Wittinger and Abelman

[2009] FamCA 835

FAMILY COURT OF AUSTRALIA

WITTINGER & ABELMAN [2009] FamCA 835

FAMILY LAW – CHILDREN – Interim

Family Law Act 1975 (Cth)

APPLICANT: Mr Wittinger

RESPONDENT: Ms Abelman

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 6998 of 2008

DATE DELIVERED: 5 August 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR LYNCH

SOLICITOR FOR THE APPLICANT: PETER LYNCH

COUNSEL FOR THE RESPONDENT: MR CANTWELL

SOLICITOR FOR THE RESPONDENT: HOGG & REID

COUNSEL FOR THE INDEPENDENT LAWYER: MS AGRESTA

SOLICITOR FOR THE INDEPENDENT LAWYER: GLEZER LANTERI & ASSOCIATES

Orders

1. That during the period that the father is overseas (between 9 August 2009 and 2 October 2009), he communicate with the child … born … August 2002 by Skype as follows:

   (a)on each alternate Wednesday between 8.00am and 8.30am, the first of such Wednesdays to be the first Wednesday after the father leaves Australia; and

   (b)on each Saturday between 8.00am (without time restriction) and the first of such Saturdays to be that after the father leaves Australia.

2. That all outstanding applications be adjourned for final hearing before me as the first case (as at this time) in the list of defended matters for the period of fifteen days commencing on 5 January 2010 at 10.00am as a three day matter.

3. That the matter be listed for mention before me at 9.00am on 21 December 2009 by telephone providing the practitioners provide to my Associate a direct line by which they can be contacted no later than the working day prior.

4. That unless otherwise impracticable, Registrar Kaur be appointed as the docketed registrar responsible for the management of the case.

5. That by 4 pm on 16 October 2009 the applicant file:

   (a)the affidavits of evidence in chief of all witnesses relied upon, such affidavits being confined to the issues in dispute as discussed this day; and

6. That by 4 pm on 30 October 2009 the respondent file:

   (a)the affidavits of evidence in chief of all witnesses relied upon, such affidavits being confined to the issues in dispute as discussed this day;

7. That by 4 pm on 5 November 2009 the Independent Children’s Lawyer file and serve upon all other parties, the affidavit material relied upon.

8. That all parties have leave to issue subpoenae for the production of documents such subpoenae to be arranged between the parties and the docketed registrar.

9. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

10. Should any party fail to comply with these orders or the ensuing amending directions of the registrar responsible for the file, that registrar shall:

    (a)If both parties are in default, be at liberty to move the case from the rolling list in its allocated place and either strike the case out of the list with a right of reinstatement upon conditions to be determined by the Registrar; or

    (b)refer the case to the trial judge for directions as to its future management; or

    (c)if the trial judge is unavailable, refer the case to the Case Management Judge for directions and determination; or

    (d)return the case to the Registrar’s docket on a date to be fixed for further management

    AND IT IS NOTED THAT all parties have been advised that a failure by one party to comply with these orders and those of the registrar responsible for the file may lead to the complying party seeking from the trial judge leave to proceed on an undefended basis.

11. That the practitioners for the parties file and serve electronically to my Associate by 4 pm on 21 December 2009 the following:

    (a)a concise set of orders to be sought if different from those already filed;

    (b)a list of the affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

    (c)    a list of assets and liabilities; and

    (d)a bullet-point summary of argument in relation to the issues in dispute.

12. That all parties attend upon a family consultant for the purposes of a comprehensive family report to address all issues relating to the welfare of the child but in particular the issue concerning the child’s capacity to spend block periods of time with her father and away from her mother, such report not be commenced before 30 October 2009 but to be released by no later than 11 December 2009.

13. That the family consultant be at liberty to read for the purposes of the report:

    (a)the affidavit material of all parties including their witnesses and in particular psychologist Ms M; and

    (b)the material produced pursuant to any subpoena.

14. That the family consultant not read the report of R.

15. That the issue of the objection by Ms S to the subpoena addressed to her be listed for determination on 25 August 2009 at 9.30am and the Independent Children’s Lawyer advise Ms S of that hearing date.

16. That until further order the child … born … August 2002 spend time with the father:

    (a)from 3.30pm Friday on 7 August 2009 to 12 noon on Saturday 8 August 2009;

    (b)commencing 2 October 2009:

    i.from 3.30pm to 7.00pm each Tuesday; and

    ii.from 10.30am on Saturday until 10.30am on the following Sunday every second weekend commencing 10 October 2009;

    (c)as from the first weekend of November 2009, the father spend time with the child every second weekend from after school on Friday until 10.30am on the following Sunday (in lieu of the time to spent under Order 16(b)(ii).

17. That the father spend time with the children on Christmas Day in 2009 from 4.30pm to 8.00pm.

18. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

AND THE COURT NOTES

A.That although this case has been allocated a number in the defended list referred to, all parties have been advised that that place may change as the list evolves and all parties are to monitor the progress of the list to be ready to start at any time during the defended period referred to in the order.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6998 of 2008

MR WITTINGER

Applicant

And

MS ABELMAN

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. In this matter, I am asked to make an interim ruling in relation to the question of some discrete periods of time between father and daughter, because the fledgling relationship is potentially at risk, having regard to the fact that the father is about to go overseas for almost two months.  It seems in this case, that the relationship has just started to really form to the extent that, for the last three visits, the child has stayed overnight without real problems.  There are some concerns about how long that will last. 

2. This is a final hearing in a few weeks’ time and it seems to me that whilst the father is overseas, the momentum ought to be continued.

3. The child should not be under any pressure when contacts occur through the Skype channelling system, and therefore the most suitable day where she and her father can be relaxed is the Saturday.  Beyond that, it is a question of what can be practically organised.  I would have thought a Wednesday morning every second Wednesday at eight o’clock in the morning – bearing in mind the restrictions of getting the child to school apply – I propose to make it every alternate Wednesday at 8 am for a period of a maximum of 30 minutes, and the first of those will be the Wednesday after the father leaves Australia.  Otherwise, it will be each Saturday morning whilst he is away at 8 am, without restriction as to time.

I certify that the preceding Three (3) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  10 August 2009