Falcon and Falcon and Anor

[2009] FamCA 1214

FAMILY COURT OF AUSTRALIA

FALCON & FALCON AND ANOR [2009] FamCA 1214

FAMILY LAW – CHILDREN – Application by the respondent paternal grandmother to attend the final hearing by telephone – No evidence provided to support her application and her application is therefore dismissed
FAMILY LAW – EVIDENCE – Application by the Department of Human Services for a witness to give evidence by telephone – The witness is a psychologist who practices in Armidale and the final hearing will take place in Newcastle – Application granted

Family Law Act 1975 (Cth)

APPLICANT: Ms Falcon

1st RESPONDENT: Mr Falcon (deceased)

2nd RESPONDENT: Ms Halva

INTERVENER: Department of Human Services

INDEPENDENT CHILDREN’S LAWYER: Ms Callander

FILE NUMBER: NCC  3514 of 2007

DATE DELIVERED: 30 November 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 30 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Boyd

SOLICITOR FOR THE APPLICANT: A W Simpson & Co

COUNSEL FOR THE 1ST RESPONDENT: Not Applicable

SOLICITOR FOR THE 1ST RESPONDENT: Not Applicable

COUNSEL FOR THE 2ND RESPONDENT: Not Applicable

SOLICITOR FOR THE 2ND RESPONDENT: Ms Phillipos

COUNSEL FOR THE INTERVENER: Not Applicable

SOLICITOR FOR THE INTERVENER: Ms Sawyer

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Callander

Orders

BY CONSENT, IT IS ORDERED THAT

1. The application made by the Director General of the Department of Human Services for his witness Dr K to give evidence in these proceedings by telephone is granted.

IT IS FURTHER ORDERED

1. Leave is granted to the Director General of the Department of Human Services to elicit evidence in his case from the witness Mr H by way of telephone.

2. The application of the paternal grandmother to attend the hearing of these proceedings by telephone is dismissed.

3. Order 4 made by Justice Austin on 25 September 2009 is amended so as to permit the respondent paternal grandmother to file and serve her Amended Response by Tuesday, 1 December 2009.

4. Order 5 made by Justice Austin on 25 September 2009 is amended so as to permit the respondent paternal grandmother to file and serve the affidavit affirmed by her on 25 November 2009 by Tuesday, 1 December 2009.

5. Order 5 made by Justice Austin on 25 September 2009 is amended so as to permit the Intervener to file and serve the affidavit of Dr K affirmed on 24 November 2009 by Tuesday, 1 December 2009.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC  3514  of 2007

MS FALCON

Applicant

And

MR FALCON

1^st Respondent

And

MS HALVA

2^nd Respondent

And

DIRECTOR-GENERAL, DEPARTMENT OF HUMAN SERVICES

Intervener

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE

REASONS FOR JUDGMENT

Application by Paternal Grandmother

1. Pending before the Court is an application by the paternal grandmother to attend the hearing of these proceedings tomorrow, Tuesday 1 December 2009, by way of telephone.  The application is refused and the reasons for that are as follows.

2. The matter is listed for final hearing before the Court on 1 December 2009 and has been so listed for many months.  In the last couple of days an application has been made by the paternal grandmother to appear at those proceedings by way of telephone, ostensibly on the basis that she does not feel emotionally capable of dealing with the process of litigation.

3. No evidence has been adduced to support the sentiment expressed by the paternal grandmother in that regard.  The learned solicitor who appears for the paternal grandmother concedes that she has had a conversation with the treating medical practitioner for the maternal grandmother.  The learned solicitor was informed by the treating doctor of the paternal grandmother that she is physically fit to attend Court.  Moreover, the solicitor has informed the Court that she is prepared to assist the paternal grandmother’s return travel to the Court by driving her to and from the proceedings.

4. As I have said, the only basis upon which it is advanced that the paternal grandmother is unable to attend the Court is that she is feeling emotionally overborne by the litigation.  There is no independent medical, or other, evidence to support such a position.

5. The solicitor for the paternal grandmother has asserted that it might be possible for her and her Counsel to conduct the proceedings for the paternal grandmother without her personal appearance at Court, but frankly I am unable to understand how that can practicably occur.  The paternal grandmother is a party to the proceedings.  That is even more significant now that she is the only respondent to the proceedings, because the biological father of the children has recently deceased.

6. The application was opposed by the applicant mother and the Independent Children’s Lawyer, and although the application was not formally opposed by the Department of Human Services, the solicitor appearing for the Department has indicated a clear preference for the attendance of the paternal grandmother.

7. The fact of the matter is that this case is over-listed before me tomorrow.  In view of a case with priority already having started, it may be that this case will not even be commenced.  Moreover, learned Counsel for the applicant mother has foreshadowed a possible need for the adjournment of the proceedings.  That adjournment may have been necessitated by the recent changed position adopted in these proceedings by the paternal grandmother.  The solicitor for the paternal grandmother informs the Court that she is no longer seeking orders to the effect that the children live with her. She has resiled from that position and will now advance a case for orders that the children spend time with her.

8. Clearly enough, the recency of the paternal grandmother’s changed position may influence the potential for a negotiated settlement.  Such a potential can only be facilitated by the personal presence of the paternal grandmother.

9. For those reasons I dismiss the application of the paternal grandmother to attend Court by telephone.

Application by Intervener

1. The Director General is now a party to these proceedings.  Within the last few days, the Director General has filed with the Court an application that a witness intended to be called by the Director General give evidence by telephone.  The witness in issue is Mr H, a Psychologist.  The reasons given by the Director General for the need for that witness to give evidence by way of telephone rather than in person are twofold.

2. Firstly, the Director General contends that the witness has a busy counselling practice in Armidale and that he is scheduled to provide counselling services throughout the week in which the hearing is listed and cannot be away from his practice for an entire day, or for multiple days.

3. Secondly, the Director General points to the geographical distance between Armidale and Newcastle, the significance being that Mr H’s practice is in Armidale and these proceedings will be heard before the Family Court sitting at Newcastle. The Director General says that if the witness was obliged to attend Court in person to give evidence it would necessarily mean that the witness would be away from his practice for at least a full day.

4. The only party to oppose the application is the applicant mother.  The only basis upon which the applicant mother opposes the application is that learned counsel who appears today for the applicant mother has not received instructions from his instructing attorney as to whether he ought consent or object to the application.  For the sake of abundant caution, in the absence of specific instructions to offer his consent, learned counsel formally opposes the application.

5. I am satisfied on the basis of the material put before the Court that it is appropriate that the witness Mr H be granted permission to give his evidence by way of telephone.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin

Associate: 

Date:  30 November 2009