Boch & Louis

[2007] FamCA 861

FAMILY COURT OF AUSTRALIA

BOCH & LOUIS [2007] FamCA 861

FAMILY LAW – PROCEDURAL – Application by father to adjourn commencement of trial to seek orders to issue subpoenas – Father in person – Application granted
FAMILY LAW – PROCEDURAL – Application by father for applicant paternal grandmother to give her evidence by telephone due to illness – No evidence before the Court – Paternal grandmother to file an application and supportive documentation if she wishes Court to consider allowing her to give evidence by telephone

APPLICANTS: MR N BOCH
MR W BOCH
MS J BOCH

RESPONDENT: MS LOUIS

FILE NUMBER: ADF 611 of 2005

DATE DELIVERED: 8 August 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 8 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANTS: In person

COUNSEL FOR THE RESPONDENT: Ms O'Connor

SOLICITOR FOR THE RESPONDENT: Mellor Olsson

BY CONSENT IT IS ORDERED

1. That leave be granted to the father to issue witness subpoenas requiring the following persons to attend court and give evidence at the trial of these proceedings:

   (a)       Dr J O, Registered Psychologist and Family Assessor;
   (b)       Mr B N, Customer Services Officer;
   (c)       Mr C T, Automotive Engineer;
   (d)       Mr A H, Project Manager;
   (e)       Ms S W;
   (f)       Ms E Boch;
   (g)       Mr R A, Headmaster;
   (h)       Ms D C, Special Education Support Coordinator;

   (i)        Dr C W, ENT Surgeon.

2. That the requirement of Mr R A, Headmaster and Ms D C, Special Education Support Coordinator, to file Affidavits of Evidence in Chief do be dispensed with.

3. That leave be granted to the father to do the following:

   (a)File and serve an updating Affidavit of Evidence in Chief from the witness, Ms S W;

   (b)File and serve an Affidavit of Evidence in Chief from the witness Dr M S, ENT Surgeon;

   (c)File his own updating Affidavit of Evidence regarding events that have occurred in relation to the child …’s (“the child”) speech therapy matters, the help that the father has arranged for the said child at his school and the mother commencing to take the said child to private speech therapy sessions with Ms K B;

   (d)File and serve an updating Affidavit from the child’s private speech therapist, Ms K B.

4. That leave be granted to the father to view and copy all records produced under subpoena by the East District Office (Speech Pathology) and the Department of Education and Children’s Services in relation to speech therapy assessments and speech therapy provided to the child born … February 2001.

5. That the listing of this matter for trial not before 13 August 2007 be vacated.

6. That this matter be listed to commence as a trial before the Honourable Justice Burr at 10:00am on 8 October 2007 with a time estimate of 5 days.

7. That further consideration of paragraph 3 of the Application in a Case filed by the father on 7 August 2007 be adjourned to 9:15am on 6 September 2007.

AND IT IS FURTHER ORDERED

1. That paragraphs 4 and 7 of the Application in a Case filed by the father on 7 August 2007 be dismissed.

2. In the event that the applicant paternal grandmother wishes to pursue giving her evidence in any other way than by way of personally attending at the hearing she do make an application in that regard in her own right, such application and supporting affidavit to be filed and served by 4:00pm on Friday 31 August 2007.

3. That the question of the mother’s costs be reserved to the adjourned hearing.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Strickland delivered this day will for all publication and reporting purposes be referred to as Boch & Louis.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 611 of 2005

MR N BOCH

MR W BOCH
MS J BOCH

Applicants

And

MS LOUIS

Respondent

EX TEMPORE REASONS

1. I have before me an Application in a Case filed by the father on 7 August 2007.  The father seeks a number of orders, including leave to issue subpoenas, leave to file updated affidavits, and in some instances further affidavits, and leave for various witnesses to give evidence by way of audio-link.  The father has filed an affidavit in support of this application.

2. The problem with this application is that this matter is listed as a reserve case in the fortnight commencing next week, Monday 13 August 2007.  However the father says, quite forcefully, that all these matters need to be attended to, to ensure a fair hearing and to ensure that all relevant evidence is before this court to enable it to properly determine the applications in relation to the child the subject of these proceedings.

3. Unfortunately, as I explained to the father, for these orders to be made now would inevitably mean that the trial could not proceed next week, not only because many of these matters could not be attended to between now and next week but the mother has to have the opportunity to deal with any further affidavit material and the prospect of other witnesses and prepare her case accordingly.

4. In the end result then, the father makes an application to adjourn.  Fortunately, when that listing was provided, a back-up listing was given; namely, if it was not reached in the fortnight commencing 13 August 2007 the matter was to be given a primary listing in October.

5. In terms of the application, though, and the issue of an adjournment, Ms O'Connor who appears for the mother has agreed that the case would need to be adjourned if the orders were to be made.  The mother is quite prepared to consent to a number of these orders, but of course that does not overcome the difficulty of the lateness of this application and the lack of time to attend to these matters and then have them properly answered.

6. In the circumstances I propose to adjourn the hearing, and I have ascertained that there is a judge available for a five [5] day listing commencing 8 October 2007.

7. I have taken the father and Ms O'Connor through the father’s application and ascertained what orders can be made by consent and what orders cannot.  I have also taken the opportunity of taking the father and Ms O'Connor to the last orders made on 9 July 2007 by Dawe J and ascertained what the state of play is with those orders.

8. Looking then at the Application that I am dealing with this morning, I will make orders by consent in terms of paragraphs, 1, 2, 5 and 6.  In relation to paragraph 3, I propose to adjourn that matter for the purposes of further evidence being presented, if that is appropriate, but more so, given the change of trial dates, for the father to ascertain the availability of the witnesses referred to there to attend and give evidence in person at the trial. 

9. It will obviously be open for the father, if there is a witness that he wishes to give evidence by way of other means, to renew the application, but of course there needs to be evidence presented in support of each application as to why the particular witness cannot attend personally.  I have indicated to the father that, for my part, I will not be allowing any witness to give evidence via a telelink if the evidence of that witness is controversial and there is a need to cross‑examine that witness.  Thus the father will consider that and then see what that leaves in terms of any witnesses he wishes to still seek to be permitted to give evidence other than by appearing in person.

10. In relation to paragraph 4 of the application, I propose to dismiss that.  The fact of the matter is that the applicant paternal grandmother is a party and it is she who has to make her own application in relation to giving evidence.

11. I am not making any decision about the merits of the application but I do say that if the application is renewed by the applicant paternal grandmother it would need to be supported by sufficient evidence to allow that application to be properly considered.  The father is on notice that if all there is is a medical report from a General Practitioner then arrangements might need to be made for cross-examination of that practitioner before that matter is disposed of.

I certify that the preceding
11 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland.
The 8^th day of August 2007.

……………………………………….
Associate