Boch and Ors and Louis (No. 2)

[2007] FamCA 1160

FAMILY COURT OF AUSTRALIA

BOCH AND ORS & LOUIS (NO. 2) [2007] FamCA 1160

FAMILY LAW – PROCEDURAL – EVIDENCE – applicant paternal grandmother wished to give evidence other than in person based on medical grounds – application and affidavit filed but no appearance on or on behalf of applicant paternal grandmother – respondent wife seeking to cross examine medical examiner of applicant paternal grandmother

Family Law Act 1975 (Cth)

APPLICANTS: Mr N Boch and Mr W Boch and
Ms J Boch

RESPONDENT: Ms Louis

FILE NUMBER: ADF 611 of 2005

DATE DELIVERED: 6 September 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 6 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANTS: In person

COUNSEL FOR THE RESPONDENT: Ms O’Connor

SOLICITOR FOR THE RESPONDENT: Mellor Olsson

Orders

1. That paragraph 3 of the Application in a Case filed by the father on 7 August 2007 insofar as it seeks orders in relation to Ms E Boch, Dr C W and Ms S W be dismissed.

2. That leave be granted for the evidence of Ms S W to be received by way of video link between the Darwin Registry and the Adelaide Registry of the Family Court on the basis that the father meets any costs associated therewith.

3. That further consideration of paragraph 3(d) of the Application in a Case filed by the father on 7 August 2007 and the Application in a Case filed by the paternal grandmother on 23 August 2007 be adjourned to 9:45am on 13 September 2007 before the Honourable Justice Burr with a time estimate of 1 hour.

4. That leave be granted to the wife to issue a subpoena to Dr T D seeking all medical records in relation to the applicant paternal grandmother Ms J Boch such subpoena to be returnable before the Honourable Justice Burr at 9:45am on 13 September 2007.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 611 of 2005

MR N BOCH and MR W BOCH and MS J BOCH

Applicants

And

MS LOUIS

Respondent

EX TEMPORE REASONS

1. This matter comes before me again, having been adjourned from 8 August 2007.  I made a number of orders on that day, the majority of which were designed to further prepare this matter for trial.  I have confirmed with the father that most, if not all, of the matters that he was required to attend to have been attended to.  It seems the only outstanding issue from his point of view was the filing of his updated affidavit.  He says he has that ready to be filed and so I assume that can be done today or tomorrow or in the very near future.  I do not propose to make any order about that because I rely on the father filing that when it is ready.

2. I adjourned to today further consideration of paragraph 3 of the Application in a Case filed by the father on 7 August 2007.  I also indicated that if the applicant paternal grandmother wished to pursue giving her evidence in any other way than by way of personally attending at the hearing, she needed to make an application in her own right and I set a timeframe for that.

3. There is now an Application in a Case filed by the paternal grandmother on 23 August 2007 with a supporting affidavit.  There is an affidavit of the paternal grandfather in support of the application and also an affidavit of the father in support of the application.  There is then a further affidavit by the paternal grandmother filed on 3 September 2007.  I note that that affidavit has been filed out of time but I am not fussed about that; it is obviously the intervening weekend that caused the difficulty with that, and no point has been raised about that with me.

4. I do make the comment, though, that as far as I am concerned it was entirely unnecessary for any supporting affidavit to be filed by the paternal grandfather or the father.  To do so has just added to the cost of this case and the length of it.  The primary consideration in this matter, in terms of the application that is made is the medical evidence.  Neither the paternal grandfather nor the father are doctors, nor have any medical expertise whatsoever.  I repeat, as far as I am concerned it was entirely unnecessary for those supporting affidavits to be filed.

5. In any event, I have raised with the paternal grandfather whether there is in fact a need still for the paternal grandmother to be an applicant in this case and also whether she needs to give evidence or not, because, accepting just for the moment the medical evidence, that would resolve the problem.  However, that is a matter for the paternal grandfather to take back to the paternal grandmother, because she is not here and no arrangements were made for her to attend by way of telelink.  I will not take that issue any further; that is a matter for them.

6. Given then that that application is to proceed, as was foreshadowed on the last occasion, the wife's counsel wishes to cross examine the doctor as to the medical reasons expressed for the application.  Also, the wife seeks leave to issue a subpoena for the doctor to produce her notes in relation to this matter.

7. This matter is set for trial before Burr J in October.  It is logical - and the parties agree - that this application should go before his Honour.  The earliest date that his Honour is available to undertake this task is 13 September 2007 at 9:45am with a time estimate of one hour.  Everyone apparently is available for that time but we do not know the doctor's availability.  If the doctor is available then obviously the hearing can take place at that time.  If she is not, and there are good reasons why she is not, then Burr J can address a further date, fitting in with his diary and the availability of the doctor and obviously counsel.

8. I propose to adjourn that application to that date on that basis.  I also give leave to issue the subpoena to Dr T D seeking all medical records in relation to the applicant paternal grandmother.

9. The next issue that I adjourned to today was further consideration of paragraph 3 of the Application in a Case filed by the father.  What the father sought there was leave for four named witnesses to give their evidence by way of audio-link.  They were Ms S W, Ms E Boch, Dr C W and Mr A H. 

10. I am told today by the father that he is not pursuing the application in relation to Ms E Boch or Dr C W.  In relation to Mr A H, the father has not been able to tie him down as to where he might be or what his situation might be at the time, or as to whether he can attend or cannot attend, so at the moment it is premature to look at his position.  However, with Ms S W, the father does pursue his application in relation to her.

11. That application is opposed, and I have indicated that I am not prepared to grant it if what is sought is an audio-link.  However, I would be prepared to grant the application if the order sought was that her evidence be taken by way of video-link between the Darwin Registry of this court and the Adelaide Registry.

12. The father has indicated that he is not prepared to meet any costs associated with such an exercise, but I have indicated to him that from my knowledge of these matters, if there is cost it is minimal.  However, I cannot be more specific than that, and the father can make his inquiries of the staff of this Registry to ascertain what the cost might be.

13. What I propose to do is to give leave for the evidence to be taken by way of video-link, but of course if the father determines that whatever cost there is is something that he cannot meet then I will give him leave to bring the matter back before the court to further argue it if necessary. 

I certify that the preceding 13 numbered paragraphs are a true copy of the reasons herein of the Honourable Justice Strickland.

6 September 2007

Associate