FAMILY COURT OF AUSTRALIA

BUZALEK & BUZALEK (No. 3)	[2009] FamCA 1337	

FAMILY LAW – CHILDREN – Allegations of sexual abuse by paternal grandfather – CPS intervention and report pending – Undertaking by grandfather not to have any contact with children pending report – Issue of who will supervise the children spending time with their father	

Family Law Act 1975 (Cth)	

APPLICANT:	Mr Buzalek	

RESPONDENT:	Ms Buzalek	

Independent children’s lawyer:	Robert Winter	

FILE NUMBER:	ADC	173		of	2008	

DATE DELIVERED:	23 November 2009	

PLACE DELIVERED:	Adelaide	

PLACE HEARD:	Adelaide	

JUDGMENT OF:	Strickland J	

HEARING DATE:	23 November 2009	

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Horvat	

SOLICITOR FOR THE APPLICANT:	Denise M. Rieniets & Associates Pty Ltd	

COUNSEL FOR THE RESPONDENT:	Mrs Tinning	

SOLICiTOR FOR THE RESPONDENT:	Norman Waterhouse Lawyers	

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER	Mr Childs	

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER	Robert Winter (LSC)	

UPON NOTING
That UNTIL FURTHER ORDER the paternal grandfather Mr Buzalek Snr has given an undertaking to not be present during any time spent by the children M born … September 2005 and N born … June 2006 with the father.

Orders
1.	Until further order that paragraph 6 of the order made on 7 September 2009 be varied to provide as follows –
a.	all time spent by the husband with the said children be supervised by the paternal grandmother and where the paternal grandmother is unable to supervise then by the father’s sister (the paternal aunt K); and
b.	the paternal grandmother or where the paternal grandmother is unable to the father’s sister the paternal aunt K conduct the handover.
2.	That the time for the wife to file and serve her affidavit of evidence in chief and the affidavits of evidence in chief of Mr LA, the mother’s ssiter, Ms R and the affidavit of evidence in chief of any further witness proposed to be called by the wife arising from the documents produced pursuant to the subpoena to Child and Family Services be extended to 4:00pm on 14 December 2009.
3.	That the time for the husband to file and serve the affidavits of evidence in chief of any witnesses proposed to be called by the husband arising from the documents produced pursuant to the subpoena to the Neonatal Unit at Flinders Medical Centre be extended to 4:00pm on 14 December 2009.
4.	That the Application in a Case filed by the wife on 18 November 2009 be dismissed and removed from the active pending cases list.
5.	That this case be adjourned part-heard to resume at 9:00am on 18 January 2010.

