Greco and Pendle

[2008] FamCA 910

FAMILY COURT OF AUSTRALIA

GRECO & PENDLE [2008] FamCA 910

FAMILY LAW – PROCEDURAL – Interim trial issues

Family Law Act 1975 (Cth)

APPLICANT: Ms Greco

RESPONDENT: Mr Pendle

INDEPENDENT CHILDREN’S LAWYER: Ms M Orwin

FILE NUMBER: DNC 683 of 2007

`DATE DELIVERED: 26 August 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 26 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms D Elliott

SOLICITOR FOR THE APPLICANT: Northern Territory Legal Aid Commission

COUNSEL FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms M Orwin

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Margaret Orwin Barrister

Orders

1. That the listing of this matter to commence as a trial on 4 September 2008 be vacated.

2. That this matter be adjourned to 2:00pm on 10 November 2008 before a Registrar for the purpose of directions being made on the basis of this matter being listed for trial in the November/December sittings of the Family Court in Darwin with priority.

3. That paragraph 1 of the order made on 20 August 2008 be amended to provide that the conclusion of the time that the child is to spend with the father be 2:00pm on 11 September 2008.

4. That further consideration of this matter be adjourned to 9:30am on 9 September 2008.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNC 683 of 2007

MS GRECO

Applicant

And

MR PENDLE

Respondent

EX TEMPORE REASONS

1. This matter was listed to commence as a trial before me in Darwin on 4 September 2008.  All affidavits have been filed, and I have made the usual orders about the filing of summaries of argument and the like.

2. The case is ready to proceed subject to the following:

   2.1The return of a subpoena issued to the Tamarin Centre.

   2.2Ms Elliot's intimation that she wishes to argue the admissibility of certain documents.

   2.3The father viewing two DVDs of interviews of the child.

3. I need to take these issues into account in determining what I now do with this case, given that the mother has filed an application seeking that the trial be adjourned and that application is listed before me today.

4. The reason the mother gives for seeking the adjournment is, in effect, her medical condition.  She is pregnant.  She is due to deliver on about 17 or 18 October.  That was something that was always known and when this trial was set, it was set as early as possible in the circuit to try and avoid any difficulties associated with that pregnancy.

5. However, in support of her application the mother has filed an affidavit which annexes a short report from her medical practitioner in E, which indicates that the mother is unwell with nausea, frequent headaches and neck pains.  The doctor felt that the stress of the court hearing created a risk of premature labour.  His view was that if possible the trial should be put off.

6. There were some unanswered questions arising from that short report, and to deal with that we arranged for the doctor to be available by telephone.  He has now elaborated on his report.  The long and the short of it is that the doctor is still of the view that there are risks in proceeding with this case at the moment - the risk being premature labour - but there are also other risks associated with the mother's medical condition.  On that basis, the mother still pursues her application.

7. The father's position was initially that he opposed that application, for understandable reasons.  However, a suggestion has been put that if the case was adjourned to the next circuit, which is in November‑December, the father and his witness could give evidence by way of video-link and also the father could be involved in the hearing by way of that video-link.  That would obviate the need for him to travel to Darwin, and that was one of the issues he had given his financial circumstances.  He would still be able to travel to Darwin next week for the purpose of seeing the child and spending time with the child as per my order.

8. Given that, the father is not so strident in his opposition to the application.  To use my phrase, which he agreed with, he said he could live with an adjournment in those circumstances.  Ms Orwin has said if that is an option that is available, then she would support that.

9. For my part, frankly, I am not entirely satisfied with the medical evidence that is before me as to the need for the adjournment.  However, I am satisfied that there is a risk associated with proceeding with this case.  Whether that is a risk that relates to anything to do with this case or something else - and I have in mind the doctor's indication that the mother has anxiety issues separate to this case, but however the anxiety arises, if a situation developed during the running of the case that the mother could not continue, then that would create a part‑heard situation which would be impossible to deal with in terms of my availability and maybe the father's availability.

10. For that reason and that reason only, namely the risk of the matter becoming part‑heard, I am prepared to adjourn it, but, as I say, extremely reluctantly and not being entirely satisfied about how this has arisen in terms of the mother's position and the timing of this.

11. I am comforted in making that decision by the option that is available, which is hearing the matter in November‑December by use of a video-link, and also I am comforted by the fact that the child will still have the opportunity to spend time with the father in Darwin next week.

12. Thus I propose to adjourn the matter.  However, to save time and ensure that the matter is able to be completed in November‑December, I propose to deal with all interlocutory issues of which there are at this stage two, namely, the further subpoena issued by the independent children's lawyer and the question of admissibility of certain documents.

13. I propose to list this matter still during the sittings in Darwin.  The issue of the subpoena is already listed on 1 September; and I will leave that in place.  Ms Orwin, I anticipate, will be the only one that needs to attend because all that will happen, I assume, is the making of an order for leave to inspect and copy.

14. To deal with the argument as to admissibility, I propose to list that on Tuesday, 9 September 2008 at 9.30am.

15. I am reminded I need to also make an order slightly varying my order providing for the child to spend time with the father, such that there is a specified time for the conclusion of that period.

16. I have made the order in chambers in relation to objections to material in affidavits, providing lists of documents to be tendered and summaries of argument, but I do not expect those orders need to be complied with just yet.  New orders will be made in that regard in the lead‑up to the listing in November‑December; and I will leave that to the new trial judge.

I certify that the preceding 16 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 26 August 2008.

Associate