 3) 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 1379 of 2011

Mr Reichstein

Applicant

And

Ms Reichstein

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1.This decision relates to the application for interim orders concerning the child of the parties, V (“the child”).  Both parties appear unrepresented and have put their submissions to me from the bar table.  The Independent Children’s Lawyer is represented by Mr Hemsley who has also given me submissions.  The affidavit material has been considered, together with the report from the Department for Education and Child Development and the Family Consultant’s memorandum to the Court, which was prepared as a result of interviews with the parties and the child on 14 September 2012.

2.The child was born in April 1998 and is therefore over 14 years of age.  The affidavit material sets out evidence about an occasion that brought about serious concern for the children’s welfare and her association with another person. 

3.The previous orders which were in existence have not now been obeyed with, on the basis that the child is now residing with the father and has not spent time with the mother.

4.The father appears this morning seeking orders that there be an interim order that the child live with him and spend time with the mother in accordance with her wishes.  He also seeks orders for the delivery up of what he claims to be the child’s computer, accessories and DVDs.  The mother appears this morning and has expressed her desire to have the matter taken “out of the Court system”.  She opposes the order for the delivery up of the computer and other items, saying that the child does not want them and that they are, in any event, not the child’s.  That is disputed by the father.

5.The father has also, in response to the mother’s submissions that there be no change to the order, raised the issue of the government assistance which he will receive if a Court order is made.

6.The Independent Children’s Lawyer has only recently been appointed and has had a limited opportunity to be in a position to make submissions to the Court.  However the Independent Children’s Lawyer is of the view that the child the child should stay with the father.  It is clear from the Family Consultant’s report that the child has expressed strong views about her ongoing arrangements. 

7.What needs to be taken into account in this matter is the attitude of the parents.  It is clear from the history, the Family Consultant’s report, that the parents are unable to exercise their responsibility as parents to confer and exercise their responsibilities jointly.  The risk to the child at the present time in relation to her ongoing relationship with both of her parents is compounded by the parents’ inability to act in a civil responsible fashion towards each other and agree what is in the child’ best interests.

8.I am satisfied that it is in the best interests of the child that there be an order made on an interim basis that the child live with the father.  That represents what is happening.  It would be inappropriate to permit the previous order to remain in place when it is clear that the child currently resides in the father’s home.  It would also be appropriate if the father was able to encourage the child to spend time with the mother, and an arrangement be put in place as soon as possible.

9.It appears, however, that that may well be unlikely, even though he is seeking an order that the child spend time with the mother in accordance with her wishes.  There are no proposals as to when that would take place or how that would be arranged.

10.In this particular matter one of the significant issues is the relationship between the parties and the willingness of both parties to encourage a relationship between the child and the other party. 

11.It is also significant that the child is now over 14 and has expressed some strong wishes.  I accept that the mother had serious concerns about the child’s wellbeing, taking into account the material which has been annexed to the affidavits filed on behalf of the mother.  It would appear, however, that the father is able to take steps, and the child is well aware of the supervision which her father is currently providing.

12.The future directions section of the Family Consultant’s report says:

“It is the writer’s impression that [the child]’s presentation may have been weighted in favour of her goals and the father will do well to monitor her internet and other relationships where about safety and her emotional wellbeing.”

13.That is a requirement of any parent, particularly a parent with whom the child is residing. 

14.The writer of the report continues to say in paragraph 34:

“The writer would urge the parents to consider, however, that teenagers can face many deeply personal issues in this phase of life.  They require sensitive management, often inconsistent with a Court environment.  A mutually agreed family therapist who could consult with and work with both parents, not necessarily together, and relevant family members would be a better first step for any further issues.  Such work could also consider the position of a child triangulated in parental conflict or avoidance.  The writer could give several names of relevant practitioners, if required.”

15.And she further recommends:

“…that both parents maintain their expectation that [the child] reconnect with her mother and consult the same family therapist if [the child] and her mother have not resumed contact in a reasonable period of time.”

16.Taking into account the material that is currently before the Court, on an interim basis I therefore consider it in the child’s best interests that there be an interim order.

17.At the present time the Court is aware that this ongoing litigation would appear to be a matter which is likely to be not in the child’s best interests and the conclusion of the proceedings by way of agreement between the parties would be preferable.  I therefore leave the matter of the interim orders on the basis that I have made and the parties will be notified in due course what is the listing of the final orders application.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 20 September 2012.

Associate: 

Date:  2 October 2012