HARSHANI & DARNITH

[2015] FamCA 618

FAMILY COURT OF AUSTRALIA

HARSHANI & DARNITH [2015] FamCA 618

FAMILY LAW – PRACTICE AND PROCEDURE – Children – adjournment granted for to allow for the production of documents pursuant to subpoena issued by the mother – where the mother appears in person.

Family Law Act 1975 (Cth)
APPLICANT:	Mr Harshani

RESPONDENT: Ms Darnith

FILE NUMBER: MLC 1556 of 2010

DATE DELIVERED: 3 February 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 3 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Turkoglu

SOLICITOR FOR THE APPLICANT: Tai Lawyers

THE RESPONDENT: In person

Orders

IT IS ORDERED THAT

1. The applications in a case filed 3 December 2014 and 9 January 2015 and the contravention application filed 20 November 2014 be adjourned for further hearing or for directions for further hearing to the Judicial Duty List at 10.00 am on 3 March 2015 or 10.00 am on 20 March 2015, to be advised.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harshani & Darnith 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 MELBOURNE

FILE NUMBER: MLC 1556 of 2010

Mr Harshani

Applicant

And

Ms Darnith

Respondent

REASONS

1. The applications before me in the Judicial Duty List this day are the father’s applications in a case filed 3 December 2014 and 9 January 2015 and his application for contravention filed 20 November 2014. 

2. These matters were last listed for hearing before Benjamin J on 14 January 2015.  On that date, his Honour adjourned the matter for directions and possible interlocutory hearing before Bennett J at 10.00 am this day.  His Honour noted that the father asserted that the contravention application filed 20 November 2014 and two affidavits sworn 19 November 2014 were served on the mother personally on 7 January 2015 at a Magistrates’ Court and although the mother disputed such personal service on that day she conceded that the contravention application filed 20 November 2014 and the two affidavits of 19 November 2014 were served personally upon her on 8 November 2014. The mother was also handed a copy of a letter from Dr F dated 14 October 2012 addressed to the Registrar of the Family Court on the day of the hearing before Benjamin J. 

3. Benjamin J noted that the mother had acknowledged that she had an obligation to attend Court today, and that if she did not attend there was a risk that orders could be made in relation to the residence or spend time arrangements for the child, G, who was born in 2008. 

4. The father seeks to proceed with his application for contravention today.  However, as a result of the mother being handed the copy of the letter from Dr F dated 14 October 2012 at the hearing before Benjamin J, she wrote to Bennett J’s chambers raising issues with respect to that letter and asking the Court to investigate what she said was the fraudulent nature of the letter which was handed to her at the hearing on 14 January 2015. 

5. As a result of that letter, the mother was granted leave to issue a subpoena to Dr F to produce records in relation to the father and in relation to the letter dated 14 October 2012.  That subpoena was issued on 23 January 2015 and is returnable on 18 February 2015.  The mother seeks an adjournment until after those documents have been produced, it being her case that she had reasonable grounds for failing to provide the child to spend time with the father pursuant to the orders of Federal Magistrate Hughes, as she then was, made on 30 April 2012, on the basis that the father has not submitted himself to “therapeutic counselling or treatment by a psychiatrist, psychologist or counsellor for a period of two years from the date of these orders, unless the therapist advises in writing that the therapy is no longer required”.

6. Whilst it is the father’s case that his therapist did advise in writing that therapy was no longer required, the mother challenges the validity of that evidence.  The father’s solicitor has drawn my attention to paragraph 21 of Judge Hughes’ reasons for judgment delivered on 25 October 2012 with respect to the mother’s oral application for a stay of the orders of 30 April 2012.  At paragraph 21 of her reasons, Judge Hughes said as follows:

   When asked why she has failed to make the child available, the mother gave four reasons.  Firstly, she said the father is supposed to comply with orders for ongoing counselling or treatment by a psychologist or psychiatrist and she initially was not satisfied about that.  However, I am satisfied on the father’s material that he has engaged with a psychiatrist (or a psychologist, I think in this case) and that was all he was required to do prior to the commencement of the overnight time.

7. Clearly Judge Hughes was satisfied on the evidence before her at that time that the father had complied with paragraph 19 of her orders of 30 April 2012 however, there are two issues with respect to that.  Firstly, I do not know what evidence Judge Hughes had before her that day and secondly, it is the mother’s case that it is since she received a copy of the letter from Dr F dated 14 October 2012 that she has come to the conclusion that that letter is not genuine. 

8. I am very conscious that the father in this case says he has not seen the child since 30 October 2014.  The mother says he saw the child on 2 November 2014, but that is disputed.  I am conscious of the need to have this matter resolved.  There have been many misunderstandings in this matter and it has had a long history.  That being said, the mother is representing herself.  She has been given leave to issue the subpoena for the purposes of these contravention proceedings and, in all of the circumstances, weighing up the prejudice to both parties, given the serious nature of those contravention proceedings and the ramifications for the mother, I am satisfied that the matter should be adjourned for hearing until after the return date of that subpoena. 

9. In those circumstances, I propose to adjourn the matter to the Judicial Duty List on 3 March 2015, with the rider that it may be that there is no time in that List for the matter to proceed on that day, but at the very least there will be an opportunity for directions to be made for the matter to be dealt with if there is no time in the Duty List. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 3 February 2015.

Associate: 

Date:  12 March 2015