Saracuna & Siddele (No 2)
[2022] FedCFamC2F 293
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Saracuna & Siddele (No 2) [2022] FedCFamC2F 293
File number(s):
SYC 7132 of 2018
Judgment of:
DEPUTY CHIEF JUDGE MCCLELLAND
Date of judgment:
16 March 2022
Catchwords:
FAMILY LAW – Parenting – adjournment – where the mother has commenced proceedings in this Court seeking that the father be restrained from exercising his parental responsibility for the purpose of administering of the Covid-19 vaccination to the child – where the mother seeks an adjournment due to being in receipt of a grant of legal aid but not being legally represented – where the mother seeks an adjournment on the basis that she is currently suffering with Covid-19 – where the Independent Children’s Lawyer seeks for the matter to be brought to finality – matter set down for final hearing – adjournment application granted
Cases cited:
Anton & Malitsa (No. 2) [2009] FamCA 242
Brown v Brown [2022] NSWSC 16
Gallo v Dawson (1990) 93 ALR 479; [1992] HCA 44
Nabers & Nabers [2011] FamCAFC 145
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; [1997] HCA 1
Division:
Division 2 Family Law
Number of paragraphs:
13
Date of hearing:
16 March 2022
Place:
Sydney
Applicant:
Litigant in Person
Solicitor for the Respondent:
King & York Lawyers
Solicitor for the Independent Children's Lawyer:
Mark MacDiarmid Family Law Specialist
ORDERS
SYC 7132 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SIDDELE
Applicant
AND: MR SARACUNA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
DEPUTY CHIEF JUDGE MCCLELLAND
DATE OF ORDER:
16 MARCH 2022
THE COURT ORDERS THAT:
1.The mother’s application for an adjournment of the Interim Defended Hearing listed before Deputy Chief Judge McClelland at 10:00 am, 21 March 2022 is granted.
2.The matter is transferred to Division 1 of the Federal Circuit and Family Court of Australia.
3.The matter is set down for final hearing, in respect to all issues, before the Honourable Deputy Chief Justice McClelland at 10:00 am, 9 May 2022 with an estimated hearing time of four (4) days.
4.No later than 21 days prior to the trial date, the Applicant father file and serve:
(a)any Amended Initiating Application setting out with particularity the precise final orders sought;
(b)an updated single consolidated trial affidavit;
(c)other witness affidavits upon which they intend to rely;
5.No later than 14 days prior to the trial date, the Respondent mother file and serve:
(a)any Amended Response setting out with particularity the precise final orders sought;
(b)an updated single consolidated trial affidavit;
(c)other witness affidavits upon which they intend to rely
6.Pursuant to r 7.11 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) each party may, if they so choose, rely upon evidence from an expert adversarial witness in respect to the issue as to whether or not it is in the child’s best interest to be administered with the covid-19 vaccination.
7.No later than 7 days prior to the trial date:
(a)the Applicant file and serve any affidavit(s) in reply addressing only the evidence presented in the Respondent(s)' affidavits; and
(b)the Independent Children's Lawyer file and serve any affidavits relied upon.
8.No later than 2 days prior to the trial date, all parties are to file and serve a case outline document in the approved form which shall not, without leave, exceed 5 pages and shall include:
(a)a list of the material relied upon;
(b)a copy of the precise orders sought;
(c)a brief chronology listing significant events that are relevant to the issues to be determined by the Court;
(d)a bullet point summary of their argument in support of the orders that they are seeking.
9.Each party will be permitted to rely on one consolidated trial affidavit and one affidavit in reply (if applicable) only. Reliance on earlier or additional affidavits will not be permitted unless leave of the Court is given.
10.All documents required to be filed and all other documents sought to be relied upon (including any court books) must be filed or provided (as applicable) in electronic format to the Court and to each other party.
11.Costs of the mention listing on 16 March 2022 and the vacated Interim Defended Hearing on 21 March 2022 are reserved.
