Scheibner-Grover, M. (Now Grossman) and Ryan, a.

[1987] FamCA 15

In the marriage of SCHEIBNER-GROVER, M. (now GROSSMAN) and RYAN, A.

(1987) FLC ¶91-833

Other publishers' citations: (1987) 11 FamLR 727

Full Court of the Family Court of Australia at Sydney.

Judgment delivered 22 July 1987.

Before: Evatt C.J., Ellis and Kay JJ.

Evatt C.J., Ellis and Kay JJ.: This is an appeal from orders of Hogan J. that the respondent/wife be allowed to take the child of the marriage A out of the Commonwealth of Australia to the United States of America and that part of a subpoena addressed to the respondent/wife requiring her to produce to the Court from her possession custody and control all her appointment diaries from 1 January 1985 to date relating to her business and personal affairs be struck out.

The parties were married on 17 June 1977 and separated in January 1984. Their marriage was dissolved by a decree of the Family Court of Australia which decree became absolute some time prior to October 1986. There was one child of the marriage A who was born on 7 October 1978. Consent orders were made on 8 August 1985 granting the parties joint guardianship of the child and the wife sole custody. The husband was granted certain defined access and an order was made that the child continue for the time being to be a pupil at a specified school.

By a Form 7 filed on 6 February 1987 and returnable on 25 February 1987 the wife sought to vary the existing custody order to enable her to remove the child from the Commonwealth of Australia and take him to the United States of America. In an affidavit in support of that application the wife deposed that she was a specialist medical practitioner who had developed a unique technique for the treatment of skin disfigurement of children under the age of 15. She had been granted a visiting chair as a professor of dermatology at the University of Texas and had been invited to go to the United States of America for a period of two to five years to teach her technique and to open a series of clinics. She deposed that the child A had been in her custody since October 1984. She deposed that the husband had remarried in October 1986 and that his wife was expecting another son to be born in March 1987. She also deposed that the husband had not given his permission to the removal of the child. She set out arrangements she would make for the child in the United States and indicated that she would allow to the husband access in Australia at his expense three times a year.

The matter came on for hearing before Hogan J. in a duty list on 25 February 1987. The solicitor for the wife informed the Court that his client wanted to leave for overseas in April/June 1987. The solicitor for the husband indicated that his client was considering seeking custody of the child. His Honour made the following directions:

``The husband is to file and serve any material in opposition to the application of the wife in seven days from today's date, failing which the matter is to be put back in the list for hearing before me by arrangement with the Registrar as soon as possible after the expiration of that date. I direct the parties to attend counselling under sec. 62(1)(a), such counselling to be effected at the earliest convenient time that the counsellor can make available. The parties will file certificates of readiness as soon as the affidavits are completed. On failure to do so by either party the matter will be put back in the list before me on short notice. On the certificates of readiness being filed the Registrar is directed subject to my being available or not interfering with the business of the Court to put the matter back in the list before me as soon as the court business permits after the certificates of readiness have been filed.''

On 3 March 1987 the husband filed a Form 8 application to be heard, subject to any order made by the Court, at the same time as the application of the wife filed on 6 February 1987 in which he sought custody of the child A, the grant of liberal access to the wife and an order that A continue to attend his present school until such time as he successfully completed his Year 12 education.

On 5 March 1987 the husband filed an affidavit in support of his cross-application in which he deposed that he was a senior language teacher with 15 years employment with the Department of Education. He deposed that he had had care and control of the child for the first three months after separation and that from March 1984 to August 1985 he had spent as much time with the child as had the wife. He deposed that the parties had seen a child psychiatrist specialising in family therapy and that in the course of discussion with the doctor the wife had assured the doctor that she had no intention of going to the United States in the foreseeable future, but that if she did the child would not accompany her because he needed stability. The husband complained that the wife's work schedule was such that she was unable to personally supervise the child as she had promised to do. He set out proposals in support of his custody application which involved his present wife, her four-year-old son and the child she was expecting to give birth to at the end of March. He said that the child A suffered learning difficulties and had required continual remedial support and ``from my experience as a teacher I believe A is at risk unless this remedial work continues''.

