Theile & Reitz and Ors

[2008] FamCA 887

FAMILY COURT OF AUSTRALIA

THEILE & REITZ AND ORS [2008] FamCA 887

FAMILY LAW – CHILDREN – Intervenor grandparents application to spend time with child – infant child has disability and has lived with applicant grandparents since birth

Family Law Act 1975 (Cth)

APPLICANTS: Mr and Mrs Theile (Snr)

RESPONDENTS: Mr Reitz and Ms Theile

INTERVENORS: Mr and Mrs Reitz (Snr)

FILE NUMBER: ADC 295 of 2008

DATE DELIVERED: 6 August 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 6 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Mr B.W. McQuade

SOLICITOR FOR THE APPLICANTS: All Family Law

COUNSEL FOR THE RESPONDENTS: Ms Elmes

SOLICITOR FOR THE RESPONDENTS: Graeme Hemsley

COUNSEL FOR THE INTERVENORS: In person

INDEPENDENT CHILDREN’S COUNSEL: Mr D.J. Childs

INDEPENDENT CHILDREN’S SOLICITOR: Legal Services Commission

ORDER DURING THE PERIOD OF THE ADJOURNMENT

1. That the paternal grandparents Mr and Mrs Reitz be joined as third parties to these proceedings.

2. That the child … born … September 2007 spend time with the father and the paternal grandparents for one [1] hour from 1:30pm to 2:30pm each Saturday commencing on Saturday 9 August 2008.

3. That such time is to be taken at the home of the maternal grandparents and under their supervision.

4. That forthwith the maternal grandparents provide any authority which may be required by the Independent Children’s Lawyer to obtain expert reports in relation to the sate of health of the said child and his needs in relation to his ongoing care.

5. That the listing before a Registrar at 11:30am on 7 August 2008 be vacated.

6. That all applications and responses be adjourned to 9:15am on 1 October 2008 before a duty Judge.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 295 of 2008

MR AND MRS THEILE (SNR)

Applicants

And

MR REITZ AND MS THEILE

Respondents

And

MR AND MRS REITZ (SNR)

Intervenors

EX TEMPORE REASONS

1. This is a matter that has been transferred from the Federal Magistrates Court.  There are a number of parties, and there are a number of applications before me.  The issue is what time, if any, should be spent with the child by the father and the paternal grandparents.

2. This child suffers from serious disabilities.  There is subpoenaed material that has been placed before me from Families SA. But I have not read it because I cannot make head nor tail of it. 

3. What has to happen in this case is an appropriate report or reports be obtained from the health professionals who have the care of this child to enable this matter to move forward.

4. Why I say that is that it appears there is a dispute as to the level of care that is required and whether it is necessary for the child to remain in one household or whether his care can be split between caregivers.  Those are the issues which I need to know about before I can properly make orders going forward in this matter.

5. Today, for my part, has been to look at how we can start this process.  There is no opposition to the father and the paternal grandparents seeing the child, but what is put is that it should only be on a limited basis.  The need for that is disputed by the father and the paternal grandparents, but, unless and until I get some proper expert evidence before the court, I am not prepared to take any risks with the health of this child.

6. I am swayed in what I propose to do this morning by the position of the Independent Children's Lawyer, which is not to support entirely the proposal of the maternal grandparents, but pretty close to it.

7. The proposal that is on the table is that the father and the paternal grandparents spend time with the child at the home of the maternal grandparents for a limited period.  Their proposal was half an hour.  The Independent Children's Lawyer says an hour, and that is what it is going to be.

8. There was a dispute as to what day of the week that should happen.  In my view it should happen on a Saturday, and 1.30pm seems a convenient time. 

9. I note that there is an appointment to be fixed with a family consultant.  I hope that everyone approaches that with the interests of the child in mind, with a view to resolving the dispute and stopping these proceedings in their tracks rather than continue a conflict which cannot help anybody and particularly cannot help this very, very young child.  It is in the parties' hands though as to how they approach that and how this matter proceeds.

10. I propose to make an interim order along the lines that I have just indicated.  Separate to that, to repeat, what is needed is some independent expert evidence by way of reports as to this child's health and what is required in relation to his care.

11. The Independent Children's Lawyer will undertake the task of looking into who can provide such report or reports and then obtaining those reports.  The Independent Children's Lawyer will need the authority of at least the maternal grandmother, and I am told that that will be forthcoming.

I certify that the preceding 11 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 6 August 2008.

Associate