12.The mention listed before Judge Neville at 9:30 am, 7 June 2022 is vacated.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Saracuna & Siddele has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MCCLELLAND:
This matter was set down before me today for a compliance hearing prior to the interim defended hearing listed before me on Monday 21 March 2022. The purpose of the interim defended hearing is for the hearing of an application by the mother to restrain the father from exercising parental responsibility previously provided to him by an order of the Court made on 10 June 2020.
The circumstances in which the application have been made to this Court were that on 14 January 2022 in the matter of Brown v Brown [2022] NSWSC 16, Kunc J of the Supreme Court of NSW made an order restraining the father from exercising his parental responsibility to administer a Covid-19 vaccination to the child on the condition that the mother commence proceedings in this Court. Specifically, with a view to it being listed in the Covid list by the following Monday. The mother did that and the matter has duly been listed in the Covid-19 list.
The matter has previously been listed for hearing in respect to the single issue as to whether the restraint that currently exists on the father administering the Covid-19 vaccination for the child should or should not remain in place. There have been several adjournments at the application of the mother.
A further application for adjournment has been made in respect to next Monday’s listing. The reasons for that adjournment are set out in an affidavit filed by the mother on 16 March 2022. I have read that affidavit and in broad terms the information provided in that affidavit is in support of the mother’s contentions as to why there should be an adjournment. Further, the mother sent an email dated 11 March 2022 to my Associate requesting an adjournment on the basis of the content of six points as follows:
1.Continued lack of legal representation.
I still do not have legal representation, to which I am entitled. Legal Aid notified me on Tuesday afternoon (8th March) of a lawyer who initially, then, informed Legal Aid that she was willing to take on the case, but that willingness was only until the next day, Wednesday, when a lawyer from that firm wrote back to me:
“When we accepted the offer of work from Legal Aid, we were not informed that your matter was currently in court or any details about your matter. On review of the large volume of material you have provided, and taking into account we have 2 lawyers off work with COVID, we do not have capacity to take on your matter. We have informed legal aid that we cannot possibly manage the work and Legal Aid will allocate the matter to another lawyer for you.”
So I am back to waiting to be allocated a lawyer.
The time restraints that are imposed by the present schedule themselves, I believe, would reduce the chance of any solicitor being willing to take on the case at such a late hour as this presently is.
2.Delays encountered trying to obtain copies of [X]’s medical records
As all parties are aware, I need to obtain copies of [X]’s medical records to provide to my medical expert witness to enable completion of the preparation of the expert witness report.
Initially there was discussion in court from which I inferred that there would be a need for me to issue subpoenas to get copies of [X]’s medical records.
Accordingly (with my limited knowledge about the process), I was expecting a court order regarding the issue of subpoenas. However when I received the orders on 21st February there was no such order.
After that I learnt of the requirement “to make all attempts to get the required document or evidence” before issuing a subpoena, and I have accordingly been trying to do so.
However I have been met with various delays. The responses from the medical centres have taken generally several days, and when I have received them:
the [B Centre] ([Dr C]) has to date sent me copies of only three letters that [Dr C] has written and are electronically stored. It has not sent me anything else such as copies of any letters that he has received from any other doctor, or any notes or records that he has handwritten such as any record of [X]’s attendance mid 2021.
the [D Hospital] has informed me that they could not provide any such information to me because the father had not named me as a next of kin. So that also caused a delay of 4 days while I had to put together and send them the information that they required to record me as authorised to receive copies of the records.
the [E Clinic] at [Suburb F] has yet to send me its records.
I have received most of the records held at [G Centre], but not yet copies of any letters that have been written by [Dr H] or other doctors [X] has seen there. I am expecting to receive on Monday what has not been sent to me to date.
Therefore, I am still in the process of follow-up in relation to all four of these medical practices. On Wednesday, [G Centre] informed me that if I request them via the local GP here, that would probably speed up the process to . So I did that yesterday.
If I do end up having to issue any subpoena(s), I learnt this week that unless the court directs otherwise,
I will need to provide at least 10 days for the subpoena'd documents to be provided to the court. Even if I was to request the issue of any subpoena today, 10 calendar days from today would be Monday 21st March 2022, which is the presently scheduled day of the Interim Defended Hearing, and
the documents must also be returnable no later than 3 days before any court event to which the subpoena relates.