The wife filed no material in answer to that affidavit.

On 5 March 1987 the husband filed a further affidavit in answer to the wife's affidavit. In it he joined issue with some of the matters in the wife's affidavit and deposed to a conversation between himself and the wife in the presence of the child psychiatrist as recently as 19 December 1986 in which he made it clear that he would oppose the removal of the child from Australia. The wife on 11 March 1987 filed an affidavit dealing directly with the matters raised in the husband's second affidavit.

On 3 March 1987 the husband's solicitor issued a subpoena to produce documents in compliance with Form 38 of the Family Law Rules addressed to the wife requiring her

``...to attend at this Court at 75-85 Elizabeth Street, Sydney, on the 12th day of March 1987 at 10 o'clock and so to attend from day to day, unless excused by the Court or a Registrar until the hearing of the above proceedings is completed, to produce to the Court from your possession, custody or control the following books, documents or things:

... (h) All appointment diaries from 1 January 1985 to date relating to your business and personal affairs.''

The subpoena also sought production of sundry other documents and contained the usual warning that failure to obey the subpoena may result in the issue of a warrant for arrest or a fine not exceeding $500.

Apparently as a result of a practice peculiar to the Sydney Registry of this Court the subpoena was made returnable before a Registrar on 12 March 1987 notwithstanding that there were no proceedings between the parties returnable that day. The wife, through her solicitors, took objection to the production of her professional diary and appointment books and the Registrar referred the question of her objection to do so to Hogan J.'s list on 24 March 1987.

At 11.10 a.m. on 24 March 1987 the matter came on for hearing before his Honour. The solicitor for the wife took objection to the production of the diaries on the grounds of relevance. Counsel for the husband indicated that the diaries were relevant to the amount of time the wife was able to spend with the child. His Honour, without giving any reasons, struck out paragraph (h).

The wife's solicitor then indicated that he had prepared a certificate of readiness on behalf of the wife, but had received in reply from the husband's practitioners a letter indicating that they desired to file an affidavit from a psychiatrist within seven days of 24 March 1987. The following exchange then took place:

``Solicitor for the wife: This, your Honour, was a matter where the wife came into custody by the consent of the husband, your Honour, in August of 1985, and has had the custody of the child since, and your Honour, there has been no previous indication to us of any reason why a psychiatrist should be involved, nor, your Honour, in view of your Honour's directions, has there been any application to us for extension of time, or to the court for extension of time.

His Honour: [Counsel for the husband named], what is the position? There is no certificate of readiness been filed?

Counsel for the husband: The reason for that, your Honour — we would not oppose that the matter be set down for a hearing. The problem with the wife is that — with the husband, your Honour, is that his present wife is pregnant and has entered hospital today, after having some...

His Honour: What about 2 o'clock this afternoon? Do you want the husband present, [wife's solicitor named].

Solicitor for the wife: For hearing, your Honour? Yes.

His Honour: [Counsel for the husband named]?

Counsel for the husband: Your Honour, I had not complete [sic] it — but what I was going to say to your Honour was that there is a child psychiatrist who was seeing the parties and the child up to and after the time that he consented to the wife having access — having custody of the child, and it is a report that we would require from that particular doctor as to what he considers in the best interests of the child in relation to going overseas and not seeing the father, and that is a matter that we would hope to have before the court this week.

His Honour: On 25 February, I made an order; your attorney was present. The husband was to:

file and serve any material... after the exporation [sic] of that date.

You filed one — one day out of time; apparently no issue was raised about that. You have not filed — why cannot you do it at 2 o'clock this afternoon?

Counsel for the husband: Your Honour, I cannot undertake that the psychiatrist would be available by that time.

His Honour: I do not want him here; he is not on affidavit.

Counsel for the husband: He is not on affidavit. We would seek to put him on affidavit, your Honour, in the best interests of the child. My instructions are that if the psychiatrist's report is wholly in favour of the wife's application...

His Honour: The matter will proceed on the evidence as it stands at 2 o'clock this afternoon.

Counsel for the husband: Your Honour, the husband's present wife is in hospital.

