Richards and Morris (No 2)

[2015] FamCA 130

FAMILY COURT OF AUSTRALIA

RICHARDS & MORRIS (NO 2) [2015] FamCA 130

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Where mother’s application to adjourn further hearing of the part-heard trial was refused yesterday – Where at that time, the Court noted such should not preclude the mother from pressing a further application based upon ill-health, supported by proper material – Where mother has since filed an affidavit of her medical practitioner – Where Court noted there was a degree of scepticism about the timing of the mother’s presentation to the doctor on 27 February however noted that on the material before the Court, whilst not wholly excluding suspicion, speaks that the mother is genuinely incapacitated at this point – Where Court satisfied that in the interests of justice weigh in favour of the grant of the adjournment – Where Court ordered that the matter be adjourned.

Family Law Act 1975 (Cth)

APPLICANT: Mr Richards

RESPONDENT: Ms Morris

INDEPENDENT CHILDREN’S LAWYER: Ms Meehan

FILE NUMBER: TVC 829 of 2013

DATE DELIVERED: 3 March 2015

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 3 March 2015

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Byrne

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Mr Victoire

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: M M Meehan

Orders

1. The mother’s Application in a Case filed 19 February 2015 be dismissed.

2. The hearing of the trial of this matter is to resume at 10:00am, Monday 1 June 2015 in Townsville, unless otherwise ordered.

3. The matter be listed for mention at 9:00am, Tuesday 17 March 2015 in Townsville with all parties having liberty to appear by telephone, at which time the court is to be updated in respect of the mother’s health and whether the trial will be ready to proceed in June or earlier.

4. Leave is given to the Independent Children's Lawyer to issue a subpoena to the proper officer of the C Town GP Super Clinic.

5. Order 2 of the Orders of Registrar Coutts made 24 February 2015 is discharged.

6. Order 3 of the orders of Registrar Coutts made 24 February 2015 is amended so as to only refer to edited copies of subpoenaed document bundles 24 to 27 both inclusive.

1. In the event that either party wishes to brief an expert in relation to the issues of the authenticity or authorship of various email, text or other electronic communications or materials with any documents within subpoenaed document bundles 16, 17 and 19 (“the documents”) then:

   (a)they are to:

   (i)      advise the Independent Children's Lawyer in writing of that witnesses’ name and contact details;

   (ii)     provide the Independent Children's Lawyer with an undertaking in a form suitable to the Independent Children's Lawyer, signed by the expert, by which the expert agrees to maintain all information in the documents strictly confidential, including confidential from the parties, without leave of the court first obtained; and

(b)upon the parties paying the Independent Children's Lawyer’s reasonable costs of copying the documents, the Independent Children's Lawyer is to provide one copy of the documents to the parties’ relevant expert.

NOTATION:

A.The next hearing of this matter at 9:00am on Tuesday 17 March will be way of telephone.  Please dial into the genesys meeting room 5 minutes prior to the commencement.

Dial …

Then dial … (including the stars)

Wait on hold until the Court Officer calls on your matter.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Richards & Morris 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 TOWNSVILLE

FILE NUMBER: TVC 829 of 2013

Mr Richards

Applicant

And

Ms Morris

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Yesterday morning, I rejected the mother’s application to adjourn the resumption of the hearing of the trial of this matter, for reasons which I then gave.  At the conclusion of those reasons however I identified, amongst other things, that my criticism of the medical certificate that had been provided to me in part lay in the way in which it had been cast and the very brief way in which it was drawn, and foreshadowed the opportunity for the mother to obtain proper material and to then reagitate for the adjournment of the trial this morning.

2. The mother has availed herself of that opportunity and has filed an affidavit of herself dated today, and an affidavit of a Dr F sworn or affirmed yesterday.  Dr F’s affidavit is far more fulsome than the doctor’s certificate that was relied upon yesterday.  Particularly at paragraph 4 of that affidavit, he said:

   It is my opinion it would be detrimental to [Ms Morris’] health to travel.  I understand self-representing litigants are under pressure.  This is beyond pressure.  [Ms Morris] is not functioning in any capacity to be competent at trial to conduct a matter on her own, or even with assistance at this time.

   He then said in paragraph 6 that in his opinion the mother is not in any condition to attend court proceedings or run a trial this week, and at paragraph 7 he identified that she presented on 27 February with a number of symptoms including fluid behind the ears which would prevent travel, and also blurred vision, nausea, hearing difficulties, exhaustion and stress.  At paragraph 8 he repeats that the concerns in relation to mental health and physical health would make it impossible for the mother to continue or proceed with the trial, and repeated that there was an inability to travel at this time.

3. One has to confess to a degree of scepticism about the timing of the mother’s presentation to the doctor on 27 February.  On that day one would have expected the mother to in fact have been in Townsville to inspect material that was then made available on subpoena, or otherwise preparing this matter for the resumption of the trial on Monday, even accepting that she had an application to adjourn the trial that was listed for 10 o’clock on that morning.  There is room to suspect that the mother had no intention of attending in Townsville yesterday under any circumstances; however that matter, on the material before me, can advance no further than a suspicion.

4. Moreover, the suspicion is allayed in large part by the fact that on the Friday the mother was prescribed an anti-insomniac drug, was referred for pathology and apparently was referred for mental health treatment, presumably by a psychologist (although that is unclear), and was required to return, it appears, to the doctor’s surgery on 6 March for further consultation.  All of that is consistent with the mother in fact having a genuine medical condition.  Of course, it is impossible at this point in time to determine one way or the other.  Suffice to say that the material before me, whilst not wholly excluding suspicion, nonetheless speaks that the mother is genuinely incapacitated at this point.

5. Yesterday in my reasons I identified that the resources of this court in this city are scarce, and that the public has a right to expect that those resources will be invested wisely.  However, that is not the only matter that the court needs to advertent of in determining whether to accede to applications to adjourn or not.  Clearly the interests of justice are the criterion against which the application should be determined.  Plainly, on the material before me, the mother is presently incapable of attending trial, or travelling from C Town to Townsville, and would be, even if she were here, apparently, severely incapacitated in her capacity to present her case.  Therefore, it seems to me that the interests of justice on this occasion weigh in favour of the grant of the adjournment.

6. It is of course appropriate to note that it is most unfortunate that the court time is now lost with the inevitable consequence that further time will need to be somehow or other found.  In this regard, the father has travelled from Brisbane and identifies that any resumption of the trial would be more easily accommodated by him if it were in Brisbane.  It may be in due course that the matter can resume in Brisbane, noting that the mother at least is presently in C Town and may well have relocated there.

7. So for those reasons I am satisfied that the matter should adjourn.  I will list the matter to resume before me in Townsville on 1 June 2015, however I will also list the matter for a further telephone directions hearing at 9 am on Tuesday 17 March.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 3 March 2015.

Associate: 

Date:  3 March 2015