Krill and Crawley (No. 2)

[2009] FamCA 204

FAMILY COURT OF AUSTRALIA

KRILL & CRAWLEY (NO. 2) [2009] FamCA 204

FAMILY LAW – PRACTICE AND PROCEDURE – case management – subpoena

APPLICANT: Ms Krill

RESPONDENT: Ms Crawley

INDEPENDENT CHILDREN’S LAWYER: Robert Winter

FILE NUMBER: ADF 1537 of 2006

DATE DELIVERED: 6 February 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 6 February 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:

Mr A. Kent

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Legal Services Commission

ORDERS

1. That the return date for the subpoenas to be issued by the Independent Children’s Lawyer to the Proper Officer of the Department of Correctional Services and the Proper Officer of the Drug & Alcohol Counsel be 9:30am on 5 March 2009 before Registrar Dore.

2. That leave is granted to the Independent Children’s Lawyer to issue a subpoena to the Proper Officer of Families SA to produce all relevant documents in relation to the child … born … April 2002, such subpoena to be returnable at 9:30am on 5 March 2009 before Registrar Dore.

3. That leave is granted to the Independent Children’s Lawyer to issue a subpoena to SAPOL seeking details as to the antecedents of the parties in these proceedings, such subpoena to be returnable at 9:30am on 5 March 2009 before Registrar Dore.

4. That the applicant grandmother have leave to file and serve the affidavits of evidence in chief of Mr Y, Mr R and Mr W, such affidavits to be filed and served by 4:00pm on 5 March 2009.

5. That there be additional sessions of supervised time at the Children’s Contact Centre on 28 February 2009, 14 March 2009, 28 March 2009 and 11 April 2009.

6. That the mother pay the cost of the additional sessions of supervised time at the Children’s Contact Centre including the costs of the sessions on 31 January 2009 and 14 February 2009.

7. That leave is granted to the respondent mother to either file a further affidavit of evidence in chief or file an amended affidavit of evidence in chief amending the affidavit already filed, such further or amended affidavit to be filed and served by 4:00pm 5 March 2009.

8. That the respondent mother have leave to file her affidavit filed on 22 January 2009 and the affidavit of her solicitor filed on 4 February 2009 nunc pro tunc.

9. That further consideration of this matter be adjourned to 9:00am on 20 March 2009 with a time estimate of one hour.

IT IS NOTED that publication of this judgment under the pseudonym Crawley & Krill 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 again before me today and it was hoped that the matter would be at a sufficient stage of preparedness that I could list it for a conclusion hearing.  The matter has taken longer than expected this morning, but I am pleased that it has because some issues have been sorted out which needed to be.  The worst thing to happen would be to reach trial and some of these issues that have been raised today then come out of the woodwork.  That would cause a delay at that stage, which would be unwise.  In any event the position is that the matter is still not ready to be listed for a conclusion hearing. 

2. In relation to the outstanding matters, firstly there is still a need to obtain a report from a psychiatrist as to the current state of the mother's mental health.  I am told that the mother's general practitioner has referred her to a Dr A, and it has now been ascertained that Dr A can see the mother in the next week or two.  The information from his rooms is that he would be available to give evidence in this case from April onwards.  I take it from that that the report would be available certainly by April.

3. I note that Ms S, who is the expert witness in this case, is generally available over the next few months to give evidence.

4. I then addressed with the parties the affidavits that they had filed.  Dealing firstly with the mother's affidavit, there are some issues that have been raised about the mother's affidavit which Mr Stewart himself has recognised are problems in terms of the evidence that his client is relying upon.  It is a difficult exercise, as we discussed, bearing in mind that certain rules of evidence do not apply to this process, but there is still a question of relevance and weight at the end of the day.

5. In any event, what Mr Stewart seeks is leave to either file a further affidavit of evidence-in-chief or to amend the affidavit that has already been filed, which would entail, obviously, filing a fresh affidavit.  I will leave that up to Mr Stewart and his solicitor to work out which of the two they do, but I will give that leave.

6. In relation to the affidavit of the grandmother Ms Krill, in discussing with her certain issues that I had with the affidavit, it was realised that no subpoena had been issued to Families SA who have had an involvement in this matter.  Mr Kent cannot explain why that was not the case, and we have proceeded on the basis that it was an oversight.  Mr Kent agrees that it should be done, and he has indicated that the Independent Children's Lawyer will issue a subpoena to obtain the relevant documents from Families SA.

7. That may, and hopefully will, solve a particular problem with the affidavit of the grandmother. She referred extensively to Families SA and their involvement, and all that should appear in their files.

8. Apart from that, I have explained as best I can the difficulties with the affidavit in terms of the evidence that it contains and the issues of weight and relevance, bearing in mind the particular process that this is being heard under, namely, Division 12A.  I think I have got the message across to the grandmother.  She has then quite properly raised with me that she would like to call further witnesses.  I have identified each of those witnesses with her and what each of them are going to say. 

9. At this stage I am prepared to give leave to her to call these further witnesses and prepare these further affidavits.  Obviously, once we have the affidavits, I will address the same question again as I have with her own affidavit, namely admissibility and whether there is a need for further evidence, but let us not look too far forward with this matter.  Thus I will make an order in a moment giving leave to the grandmother to file further affidavits of evidence‑in‑chief of the witnesses she proposes to call.

10. I am told by the Independent Children's Lawyer that further sessions of supervised time have been arranged with the Children's Contact Service, and they are on 28 February, 14 March, 28 March and 11 April.  There is still a session to go in the current arrangement, and that is on 14 February.  Thus I propose to make an order that those sessions take place.

11. That led to, a consideration of the question of the costs of those sessions, but more particularly, the question of the travel costs of the grandmother.  I have made orders in the past about that, both as to the payment for the sessions and also for a contribution by the mother to the travel costs of the grandmother.

12. Unfortunately though the grandmother is not prepared to tell me her current financial circumstances.  All I have asked is that she tell me what her current average income is and what her average expenses are, but, as I say, she is not prepared to reveal that information, thus unfortunately I am not in a position to make a comparison of her financial circumstances with those of the mother.  On that basis, I am not prepared to make an order that the mother contribute to the grandmother's travel costs.

13. In relation to the cost of the sessions themselves, which I understand is $22, and even though the grandmother’s financial circumstances are not before me, I propose to continue the order that the mother meet that cost.  She tells me through her counsel that that is being deducted from moneys in her solicitor's trust account, which is of the order of seven or eight thousand dollars earmarked for legal costs.  However, because I am not making any order about travel costs, I do not consider that it is too onerous on the mother, to pay for the sessions.  She is the one of course who is, along with the child, necessarily the beneficiary of the sessions.

14. As a result of all of those issues, but particularly the need for the grandmother to file further affidavit material and the need to issue further subpoenas - the Independent Children's Lawyer has indicated he will issue subpoenas to SAPOL seeking details of the antecedents of the mother and the grandmother - I propose to adjourn the matter to when most, if not all, of these outstanding issues will have been attended to.

15. As I have indicated, and I repeat, if everything else is complied with, then I would be prepared to list the matter for a conclusion hearing, although we may still not have the report from the psychiatrist.

I certify that the preceding 15 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 6 February 2009.

Associate