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

Family Court of Australia at Adelaide	

FILE NUMBER: ADC 173 of 2008

MR BUZALEK 	
Applicant

And

MS BUZALEK 	
Respondent

EX TEMPORE REASONS
1.	This matter was before me today on a continuation hearing, together with an application in a case, which was filed by the wife on 18 November 2009.
2.	I will deal with the application first.  It is an application seeking suspension of the current orders providing for the children to spend time with the husband and, in lieu, making an order for that time to be spent supervised at a children’s contact service.
3.	That application is opposed.  It is also opposed by the Independent Children’s Lawyer.  Briefly, the basis of that application is that there have been allegations made that the paternal grandfather has behaved inappropriately and, indeed, the allegations go as far as he having sexually abused the child N. Those allegations apparently arise out of comments made by N after returning home from a period of time with her father, that time being supervised by the paternal grandparents.
4.	I am told that CPS will be investigating those allegations, but I have nothing further before me about that.  There has been a medical report obtained which has been tendered to me today, and I am going to make that an exhibit in a moment.  That tells me a bit about the allegations and also obviously provides a medical assessment of the child.  
5.	There is still a paucity of information before me as to the precise disclosures of the child, given that the mother’s solicitor chose to advise her client to not reveal the detail of the allegations in the affidavit in support of the application.  That has left me in a difficult position, but this report which has been tendered today in a sense provides some information which convinces me that I need to make an order on an interim basis as a result of this issue.  There is still, obviously, more information to come.  CPS are about to investigate it and in due course that will occur and reports will be provided, and presumably the wife will be then filing affidavit material setting out in detail the disclosures made by the child N.
6.	The important issue for the case that is before me is that these allegations are not against the husband.  They are against the paternal grandfather, and there is no order that the husband or paternal grandfather seeks, for example, for the grandfather to spend time with the children either on an interim basis or on a final orders basis.  His role has been as a supervisor with his wife of the time that the children spend with their father.
7.	The response of the husband to this application is, as I say, to oppose it, but he does propose that the supervision be now undertaken primarily by the paternal grandmother with the assistance of the husband’s sister.  Thus the paternal grandfather will not be present during any time spent with the children.  His mother will continue her supervisory role and, in addition, his sister, the paternal aunt K, will assist the paternal grandmother in that supervision exercise in the sense that if the paternal grandmother is unavailable for some reason then the sister will step in.  The situation, as I understand it, that is being put to me is that the paternal grandmother will still be the primary supervisor and it is only when she cannot supervise that the sister will step in, but there is nothing to stop the sister being there as well to assist on any occasion when time is being spent.  
8.	The Independent Children’s Lawyer, as I say, opposes the application of the wife, and supports the continuation of the time spent under the current order, supervised solely by the paternal grandmother, but he has no instructions about the sister.  I have clarified with Mrs Tinning what her client’s instructions are and it is that if I do do what the husband seeks, then she would submit that the sister should be included as a supervisor in the way that I have outlined.  
9.	In my view the husband’s proposal is an eminently sensible one and should be put in place.  It safeguards the children, and particularly N, because the alleged perpetrator, the paternal grandfather, will not be present and to that end the paternal grandfather has today given an undertaking under oath to not be present during any time that the children spend with their father pending the completion of any investigations by CPS and/or the police. 
10.	Turning then to what was originally before me, it was, as I say, a continuation hearing in this matter and it was to look further at witnesses, ensure that appropriate affidavits had been filed and subpoenas issued and the like, and progress the matter in that way.  The husband has filed his affidavit of evidence in chief and his mother’s affidavit of evidence in chief and they were the only two witnesses that he was proposing to call.  The wife, though, has not filed anything, not her own affidavit, nor any affidavit of any witnesses that she proposes to call.  She says or her counsel says that that is because of these recent allegations and my retort to that is that it should not have been the way this matter had progressed.  
11.	My orders stand and in my view these allegations do not impact, at this stage, upon the orders that the husband seeks or this trial.  It may be that as a result of the CPS investigation and/or the police investigation that these allegations become highly relevant and necessary to be looked at in the context of this trial but at the moment my preliminary view is that they should not impact upon or delay the finalisation of the matter that is currently before me.  
12.	To repeat, I am concerned that the wife’s solicitor has chosen not to complete the affidavit material, but Mrs Tinning tells me that that can be done quite quickly and I will make an order about that in a moment.  There were also two subpoenas that I gave leave to issue on the last occasion.  They have been issued, however, for some reason which has not helped today, neither the counsel for the husband nor counsel for the wife have any instructions about the result of those subpoenas.  It was specifically intended that the subpoenas be issued and an assessment made by the respective legal representatives as to whether there were further witnesses that needed to be called.  
13.	With the Independent Children’s Lawyer, there are witnesses to be called by the Independent Children’s Lawyer but there is no affidavit that needs to be prepared.  There are reports on file from the proposed witnesses.  However, there was an issue which had not been attended to, pursuant to orders of this court, which the Independent Children’s Lawyer was to chase up in the adjourned period.  There is an investigation by Families SA arising from a notification in February 2009.  I will not repeat what I said on 7 September 2009 about that, but the long and the short of it is apparently that file has been closed on the basis of abuse not confirmed, but Mr Childs’ instructions are that in some way that file is now being re-opened. In any event I want to receive some formal notification via the Independent Children’s Lawyer as to the status of the investigation arising from that notification.  
14.	In terms of the listing of this matter for trial, unfortunately it is still a two week hearing and I simply do not have two weeks available this side of April 2010.  I propose to list it in the second half of April in either the two weeks the 12th and the 19th or the 19th and the 26th.  As to which of those two weeks are fixed, that will depend upon the availability of counsel, at this stage.  Mrs Tinning needs to sort that out and also the availability of witnesses.  I expect the solicitors to attend to that as soon as possible.  I had thought that I would get away with no further continuation hearing, but it seems that I will need to have such a hearing to consider the final list of witnesses, to consider what has happened with this foreshadowed CPS investigation, and to see how that impacts upon this trial and, if it does, how we cater for that.  
15.	Thus there are a number of issues which need to be canvassed and also, as I say and repeat, I am not satisfied of the need for all of the witnesses proposed by the wife and I need to have a compliance/directions hearing to make that assessment once those affidavits have been filed.

I certify that the preceding 15 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 23 November 2009.

Associate