Farquar and Farquar (No 4)

[2008] FamCA 1197

FAMILY COURT OF AUSTRALIA

FARQUAR & FARQUAR (NO. 4) [2008] FamCA 1197

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment

APPLICANT: Mr Farquar

RESPONDENT: Ms Farquar

INDEPENDENT CHILDREN’S LAWYER: Margaret Orwin

FILE NUMBER: DNC 431 of 2007

DATE DELIVERED: 4 September 2008

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Strickland J

HEARING DATE: 4 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Holtham

SOLICITOR FOR THE RESPONDENT: Withnalls

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms Orwin

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Margaret Orwin Barrister

ORDERS

1. That further consideration of this matter be adjourned to 10:00am on Tuesday 9 September 2008.

2. That the father provide to the court by 10:00am on 9 September 2008 a detailed medical report as to the recent events in relation to his health and the prognosis and his ability to attend court.

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

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: DNC 431 of 2007

MR FARQUAR

Applicant

And

MS FARQUAR

Respondent

EX TEMPORE REASONS

1. This matter was called on this morning, but unfortunately the father was not present.  His partner though was present and provided to the Court a medical certificate and also read out to the Court a document apparently written out by the father as to his current health.  I will not repeat all that was said this morning but the long and the short of it was that there was some confusion about it because what was written out by the father did not accord with what was on the medical certificate i.e. the medical certificate just indicated there was a problem with neck pain.  What was read out to the court though referred to a spider bite which then led to a reaction by the father and he collapsed or passed out and as a result of that, he has hurt his neck and back and he attended hospital yesterday.

2. I adjourned the matter to 2.15 today to see if we could get either the father here or on the telephone.  It has been impossible, he tells me, for him to come to Court, but he is on the telephone.  He tells me that what was read out in Court this morning is correct and he is as confused as anybody about the medical certificate that has been provided to us.  In any event, the father says he is unable to attend Court today.  He is in pain and he is not able to conduct this case even if we were able to do it over the telephone, and therefore it is a matter of what we now do.

3. There is only one option and that is to adjourn the matter to Tuesday.  Ms Holtham has opposed that adjournment.  Ms Orwin though does not and it falls to me to decide whether the matter should be adjourned or not.  In my view there is sufficient evidence before me for there to be an adjournment.  However, that is subject to the father providing on the adjourned hearing date a detailed medical report as to what has happened, his current condition, and what the future holds in relation to that.  The father tells me that he can obtain such a report.  What I say to him though is he has to obtain such a report and have it available on Tuesday morning. 

4. There may still be an element of doubt as to whether he can attend on Tuesday morning, but we will address that when and if we need to.  At this stage though, I do propose to adjourn the matter to Tuesday.  Prima facie, it would be impossible for the father to conduct this case over the telephone in his current state of health.  Therefore the matter simply has to be adjourned and Tuesday is the next available opportunity.

5. However, Ms Holtham has raised two issues.  One is whether it is possible to consider some of the preliminary matters in this case this afternoon, namely, objections to affidavits and secondly, Ms Holtham has alerted me to the fact that one of her witnesses has extreme difficulty in attending and giving evidence next week.  That is Mr M.  There was a suggestion that we might be able to have his evidence this afternoon but the father has said that is physically impossible from his point of view to conduct any cross-examination of the witness and I accept that again, prima facie, on what the father is telling us his condition is.  Thus unfortunately, that cannot occur.  Equally, I do not consider it is appropriate to launch into objections to affidavit material when frankly, although this morning both Ms Holtham and Ms Orwin again put to me that this case can proceed on an agreed basis, I still have serious doubts and reservations as to whether that can occur and I do not want to commence anything in this case until that issue is resolved.  One of the things that was intended to happen before the case started this morning was discussion between the parties as to an acceptable factual basis on which to proceed.  I am referring to the fact that these current proceedings arose out of a particular incident that occurred in July 2007 which has led to criminal proceedings.  That has been well documented.  I do not need to elaborate any further.  But to repeat, I still have serious doubts and reservations as to whether this case can proceed whilst the criminal proceedings have not been finalised.  Therefore I still want to sort that issue out before we take any steps in this case.

6. That said, I propose to adjourn the matter to Tuesday morning at 10:00am and we will see what happens at that time.  The father of course, if he is able to attend, will attend.  If he is not able to attend, then obviously at the very least, the father will need to be on the end of a telephone to tell us what is happening. 

I certify that the preceding 6 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 4 September 2008.

Associate