So the rules, in combination with the presently scheduled dates for the expert witness report (by Wednesday 16th March 2022) and the hearing (Monday 21st March 2022), do not provide for sufficient time for the receipt of any documents whose production will require subpoena.
3.Temporary debilitation of medical expert witness due to illness
[Dr J], whom I chose to be the medical expert to prepare the report, and has been doing so, texted me on Tuesday (8th March) and informed me that although he is still committed to completing the report for me, he had been taken ill and was texting me from ICU.
4.My illness and positive test result for covid-19
This week I have developed cold-like symptoms and tested positive to covid-19. I am suffering nasal congestion, fatigue and mild headaches. This has a temporary debilitating effect on what I am able to do. I am also required by NSW public health directions to self-isolate at home for 7 days.
5.[X] has just developed natural immunity to covid-19
[X] tested positive to covid-19 last weekend, so she has now developed natural immunity. That changes her risk profiles in relation to both non-covid-19-injection and covid-19-injection, which is the primary subject of the application. That will result in the need for extra work by my medical expert witness to report on how her profile now stands, which will hence require further time to be spent on that report.
Her new status of natural immunity must also undermine the grounds for any urgency, from the perspective of her best interests, with respect to the decision as to whether or not covid-19 injection is to be permitted, and if so when it ought to be administered. ATAGI accept that at least for those who are healthy, natural infection with an earlier variant provides natural immunity against the Omicron variant for at least 4 months ( It is reasonable to expect it to be a longer period than 4 months in the case of natural infection with Omicron itself, but at this stage it is too soon to know what minimum accepted duration of natural immunity ATAGI will extend that to.
6.Technical problem
For approximately a week, I have had an intermittent problem with the screen on my mobile phone which frequently times prevents my being able to use it, including access to the internet. I have ordered a new mobile phone, which I am expecting to receive next week.
Because of this problem and my present illness, it has only been with significant assistance provided by a friend that I have been able to compose and send this email to you.
All of the above are, in my view, reasons to adjourn the matter and the question after that would then become what would be appropriate as the period of adjournment.
Considering [X]’s accepted natural immunity of at least 4 months, and relevant medical information that is not yet available to anyone in relation to how much longer than that she will be accepted as carrying natural immunity, I request consent for the hearing to be adjourned for 4 months, to July 2022.
Additionally, in her submissions today as set out in her affidavit, the mother refers to the fact that as of last Tuesday 9 March 2022 she was diagnosed as suffering the Covid-19 infection and so was the child.
The mother has also indicated that she has been unable to arrange legal representation in the period.
In State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, Kirby J discussed at 164 why an adjournment application requires a balancing exercise to be undertaken. That exercise involves consideration of the resources of the Court, its rules and its management and also the need to consider justice for both parties: see Anton & Malitsa (No. 2) [2009] FamCA 242 at [10]-[12].
In doing so “proper consideration needs to be given to the particular disadvantages suffered by a self-represented litigant” (Nabers & Nabers [2011] FamCAFC 145 at [36].) That is not to say, however, that a self-represented litigant is entitled to any “privilege” over and above that of a represented litigant: Gallo v Dawson (1990) 93 ALR 479 per McHugh J at 481.
Having considered those matters the only justification for the adjournment is the fact that it is unreasonable to expect the mother to prepare and present an argument as a self-represented litigant next Monday in circumstances where she has recently succumbed to the Covid-19 infection.
It is solely on that basis that I have determined to adjourn these proceedings from the listing which is next Monday 21 March 2022.
In circumstances where the child has been the subject to ongoing protracted litigation I respectfully agree with the submission of the Independent Children’s Lawyer that it is desirable this litigation be finalised as soon is reasonably practicable.
On that basis I intend to list not only the issue which is in the Covid-19 list but also the totality of the proceedings for final hearing before me on 9-13 May 2022.
For all of these reasons, I make the orders as set out at the commencement of this judgment.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Deputy Chief Judge McClelland.
Associate:
Dated: 16 March 2022
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