Osterton and Sunderland (No. 3)

[2009] FamCA 736

FAMILY COURT OF AUSTRALIA

OSTERTON & SUNDERLAND (NO. 3) [2009] FamCA 736

FAMILY LAW – PRACTICE AND PROCEDURE – Trial directions

Family Law Act 1975 (Cth)

APPLICANT: Mr Osterton

RESPONDENT: Ms Sunderland

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 5281 of 2007

DATE DELIVERED: 1 July, 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: BROWN J.

HEARING DATE: 1 July, 2009

REPRESENTATION

THE APPLICANT: No appearance by the applicant

SOLICITOR FOR THE RESPONDENT: Campbell McAuley

INDEPENDENT CHILDREN’S LAWYER Pearsons Schetzer

Orders

1. That the applicant have leave to swear, file and serve a further affidavit of his evidence in chief by 4:00 pm. on Monday 6 July, 2009. 

2. That the independent children’s lawyer have leave to file and serve a subpoena for the attendance of an employee of the Department of Human Services, for the purpose of tendering DHS records. 

3. That the respondent have leave to file and serve a subpoena for the attendance of Dr. L, psychiatrist.

4. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of solicitors appearing as counsel.

AND THE COURT NOTES

That the landline telephone number provided by the applicant in a letter faxed to the court dated 30 June, 2009 was not in service when the court convened at 2:15 pm. this day. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 5281 of 2007

MR OSTERTON

Applicant

And

MS SUNDERLAND

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter was listed this morning at the request of the applicant.  On 26 June, 2009 he faxed a letter to the court, seeking a hearing at 9:30 am on 30 July, 2009, to which he attached a fax addressed to the respondent’s solicitor in which he referred to four matters which required the case to be listed prior to the trial date of 9 July, 2009.

2. The first was advice of an operation booked for 14 July, 2009 and advice that “barring any mishap, I will be ready to continue on 16 July, 2009”.  The second was a request “to file my evidence to Monday 6 July (as I will be interstate on Wed. 1 July to Friday 3 July 09)”.  The third was a request for subpoenas “to call my witnesses”.  The fourth stated :

   I would like a review to explain why [Ms LD] is a necessary witness to assist both sides in most matters before the court.

3. At my direction the parties were advised that the court could not accommodate a listing on 30 June but would list the matter today.  Given the applicant’s advice that he would be interstate, all parties were advised they could appear by telephone, provided they each provided a landline number to the court by 4:00 pm. yesterday.  The applicant was advised that if he sought an adjournment of the trial for medical reasons, he would need to put medical evidence before the court. 

4. On 30 June, 2009 another fax was received from the applicant in which he advised he had cancelled the appointment at the Alfred Hospital, did not yet have accommodation in Sydney or a landline number but provided a landline number (02 …) on which he might be reached.  The handwritten heading on the document is “3:50 pm. Tuesday 23 June, 2009” but it was received at the court at 16:22 on 30 June, 2009. 

5. Today the solicitor for the respondent and the ICL appear by telephone, having advised landline numbers.  The landline number provided by the applicant has been rung;  a recorded voice reports that the number is not in use.

6. The initiating application in this matter was filed on 11 May, 2007, more than two years ago.  It is listed for a trial to commence on 9 July, subject to a part-heard case only.  Despite the absence of the applicant, I propose to deal with the matters raised by him and make any orders which will facilitate the trial. 

7. As the applicant has advised he has rescheduled the operation initially booked for 14 July, the court need not consider that aspect further. 

8. Orders made on 7 April, 2009 required the applicant to file and serve an affidavit containing his evidence in chief and an affidavit of each other witness on whom he sought to rely at the trial by 15 May, 2009.  The respondent was to serve her affidavit of evidence in chief and the affidavit of each witness on whom she sought to rely by 5 June, 2009. 

9. On 26 May, 2009 the applicant filed an affidavit sworn by him, to which are annexed some 31 annexures.  On 11 June, 2005 he filed another affidavit sworn by him, which had no content save that it referred to four annexures;  three were affidavits sworn by other deponents and the fourth was a statement allegedly made by Ms LD.  On 19 June the court ordered that the affidavit filed 11 June, 2009 be removed from the court file and that the three affidavits which were attached to it sworn, variously, by Ms MC, T Osterton and Mr S, be filed on that day, noting their effective filing date to have been 11 June, 2009. 

10. As the applicant’s material had been filed late, the court extended the time in which the respondent could file her material to 3 July, 2009.  At no time did any order provide for answering material. 

11. The applicant’s request to “late file my evidence to Monday 6 July” may have resulted from a discussion on 19 June about the affidavit sworn by the applicant and filed on 26 May, 2009, which seemed to be responsive, at least in part, to affidavits sworn by the applicant and a witness, Ms LR, in 2007 when the case was first before the court. 

12. To facilitate the trial, and despite the applicant’s failure to appear, I am satisfied that an order should be made granting him leave to file a further affidavit of evidence in chief by 3 July, 2009.  That is the date sought by him. 

13. The court need not consider the request for the issue of subpoenas, as subpoenas were issued at the applicant’s request on 26 June, 2009. 

14. That leaves the last matter, being the applicant’s request for a review of the decision of 19 June, 2009 to reject the applicant’s request for a subpoena to issue to compel the attendance of Ms LD to give evidence at the trial.  That application was considered on 19 June and reasons given for its rejection.  Nothing satisfies me it should be reconsidered.

15. The trial will otherwise remain listed to commence at 10:00 am on 9 July, 2009, subject to a part-heard case only. 

I certify that the preceding
15  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2009.

…………………………………………
Associate.