Anton and Malitsa (No. 4)

[2009] FamCA 330

FAMILY COURT OF AUSTRALIA

ANTON & MALITSA (NO. 4) [2009] FamCA 330

FAMILY LAW – PRACTICE AND PROCEDURE – Issue subpoena

Family Law Act 1975 (Cth)

APPLICANT: Mr Anton

RESPONDENT: Ms Malitsa

FILE NUMBER: DGF 928 of 2005

DATE DELIVERED: 27 April 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 27 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A.I. Strum

SOLICITOR FOR THE APPLICANT: Taussig Cherrie & Associates

COUNSEL FOR THE RESPONDENT: No appearance

Orders

1. That a subpoena issue returnable at 10.00am on 29 April 2009 addressed to Dr G of the M Hospital to give evidence and to produce the medical file of the wife at M Hospital as to:

   (a)    the treatment of the wife during the period from 10 April 2009 to 26 April 2009;

   (b)    the date of the wife’s discharge from the M Hospital;

   (c)    the capacity of the wife to continue to give evidence in the proceedings and if so when; and

   (d)    the capacity of the wife to participate as a litigant in the proceedings and if so when.

2. That the Registrar issue the subpoena forthwith.

3. That the subpoena be served by facsimile transmission to the said Dr G on 03 ….

4. That the requirement for the provision of conduct money under the Family Law Rules be waived.

5. That a copy of these orders be attached to the subpoena.

6. That the applicant’s costs of this day be reserved.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 928 of 2005

MR ANTON

Applicant

And

MS MALITSA

Respondent

REASONS FOR JUDGMENT

1. This is a matter which was part-heard and I was intending to resume today.  The wife has not appeared and I have had the assistance, which has been very helpful, from her daughter who has told me that her mother had been hospitalised.  The M Hospital had provided a faxed letter to the court dated 24 April 2009.  That letter was sent sometime after 5 pm on Friday evening.  It is signed by Dr G who gives himself the title of Registrar in Psychiatry, Mood Disorders Unit.

2. Because of the fact that that is the only evidence I have and, more importantly, it refers to the fact that it would be preferable for the matter to be deferred for 2-4 weeks and because the wife is an unrepresented litigant, I am not aware of what her current health status is, nor when and if the matter can proceed in the future.

3. It is important to understand that the wife is in the middle of giving evidence and being cross-examined.  Whilst, on any view, that will have to continue, there is also the difficult question of whether or not this medical problem impacts upon her capacity as a litigant to participate at all.  That, in turn, might give rise to the question of whether or not she needs a case guardian.

4. Through the good graces of her daughter, endeavours have been made this morning through M Hospital to get some indication from Dr G as to those answers, and in fact more importantly to give me some evidence which I was prepared to take by telephone. 

5. The message has come back from the hospital through a person engaged there indicating that Dr G has been advised by his supervisor not to give evidence because of some health problem himself.  The health problem has been specifically referred to as a blood pressure problem.  I am not entirely sure why that would preclude somebody from telling me the sorts of questions that I need answers to.

6. Accordingly I have no choice but to adjourn the proceedings today, and I am not satisfied as to when it can proceed.  On that basis I propose that the court will issue a subpoena addressed to Dr G.  The rules generally revolve around litigants themselves requesting subpoenas being issued, but this is a case which is rather unusual because I have the absence of a litigant in person.  On that basis if she had been here and told me that she was not capable of proceeding, I would have required her to provide some evidence.  If that evidence could be given but would not be given because of Dr G’s attitude, then I would have issued a subpoena at her request.  So, on that basis I am satisfied this is an appropriate matter to ascertain just exactly what the problem is.

I certify that the preceding Six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  4 May 2009