His Honour: When did she go to hospital?

Counsel for the husband: She went in last night, your Honour.

His Honour: It is well outside the seven days that was given, and your instructing attorney made no — the limitation period of seven days for your client to file material. It will proceed at 2 o'clock on the evidence that is available. I will return that letter. Will you want to cross-examine the wife, [counsel for the husband named], or can she be released?

Counsel for the husband: Yes, your Honour, I would.

His Honour: You want to cross-examine her do you?

Counsel for the husband: This afternoon?

His Honour: Yes.

Counsel for the husband: Yes.

His Honour: You will have her available, [wife's solicitor named]?

Solicitor for the wife: Yes, your Honour, she is available.

His Honour: All right, 2 o'clock.''

At 2 p.m. counsel for the husband informed the Court that his client's wife was in labour at the Royal Hospital for Women and that she had had difficulty with her previous birth when her child was born deaf. In the circumstances, the husband found it impossible to leave his wife's side in the labour ward. He further advised the Court that he wished to file an affidavit from the psychiatrist, but if the psychiatrist took the view that it was unquestionably in the interests of the child to remain with the mother and proceed overseas then the husband would withdraw his opposition to the wife's application. It was indicated to the Court that no contact had been made with the psychiatrist since at least 25 February 1987. It was also acknowledged that the husband failed to attend at the counselling appointment, but it was sought to explain his failure to attend arising out of personal difficulties arising out of accommodation and his wife's pregnancy. His Honour then indicated that the matter would proceed, whereupon counsel for the husband and his instructing solicitor indicated his instructions went only to the application for the adjournment and, in the event, that it was not granted, to withdraw. His Honour granted them leave to withdraw from the proceedings and then heard a very short address from the wife's solicitor.

In his Honour's reasons for judgment he made reference to the husband's opposition to the wife's application, but concluded:

``The essence, then, of the husband's opposition is not the fact that it is not in the best interests of the child to stay with the mother, but the fact that he has not heard from the psychiatrist an opinion that it would be in the best interests of the child to stay with the mother. It follows, then, that there is no attack, no positive attack, upon the question of whether the child is best served by remaining with the mother. It is purely and simply that the father wants to have the psychiatrist's expression one way or the other. For example, it is not suggested that the mother will not look after the child properly, or that she will not house him properly, or that she will not attend to his schooling, or that she will not be able to look after his emotional and material requirements.''

Later in his reasons for judgment his Honour said:

``It seems to me that, for reasons best known to himself, the husband has decided that he will delay matters as far as he can, and possibly with the hope of defeating the wife by the mere effluxion of time and not being able to have the matter heard.

I adopted the attitude this morning that it was in the best interests of the child that this matter be heard and be heard promptly so that the mother should know where she stood and so that the boy himself will know where he is to be and what his future is. It was put to me that the matter should be adjourned because the husband is with his wife who is having a baby, and he is not here and he would like to be here, and counsel for the husband put it to me that the case should not proceed in the absence of a party.

It seems to me there is every indication that if the matter were to be postponed for hearing on another date, the husband would find that he could not be here, and I would be confronted with the same argument that the matter should not proceed in the absence of a party.

I have proceeded for the reasons that I have indicated, and, having refused the adjournment, I was then informed by counsel for the husband that his instructions were withdrawn, and the husband's solicitor informed me that his instructions were withdrawn.

It may possibly be said in another place that those two gentlemen having withdrawn from the proceedings, the husband's cross-application has not been properly dealt with, there was no one here to prosecute it, and that I should then of my own motion have adjourned the matter in the interests of the child. The simple answer to that is that both the husband's solicitor and counsel have been concerned with this case all along. They have both informed me that the instructions that they received were from the husband. He has chosen to adopt that course. It occurs to me that he himself is aware that the psychiatrist would say that the best he could do for the husband would be that in the light of the husband's changed circumstances, about which we know very little, in the light of the advent of a new baby into their family, the psychiatrist would probably not be able to say what is in the best interests of the child.

