Krill and Crawley

[2009] FamCA 198

FAMILY COURT OF AUSTRALIA

KRILL & CRAWLEY [2009] FamCA 198

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena

APPLICANT: Ms Krill

RESPONDENT: Ms Crawley

INDEPENDENT CHILDREN’S LAWYER: Robert W. Winter

FILE NUMBER: ADF 1537 of 2006

DATE DELIVERED: 27 January 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 27 January 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Stewart

SOLICITOR FOR THE RESPONDENT: North East Lawyers

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mrs Tinning

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Legal Services Commission

ORDERS

1. That leave be granted to the Independent Children’s Lawyer to issue a subpoena to the proper officer of the Department of Correctional Services to produce documents in relation to the conditions of the bond that the mother has entered into and her compliance with those conditions.

2. That leave be granted to the Independent Children’s Lawyer to issue a subpoena to the proper officer of the Drug and Alcohol Services Council seeking production of any notes and records regarding the mother’s appointments with the Service including any drug screen tests.

3. That the time for the mother to file and serve an affidavit annexing a report from her drug and alcohol counsellor, a report from her counsellor Ms N and a report from Fresh Start Services be extended to 4:00pm on Monday 2 February 2009.

4. That further consideration of this matter be adjourned to 9:30am on Friday 6 February 2009.

5. That leave be granted to the maternal grandmother to attend that hearing by way of telephone link.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1537 of 2006

MS KRILL

Applicant

And

MS CRAWLEY

Respondent

EX TEMPORE REASONS

1. This matter was listed today for a continuation hearing.  I made orders on 6 November for the filing of affidavits by today, with a view to then listing the matter for a conclusion hearing.  Unfortunately the matter is not ready to proceed to a conclusion hearing, and the prime reason for that is that there is still no psychiatric report in relation to the mother's mental health before the court.

2. The mother makes an application for an extension of time to be able to file a report of a psychiatrist, and that is not opposed by Ms Leeson for the independent children's lawyer, and the grandmother makes no comment and leaves it up to me.

3. In the circumstances, I am prepared to give the mother one last chance to provide a psychiatric report.  She is seeing her general practitioner on Thursday, 5 February.  She understands that he has been looking for a psychiatrist to whom he can refer the mother.  It is anticipated that on 5 February her general practitioner will be able to tell her the psychiatrist that he proposes to refer her to and hopefully provide a time frame for that to occur.  Thus on the 5th hopefully the mother will know the psychiatrist that she can see and the time frame for obtaining the report.

4. I propose to adjourn the matter to 6 February to await the outcome of that exercise.  That will also solve a couple of other issues that have arisen.  One is that there is an affidavit prepared by the mother’s solicitor which annexes the reports which were the subject of an order I made on 6 November 2008.  Unfortunately that affidavit has not reached the court file, and there is one report which does not appear to have been annexed to the affidavit.  This short adjournment will enable that to be tidied up and an affidavit filed annexing all those reports, and I extend the time for that to be done.

5. In addition, there is a need to consider the continuing arrangements for the child to see his mother.  In that regard, inquiries need to be made of the Children's Contact Service as to whether they are prepared to continue the arrangement that has been ongoing, really, pending trial.  The Independent Children's Lawyer will need to make some inquiries about that.

6. As a consequence of that, and if they are prepared to do that, then the question of the maternal grandmother's costs will need to be addressed again, as it has been in the past.  I would propose to do that on the adjourned date, subject to what the Independent Children's Lawyer tells me about the availability of the Children's Contact Service.

7. I should also note that it had been suggested that a Mr R may be an appropriate alternate supervisor, and that issue was left on the basis of the Independent Children's Lawyer speaking to Mr R and then forming an assessment as to his suitability.  I am told, though, by Ms Leeson today that Mr R is not prepared to supervise, and so that is not an option that is available.  Thus at this stage we are left with continuing the supervised sessions at the Children's Contact Service.

8. There have been three affidavits filed since my order.  There is an affidavit of Mr Winter, the Independent Children's Lawyer, and that annexes a report or reports from the child's school.  There is an affidavit of the mother's, intended to be an affidavit of evidence-in-chief, and an affidavit of the maternal grandmother, also intended to be an affidavit of evidence-in-chief.

9. I have not read those affidavits line for line; I managed to skim through them.  I must say that I was immediately struck with the amount of hearsay which was in both affidavits.  Of course, this is a matter proceeding under Division 12A, and the rule against hearsay does not apply.  However, that does not mean that it will necessarily be admitted, and I will be making rulings about what I will receive and what I will not and what weight I will give to matters and what I will not.

10. Separate to that, Ms Leeson is seeking to issue subpoenas as a result of reading the mother's affidavit, and I propose to give that leave.  That said, unfortunately I need to adjourn this matter and I propose to adjourn it 6 February 2009.

I certify that the preceding 10 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 27 January 2009.

Associate