TOTHILL & CROWTHER

[2015] FamCA 921

FAMILY COURT OF AUSTRALIA

TOTHILL & CROWTHER [2015] FamCA 921

FAMILY LAW – CHILDREN – interim orders – where the father seeks unsupervised time with the child – where further consideration of the application is adjourned.

FAMILY LAW – COSTS – where the father opposes the adjournment – where further consideration in relation to the question of the father’s costs sought for the adjournment will be considered.

FAMILY LAW – SUBPOENA – objection – where the mother alleges that the subpoena relates to private medical information – where there is also a subpoena in relation to correspondent between the Independent Children’s lawyer and the expert who prepared the report.

APPLICANT: Mr Tothill

RESPONDENT: Ms Crowther

INDEPENDENT CHILDREN’S LAWYER: Ms Du Barry

FILE NUMBER: ADC 4457 of 2013

DATE DELIVERED: 20 October 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 20 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson

SOLICITOR FOR THE APPLICANT: Nicholls Gervasi

COUNSEL FOR THE RESPONDENT: Ms Pyke Qc

SOLICITOR FOR THE RESPONDENT: Angela Ferdinandy Solicitor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Pyke Qc	Ms Du Barry
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Services Commission of South Australia

Orders

1. Further consideration of the Application in a Case filed by the father on 10 July 2015 is adjourned to Monday 9 November 2015 at 9.15 am before the Honourable Justice Dawe.

1. Further consideration will be given in relation to the question of the father’s costs sought for today’s adjournment.

1. The mother to file and serve any response and supporting affidavit upon which she seeks to rely by 4.00 pm on 4 November 2015.

1. The mother to attend on the adjourned date in person unless appropriate application is made within the seven [7] days prior to the hearing for attendance by electronic communication.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tothill & Crowther 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 ADELAIDE

FILE NUMBER: ADC 4457 of 2013

Mr Tothill

Applicant

And

Ms Crowther

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The application before me concerns the significant issues in relation to the best interests of the child of the parties, being the Application in a Case filed by the father on 13 July 2015, in which he seeks unsupervised time with the child B born in 2011, pending the trial.  That is sought in accordance with the recommendations of Dr C in her report of 30 May 2015. 

2. Other issues that are before me today are also in relation to subpoenas which have issued to the mother’s doctor, as she appears to be objecting to the subpoena on the basis that her medical information contains private information.  I also understand that it relates to the detail of the length of the time of the information being sought.  There is also a subpoena in relation to correspondence between the Independent Children’s Lawyer and the expert who prepared the report, Dr C. 

3. Those matters obviously need to be determined in order that the matter can be prepared for trial.  However, I consider that the matter that has to be taken into account primarily in this application for the adjournment is the report annexed to the affidavit received this morning, which is a report from a doctor in Port Lincoln, dated 15 October 2015, which says that the mother:

   …who has been sick with a pulmonary infection for the past three weeks and has had fever, chills, headaches, generalised body aches and pain associated with the cough and breathing difficulty, not sleeping well.

4. The next paragraph is the significant part, because it says:

   She has been unable to attend her normal work and certainly not in a good functioning position to make any legal decision for the next two weeks.

5. The adjournment was opposed by counsel on behalf of the father, and I can understand why, considering the long delay there has been in resolving the issues concerning the subpoena material and, more importantly, the issues concerning his desire to spend unsupervised time with the child.  However, it is necessary for the Court to be seen to be applying fairness.

6. Taking into account the material in the report annexed to the affidavit it is clear that the Court has to consider that the mother apparently will not be in a position to make legal decisions, and therefore receive appropriate legal advice and give instructions in relation to the matters which are before the Court.  I consider, therefore, that the Court is required to grant the adjournment, and I will do so on the basis that the matter comes back before the Court on 9 November at 9.15  am before me.  Further, on the basis that the material upon which the mother seeks to rely is to be filed and served by 4 November 2015.

7. It is important that the matter not be further delayed.  I will consider my obligation to ensure that the child has the benefit of a meaningful relationship with both of the parents not ignoring the primary consideration in relation to the protection of the child. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 20 October 2015.

Associate: 

Date:  27 October 2015