Director General, Department of Family and Community Services and Santorno and Anor

[2015] FamCA 170

FAMILY COURT OF AUSTRALIA

DIRECTOR GENERAL, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & SANTORNO AND ANOR [2015] FamCA 170

FAMILY LAW – PRACTICE & PROCEDURE – Adjournment – where father seeks an adjournment due to unfitness to attend Court and provide instructions – where the father lives a considerable distance from the Court – where the father went to hospital – where the doctor said the father was unfit for Court – where audio visual link is available - best interests of the children – application for adjournment dismissed.

Family Law Rules 2004 (Cth)

Aon Risk Services Australia Ltd v Australian National University (2009) HCA 27

APPLICANT: Director General, Department of Family and Community Services

FIRST RESPONDENT: Ms Santorno

SECOND RESPONDENT: Mr Santorno

INDEPENDENT CHILDREN’S LAWYER: Anne Mowbray

FILE NUMBER: NCC 384 of 2009

DATE DELIVERED: 17 February 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Hannam J

HEARING DATE: 17 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson

SOLICITOR FOR THE APPLICANT: Crown Solicitors Office

FIRST RESPONDENT: LITIGANT IN PERSON Ms Santorno

COUNSEL FOR THE SECOND RESPONDENT: Mr Hill

SOLICITOR FOR THE SECOND RESPONDENT: Elizabeth Fleming & Associates Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Grew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Verekers Lawyers

Orders

1. The father’s application for an adjournment is refused.

IT IS NOTED that publication of this judgment by this Court under the pseudonym DFCS & Santorno and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975(Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCC 384 of 2009

Director General, Department of Family and Community Services

Applicant

And

Ms Santorno

First Respondent

And

Mr Santorno

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made by the father in these proceedings for an adjournment on the basis that he is medically unfit to participate in the proceedings.  Initially the application was made on the dual ground that it was unclear whether his grant of Legal Aid had been approved and also that he may be medically unfit. The application ultimately only proceeded on the basis of his medical unfitness as opposed to his Legal Aid issue as that was resolved and the grant of Legal Aid was made.

2. These are parenting proceedings in relation to two children which have been on foot for about 20 months. These proceedings result from a hearing where a final judgment was given in March 2011, about four years ago.  As a result of those final orders the children were placed under the sole parental responsibility of the Minister for Community Services, as he then was. This application brought by the Secretary of the Department of Family and Community Services only relates to the issue of the time that the children spend with their parents.

3. The father initially had indicated that he would seek an order that the children live with him and the mother seeks an order that the children live with her.  As I understand it, the father’s application in respect of himself now merely relates to the time that he spends with the children.

4. This is a matter where interim orders have been in place since November 2012 and pursuant to those interim orders the children have had various arrangements made for them including arrangements concerning their placement with carers and arrangements concerning the time that they spend with their parents.

5. It is common ground that the children are quite troubled.  The older child, B, suffers from an intellectual disability and the younger child, C, has been displaying some significant behavioural difficulties.

6. It is certainly the Secretary’s case, as I understand it, and very well may be the mother’s case, that the issue of where the children live and how much time they spend time with their parents is central to the difficulties that the children are having.  As I say, it is common ground that they are having difficulties.

7. It is certainly in the children’s best interests that these proceedings in relation to their care and their future are resolved as soon as practical.

8. In addition, the Family Law Rules 2004 (Cth) (“the Rules”) themselves reinforce that the main purpose of the Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the Court that is reasonable in the circumstances of the case.

9. The application is based upon the father attending at an unknown time at the Emergency Department of the D Town Hospital and complaining about chest tightness and pain in his leg, which would appear may be indicative of a chest infection and cellulitis.  The doctor who prepared the medical certificate in which he expressed the opinion that the father will be unfit for Court for a week commencing today was available for cross-examination. The doctor said that his opinion was formed to a very large extent by information provided to him by the patient, that is, the father. The doctor did not detect any signs of a chest infection and was of the view that the father may currently be suffering from mild cellulitis.  The doctor explained that there were particular difficulties in examining the patient based upon his morbid obesity and for that reason he relied to a great extent upon what the patient told him.

10. The treatment that was prescribed by the doctor was oral antibiotics and the patient was not required to be admitted to hospital.  The doctor’s opinion that the father was unfit for Court for a week was based to a large extent on his understanding that the father would need to travel to Sydney to participate in the proceedings in person and on the information that the father gave him that he felt short of breath and had a pain in his leg.  The doctor explained that the father’s comorbidities are such that whilst the examination today did not disclose anything of particular concern, it may be the case that without treatment the father’s condition could deteriorate. However, treatment was initiated and, as I have indicated, this consisted of oral antibiotics.

11. At the time of signing the medical certificate, the doctor was unaware that the father may be able to attend Court and participate in the proceedings by electronic means, that is, through an Audio Visual Link. When it was suggested to him that if those arrangements could be made was he was still of the opinion that the father was unfit for Court, he said he was not of that opinion in those circumstances.  He also confirmed in his opinion, that the father would be fit to give instructions to his legal representatives and that when he was examined today he was sitting comfortably in bed, speaking clearly and was able to answer questions asked of him in a cogent fashion.

12. In these circumstances, it appears to me that so long as appropriate arrangements can be made for the Audio Visual Link that the father is fit to attend Court and participate in these proceedings.  The representative for the Secretary of the Department of Family and Community Services indicated that that Department was willing to make its facilities available to the father both for the purposes of speaking to his lawyer so that he could give instruction and for participating in the proceedings.

13. I understand that whilst it might be slightly complicated it is likely that those arrangements can be made so that he would be able to participate via Audio Video Link from tomorrow.

14. There is also a suggestion that because of the late grant of Legal Aid and possible limited capacity that the father has had up until now to give instructions, that he may need to either seek leave to file an updated affidavit because he has not filed an affidavit for a couple of years in the proceedings or that he may be required to seek leave to give some short oral evidence.  Having understood the father’s position I have indicated that I will grant leave for him to give oral evidence.

15. To the extent to which this application was ultimately based on the father’s unfitness report as indicated, I find that he is fit for Court having heard the evidence of the doctor.

16. Having regard to the matters set out in the Rules and the matters referred to in the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University[1], I am of the view that the Court must have regard to what is reasonable in the circumstances of the case, the issues of competing considerations such as public expense and the position of the other litigants must be taken into account.  This is a matter in which the father has been aware for many months of the dates which have been set aside and also must be aware through his participation in past proceedings of the difficulties associated with obtaining hearing dates.  All of the witnesses are present and some have travelled considerable distance.  Although the mother does not oppose the father’s application, she has taken time off work for the week to participate in the proceedings and as I understand it so has her partner who is also a witness. Dr E a busy expert witness is on standby and ready to give evidence.

    [1] (2009) HCA 27, 56.

17. I note that the father must have presented himself to hospital this morning at a time when it would have been reasonable that he should have commenced his journey to Sydney. In the circumstances it probably would have been reasonable that should have commenced that journey yesterday, during the day.  Bearing in mind that he did not require admission and his condition is being treated by oral antibiotics that matter could have been dealt with by seeing a General Practitioner or even presenting himself in a Hospital in Sydney.  If it were the case that he received the same treatment in Sydney he would have been able to attend Court and participate in person.

18. In the circumstances where alternative arrangements for him to both instruct his solicitor and give evidence are able to be made, and having regard to all the matters referred to, the application for an adjournment is refused and the hearing will commence tomorrow with the necessary arrangements being made for the Audio Visual Link between the instructing solicitors from the Department and my Associate.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 17 February 2015.

Legal Associate:

Date:  17 March 2015.