In any event, as the wife's solicitor has pointed out, it is not for the psychiatrist to say what his views are. That is a matter for me to decide. I can see no reason at all why the custody of the boy should not stay exactly where it is with the mother, and indeed, as I say, there is nothing appears contrary to that view being adopted in the best interests of the child.''

The principal ground of the appeal is that his Honour's insistence that the matter be fixed for hearing on less than three hours' notice and his subsequent refusal to grant an adjournment of the hearing amounted to a denial of natural justice. Other grounds were argued before us by counsel for the appellant/husband relating to whether any of the findings made by his Honour were appropriate to make in light of the husband's material in opposition to the wife's claim, but as we have decided to uphold the appeal in respect of the adjournment ground it is unnecessary for us to deal with other matters.

``The rule that no man shall be condemned unless he has been given prior notice of the allegations against him and a fair opportunity to be heard is a cardinal principle of justice.''
Halsbury's Laws of England Vol. 1, 4th ed., para. 74.

In R. v. Thames Magistrates' Court; Ex parte Polemis [(1974) 2 All E.R. 1219] a patch of oil was seen on water near a ship. At 10.30 a.m. on a day on which he was due to sail the Master of the ship was summonsed to appear at the Thames Magistrates' Court at 2 p.m. to answer a charge that he had breached the Prevention of Oil Pollution Act 1971. He sought an adjournment to enable him to prepare his defence and was refused the adjournment. In the course of delivering the judgment of the Court of Appeal Lord Widgery C.J. said [at p. 1223]:

``To start with, nothing is clearer today than that a breach of the rules of natural justice is said to occur if a party to proceedings, and more especially the defendant in a criminal case, is not given a reasonable chance to present his case. It is so elementary and so basic it hardly needs to be said. But of the versions of breach of the rules of natural justice with which in this court we are dealing constantly, perhaps the most common today is the allegation that the defence were prejudiced because they were not given a fair and reasonable opportunity to present their case to the court, and of course the opportunity to present a case to the court is not confined to being given an opportunity to stand up and say what you want to say; it necessarily extends to a reasonable opportunity to prepare your case before you are called upon to present it. A mere allocation of court time is of no value if the party in question is deprived of the opportunity of getting his tackle in order and being able to present his case in the fullest sense.''

See also R. v. Small Claims Tribunal (1976) V.R. 427.

In Petrovic v. Taara Formwork (Canberra) Pty. Ltd. (1982) 62 F.L.R. 451 at p. 460 an action for damages for personal injury commenced on a Thursday. The following Friday afternoon counsel for the plaintiff sought to have the matter stood over to the following Monday as a witness was unable to attend court because her mother had died that morning. The adjournment was refused and the plaintiff appealed to the Full Court of the Federal Court of Australia. Their Honours Toohey, Kelly and Fitzgerald JJ. in their reasons for judgment allowing the appeal said:

``The circumstances in which an appellate court will review the exercise of a discretion to grant or refuse an adjournment have often been considered, for example, by the Full Court of this Court in Squire v. Rogers (1979) 39 F.L.R. 106, and by the High Court in McInnis v. The Queen (1979) 143 C.L.R. 575 and Bloch v. Bloch (1981) 55 A.L.J.R. 701. It is adequate for present purposes to observe that for the appellant to succeed he must show that refusal of the adjournment produced, in the circumstances, such an injustice that there should be a retrial. In assessing what justice requires, it is no doubt appropriate to take into account a variety of circumstances, including any disadvantage which will accrue, or has accrued, to the respondent including any forensic advantage which a retrial will provide to the appellant.

