Rusk and Rusk

[2009] FamCA 1206

FAMILY COURT OF AUSTRALIA

RUSK & RUSK [2009] FamCA 1206

FAMILY LAW – PRACTICE AND PROCEDURE – case management – leave granted to the father to issue subpoena

APPLICANT: Ms Rusk

RESPONDENT: Mr Rusk

INDEPENDENT CHILDREN’S LAWYER: Terry Stephen

FILE NUMBER: ADF 1726 of 2006

DATE DELIVERED: 8 May 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 8 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Bosko

SOLICITOR FOR THE APPLICANT: All Family Law

COUNSEL FOR THE RESPONDENT: Mr Swan

SOLICITOR FOR THE RESPONDENT: Swan Lawyers

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms Ross

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Terry Stephen

Orders

1. That leave is granted to the father to issue a subpoena to the Administrator of The E Hospital seeking production of all relevant medical records in relation to the mother’s admission in or about December 2008 and any subsequent treatment, such subpoena to be issued within 7 days and returnable before a Registrar at 9:30am on 16 June 2009.

2. That further consideration of this case be adjourned to 9:00am on 21 September 2009.

3. That liberty is granted to the parties to arrange an earlier hearing administratively if necessary.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1726 of 2006

MS RUSK

Applicant

And

MR RUSK

Respondent

EX TEMPORE REASONS

1. This is a matter adjourned from 27 April 2009, when there was no attendance by or on behalf of the mother.  That day was supposed to be the day to consider what the position was in relation to the child the subject of these proceedings.

2. In December 2008 I had agreed to adjourn the first day of trial at the request of the parties.  I made consent orders putting in place supervised sessions at N Children's Contact Service and making other orders designed to see if this matter could resolve.

3. Unfortunately, the first problem that arose on 27 April 2009 was the mother did not attend.  She attends though today with her solicitor, and I am told that the reason for her non‑attendance was that her father had been diagnosed with lung cancer earlier in this year and that has been taking up most, if not all, of her time.  However, that does not explain or excuse the fact that there was no advice whatsoever given to the court that the mother would not be attending and, as a result, the hearing was still convened.  The taxpayer was put to enormous expense.  Legal Services will have to pay the costs of the mother.  The father had to attend and he had to arrange and have his solicitor attend.

4. The mother must appreciate that if there is some reason why she cannot attend, she should alert everyone to that beforehand.  I obviously have sympathy with her position with her father, but I find it hard to accept that that would prevent her from at least making two or three telephone calls to advise everyone that she was unable to attend.  Thus I am concerned about that and, frankly, if it happens again, there are remedies that I will not hesitate to put into place, and the mother might lose the opportunity of taking part in these proceedings.

5. That said, to repeat the mother has now attended today, and I thank her for that.  It was essential that she did, and she has her solicitor here, who will be filing a notice of address for service shortly.

6. With the consent orders that I made on 15 December 2008, there was a delay in arranging the sessions at the Children's Contact Service.  The first weekend was only arranged for 12 April 2009, but that did not occur, for reasons that I was advised of on the last occasion, namely, the letter advising of the session was dated or received on 15 April 2009.  The next session was on 26 April 2009, but the mother could not attend because she was ill.  Thus, the fact is that no sessions have yet taken place.  I am told the next session is this Sunday.  There is no issue that either the mother or the father know of today which would prevent that occurring.  Then there are sessions fortnightly thereafter, which will take the matter through to mid to late July.

7. Separate to that, the order provided for the mother to spend time with the child under the supervision of the maternal grandfather, and that has been happening and it happened as recently as 26 April 2009.

8. The other matter I want to comment on is that Ms Bosko on behalf of the mother has obviously advised me of the mother's difficulties with her father's lung cancer.  Ms Bosko has said that the mother herself suffered a nervous breakdown around Christmas and she was admitted to hospital.  She denies that that arose as a result of any drug‑taking on her behalf.  Indeed she says that she does not take drugs any more and she has overcome the problems that led to her hospitalisation at Christmas.

9. The order of 15 December 2008 provided for random drug tests at the request of the father's solicitor.  I am told that only this week there was a request for a drug test but it was not complied with.  The mother tells me that the place where she thought she could have the drug tests was not there any more or was not undertaking drug tests.  Nevertheless this failure by the mother to comply concerns me, given that the mother's history of drug‑taking is a principal issue in this case.

10. To that end, the father seeks leave to subpoena the hospital records in relation to the mother's admission to E Hospital around Christmas last year, to confirm what the mother tells me today about that or otherwise.  Obviously it would be significant and important for how this case proceeds and what the result of it might be if in fact it turns out that that hospitalisation, or the condition that the mother found herself in, resulted from taking drugs.  Anyway, I accept, of course, what the mother has put on the transcript today, and I will proceed on that basis, but I will give leave to the father to issue that subpoena.

11. Unfortunately, because of the delays that have occurred in this case, the matter needs to be further adjourned.  I will not say anything more about that, but it needs to be adjourned to as late as September, given the things that still need to happen.

12. I should note, of course, that the father has enrolled in the Kids are First program and he is due to attend that program in June.  The mother has made inquiries about that but not yet enrolled.  The consent order provided that they both enrol in that program, and thus I expect the mother to comply with that order, although I note that the order said "forthwith", and that being as at 15 December 2008, but I will not say anything more about that at this stage.

13. I do not need to make any order other than adjourning the case to enable the things that were supposed to have taken place to now take place and also to give leave to the father to issue a subpoena.

I certify that the preceding 13 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 8 May 2009.

Associate