Application of Director-General, Department of Family and Community Services; Re BS (No 3) [2013] NSWSC 1740

Supreme Court New South Wales

Medium Neutral Citation: Application of Director-General, Department of Family and Community Services; Re BS (No 3) [2013] NSWSC 1740 Hearing dates: 17 September 2013 Decision date: 17 September 2013 Jurisdiction: Equity Division - Adoption List Before: Brereton J Decision: Adjourn matter to 5 December 2013 at Bega. Catchwords: PRACTICE AND PROCEDURE - Adoption proceedings - request for adjournment by first defendant mother due to illness - first defendant still under cross-examination when proceedings adjourned but hearing close to conclusion - consideration of whether substantive prejudice caused by adjournment and utility of adjournment - adjournment granted. Category: Procedural and other rulings Parties: Director-General, Family and Community Services (applicant) CS (first defendant) TF (second defendant) Representation: Counsel: Mr J Harris (applicant - solicitor) Ms S Leis (first defendant) TF (second defendant - in person) Solicitors: Crown Solicitor's Office (applicant) Tony Cullinan Lawyers (first defendant) File Number(s): A162/2013

Judgment (ex tempore) 1HIS HONOUR: The final hearing of these proceedings commenced on 21 August 2013 and continued on 22 August when they were adjourned, part heard, to 4 September, when it was envisaged that they would be concluded. However, they were not concluded on 4 September but that day were adjourned part heard to today, it being envisaged that they would be concluded today and/or tomorrow. 2The plaintiff's case and cross-examination of the plaintiff's witnesses was completed on 4 September. The first defendant gave oral evidence, her affidavit having been read, on the afternoon of 4 September, commencing at 3pm. She was cross-examined by the second defendant and then on behalf of the plaintiff, until the proceedings were adjourned at about 4.15pm. She was still under cross-examination when the proceedings were adjourned. 3On 13 September, the solicitor for the first defendant notified the Court that he had been contacted by his client with advice that she was unwell and unable to attend Court that day and had subsequently been provided with a medical certificate from one Dr Kulhalli. Her solicitor's letter advised that further attempts were being made to contact Ms S and that there may have to be an application for an adjournment. Today, application is made on behalf of the first defendant for an adjournment of the proceedings. 4The application is made on medical grounds. The first defendant's solicitor deposes to having received a text message from his client on 12 September as follows: Hey, Tony, it's CS. I'm very unwell. I'm going to my doctor. I am not going to the next court case. Please let them know ASAP and I will give you a call later on okay. 5The solicitor then had a conversation with the first defendant, in the course of which she said: I am depressed and down with anxiety. I can't go to court and I want you to get me an adjournment. 6Later that day, Dr Kulhalli provided the medical certificate dated 12 September 2013, in which he says: CS attended our clinic today for her anxiety and depression. She is unable to attend her upcoming court case due to her mental health issues. She has suffered from mental health issues since 2005 and prognosis of her anxiety depression remains uncertain. 7Further attempts to contact Dr Kulhalli, including during the course of an adjournment this morning, have so far been unsuccessful. So were further attempts to contact Ms S, until late this morning, when her solicitor was able to have a conversation with her in the course of which, as reported to the Court, she is said to have indicated that she is "crook with depression", that she is back on medication as of last night, that she has been suffering from anxiety since returning to Bega after the last hearing associated with the stress of Court and travel, and the noise of the city, that even four times per annum - a reference to the frequency of contact visits - is "too much", and that she was feeling "mixed up". Some statement was also made which might suggest that she was reconsidering her opposition to the adoption or, at least, to her professing any realistic prospect of restoration. However, it is fair to say that the position in that respect is unclear and ambiguous. 8Given the medical evidence in the proceedings generally and the case that has been advanced both on her behalf and against her in respect of her medical condition, there is no reason to doubt that, however deficient the medical evidence on this application might be, she is bona fide unwell and feels unable to travel to Court. This is in the context that she was present and gave evidence at the preliminary hearing on 5 March 2013 and that she has been present each day until today of the final hearing. In those circumstances, I do not think I should do other than proceed on the basis that the application is made bona fide. 9Sight should not be lost of the gravity and significance of the proceedings: dispensing with the consent of a child's natural mother, however strong the case, it is not lightly to be done, and it could well be understood that if it were done in circumstances where the mother had not had a full opportunity to advance her case - and, indeed, if it were done in her absence - a sense of injustice might well be aroused. Again, that has to be seen in the context that she has fully participated in these proceedings to date, whatever might have been her record in earlier child protection proceedings many years ago now. 10While there is always the prejudice of distress and disappointed expectations of finality in adjourning proceedings, and while, no doubt, in proceedings of this kind there is a real interest in resolving them as expeditiously as possible, it is fair to say that, given the child's present placement and stability, there is little substantive prejudice involved in an adjournment. 11Of more doubt in my mind is the utility of an adjournment, given what Ms S is said to have relayed or informed her solicitor and her likely participation in the proceedings in the future. There may be ways in which that participation can be facilitated, either by audio-visual or telephone link, or by the Court sitting in Bega. 12Ms S is said to have observed that it might be months before she is better. I do not think that the case should have to wait months on that account, particularly if measures can be put in place to reduce the disruption to Ms S of the kind that I have mentioned. However, given the current state of her instructions to her lawyers and my acceptance that the application is made in good faith and on proper, if poorly proven, medical grounds, and given the grave nature of what is in issue from her perspective, I think I must accede to the application for an adjournment, so far as today is concerned. 13It having been ascertained that the court in Bega is available and that Ms S would find that much easier, I adjourn the proceedings to 5 December at 10.00 am in Bega. 14I will list the proceedings for mention on 21 November 2013 at 9.30am, to ensure that they will be ready to proceed.