It is not sufficient that we think that an adjournment should have been granted. The learned trial judge seems to have been influenced by the state of the list and by a suggestion that a hearing on the following Monday might prove less than convenient to counsel for the respondent. There seems to have been considerable confusion. Part of what was said suggests that it was known that the matter would go on on Monday. Other parts suggest that it was inevitable that it would go on on the Monday unless the court sat well beyond 4.30 p.m. For example, counsel for the respondent mentioned that its medical witness was not available on the Friday but would be available on the Monday. Further, he mentioned that the evidence in chief of his witnesses would take about half an hour. Obviously, cross-examination would be expected to take the hearing past 4.30 p.m. on the Friday. In other parts counsel for the respondent mentioned that a further hearing on the Monday was unsuitable to him and that his position would grow worse as the week progressed. Yet, when his Honour did adjourn at 4.30 p.m. on the Friday to 10 o'clock on the Monday morning, he did so without protest from counsel for the respondent who duly arrived to conduct his case. It was less than satisfactory, we think, to refuse a plaintiff an adjournment so late on a Friday afternoon when a witness whom he wished to call was absent for such an excellent reason as the death that day of her mother when it was plain that she otherwise would have attended.

We do not know what evidence Dr Tennant would have given. It was apparently not opened either earlier or during the course of the application for adjournment. We were told during the hearing of the appeal by counsel for the appellant that he had had a conference with Dr Tennant prior to the commencement of the hearing and that the evidence which she would have given would have involved a significant amplification and qualification of the last paragraph of her report.

However, it does not seem to us that we are required to enter into such questions. We do not think that it can be gainsaid that the appellant was entitled to call his psychiatrist, particularly having regard to the vital importance in the case of the issue of his credibility and whether or not he was malingering. It is impossible to assess the impact of Dr Tennant's evidence had she been requested to comment or to express an opinion in the light of the evidence which the appellant had given...''

In Taylor v. Taylor (1979) FLC ¶90-674 at p. 78,596 Mason J. said:

``The Full Court should then have approached the case on the footing that it was prima facie the right of each party to have the proceedings heard in his or her presence and that justice to both parties required that each party should be entitled to present his or her case. As Jenkins L.J. said in Grimshaw v. Dunbar, [1953] 1 Q.B. 408, at p. 416:

`... a party to an action is prima facie entitled to have it heard in his presence; he is entitled to dispute his opponent's case and cross-examine his opponent's witnesses, and he is entitled to call his own witnesses and give his own evidence before the court. Prima facie that is his right, and if by some mischance or accident a party is shut out from that right and an order is made in his absence, then common justice demands, so far as it can be given effect to without injustice to other parties, that that litigant who is accidentally absent should be allowed to come to the court and present his case — no doubt on suitable terms as to costs, as was recognized in Dick v. Piller [1943] K.B. 497.'''

Finally, in Judicial Review of Administrative Action, Christopher Enright, 1st ed., at p. 524 the learned author says:

``Just as notice of an original hearing must be given so must it be given of an adjourned or re-opened hearing (R. v. Smith, ex parte Mead (1975)). (1975) Tas. S.R. 148.

Part of the requirement to give notice is a duty to adjourn when it is necessary to enable a person to present their case. Thus an adjournment must be given... where ill health prevents attendance (Rose v. Humbles (1971) W.L.R. 1061, (1972) 1 W.L.R. 33).''

This matter had come before his Honour on 24 March 1987 for hearing only in relation to the subpoena argument. There was no requirement for the husband to be present for that argument. The husband would have had no reasonable expectation of the matter being heard that day and, whilst it was in everybody's interests to have the matter disposed of as quickly as possible, once there was reasonable opposition raised to having the matter dealt with on less than three hours' notice, in our view his Honour had no option but to grant the adjournment sought. In our view, the appeal should be allowed and the orders 1 and 2 made by his Honour set aside and the matter remitted for re-hearing. We recommend that the hearing be expedited.

We should not let the opportunity pass without making some observation about use of the provisions of O. 28 as an aid to discovery.

In our view, O. 20 governs the practice and procedure for pre-trial discovery and inspection and O. 28 should only be used to ensure the production of appropriate documents at the hearing of any application.

Waind v. Hill and National Employers Mutual General Association Ltd. (1978) 1 N.S.W.L.R. 372 at p. 382.

In the Marriage of Mallet (1981) FLC ¶91-091; (1981) 7 Fam. L.R. 1027 at p. 1045.

We therefore order:

1. That the appeal be allowed.
2. That orders 1 and 2 made on 25 February 1987 be set aside and that the matter be remitted for re-hearing.

We recommend that the hearing be expedited.