FONTAINE & FLECK (EX TEMPORE)

[2013] FamCA 1172

FAMILY COURT OF AUSTRALIA

FONTAINE & FLECK (EX TEMPORE) [2013] FamCA 1172

PROCEDURAL – Father seeks application for adjournment of hearing – Medical evidence – Court not satisfied father incapable of conducting proceedings based on medical evidence and history of proceedings – Application dismissed other than adjournment to following day to give father opportunity to appear and press his case

APPLICANT: Mr Fontaine

RESPONDENT: Ms Fleck

INDEPENDENT CHILDREN’S LAWYER: Ms Mahony

FILE NUMBER: PAC 4678 of 2007

DATE DELIVERED: 16 September 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 16 September 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented Litigant

SOLICITOR FOR THE RESPONDENT: Self-represented Litigant

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Cook

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Mahony of Mahony Family Lawyers

Orders

1. The hearing is adjourned until 10.00 am tomorrow.

2. The father’s application for an adjournment of the hearing is otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fontaine & Fleck 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 PARRAMATTA

FILE NUMBER: PAC 4678  of 2007

Mr Fontaine

Applicant

And

Ms Fleck

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This is an application for an adjournment of a matter that has been fixed for hearing for five days.  It relates to an Initiating Application, which was originally filed in August 2011, over two years ago, but was then discontinued.  However, in March 2012 the proceedings were revived and an amended application was filed by the mother in June 2012.  It is a matter that has been before the Court in some respects for over two years, but certainly in relation to this application, for over a year. 

2. In the circumstances of the case, it is a matter that needs to be resolved and it would be in the child’s best interests to be resolved.  There is significant acrimony between the parties.  It is a matter that had been fixed for hearing when the matter was in the Federal Magistrates Court, as it then was.  A doctor had provided a medical certificate for the father on that occasion detailing that he was unable to proceed with the hearing at that point in time.  The same doctor has provided a medical certificate that is relied upon by the father in this application for an adjournment.

3. So far as the father’s application today is concerned, in my view, there are some quite contradictory and inconsistent features about the application.  There was an attempt at having the matter adjourned by means of an exchange of emails between my Associate and the father commencing on last Tuesday 10 September 2013, which at that time was supported by a medical certificate from Dr B, who simply said:

   [Mr Fontaine] is attending our practice.

   He is currently not able to attend court due to mental and physical conditions.

   We would appreciate if you can delay the hearing for the time being.

4. The medical certificate did not set out the mental and physical conditions, which is not necessarily a problem, particularly when a doctor is prepared to make him or herself available for cross-examination to explore the issue of how long the patient is currently not able to attend Court so that the meaning of the word “currently” is able to be determined.  In these circumstances, even though the Applicant father had been informed by email by my Associate that he needed to make an application properly before the Court, supported by an affidavit and put the material upon which he relies before the Court, he chose not to do that and instead sent his wife along with some documents, which did not really take the matter much further, and I will turn to this shortly.

5. The Court arranged, because Mr Cook for the Independent Children’s Lawyer wanted to ask some questions of the Doctor about the period of currency of the medical certificate, to have the Doctor contacted but the Doctor indicated that he was not prepared to be cross-examined or to speak in Court in the proceedings.

6. The Court is therefore left with an attempted application being made in a manner in which it was explained to the Applicant father was not the manner that should be adopted as early as last Tuesday.  Since that date, the father says that actually what has prevented him from coming to Court today, so far as physical matters are concerned, are an admission to hospital last Friday, and but for that admission, he would be able to continue with the matter.

7. However, the records of the hospital actually show that he presented himself at hospital last Friday and discharged himself against medical advice on the Saturday, and the hospital records state that the father’s condition was stable. There is simply no evidence before the Court to support his contention that he is physically unable to get to Court.

8. Added to that, there is the admission of the Applicant father that previously when he asserted that he was unable to get to Court because of another physical condition in fact he did come to Court the next day, and there is also his assertion that he is able to look after his newborn child and that is as against the suggestion unsupported by any medical evidence that he is physically unable to attend Court.

9. So far as psychological injury is concerned, the father in fact says that he has been to a named psychologist on one occasion and he has then said that variously he has tried to see another psychologist, that he possibly went to another doctor; it was a person in Suburb D named Ms E.  He was unable to provide any other material and has no other material to put before the Court, except for the fact, and it is certainly accepted for the record, that his father had relatively recently passed away and that he also has been referred by the same General Practitioner (who was not prepared to answer questions in Court today) to a psychologist in respect of depression and anxiety, which the Doctor says is contributed to by financial stresses, a custody battle over his son and coping with the father’s death.

10. In all of the circumstances, in my view, there is not sufficient evidence to satisfy me that the father is incapable of conducting these proceedings.  He has filed documents, he has been able to take himself to hospital, he has chosen to discharge himself from hospital.  He is aware of what will happen in relation to the matter in the event that he does not come to Court tomorrow.  In all of the circumstances of this case, I do propose adjourning the matter to 10.00 am tomorrow, but I otherwise dismiss the father’s application for an adjournment of these proceedings.

11. The matter will commence at 10.00 am tomorrow morning and if the father is not here to put material before the Court then the matter will proceed on the basis of the mother’s case, the Family Consultant’s report and what is put to me by the mother and the Independent Children’s Lawyer.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 16 September 2013.

Associate:     

Date:25 September 2013