Allsop and Allsop

[2007] FamCA 155

FAMILY COURT OF AUSTRALIA

ALLSOP & ALLSOP [2007] FamCA 155

FAMILY LAW - PRACTICE AND PROCEDURE – Neither party to issue subpoena without first obtaining leave of the court

Family Law Act 1975 (Cth)

State of Queensland and Anor and JL Holdings Pty Ltd (1996 – 1997) 189 CLR 146
JRN and KEN v IEG and BLG (1998) 72 ALJR 1329

APPLICANT: Mr Allsop

RESPONDENT: Mrs Allsop

INDEPENDENT CHILDREN’S LAWYER: Ms Karagiannis

FILE NUMBER: SYF 3341 of 2006

DATE DELIVERED: 8 March 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 1 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kearney

SOLICITOR FOR THE APPLICANT: Barkus Edwards & Doolan

COUNSEL FOR THE RESPONDENT: Mr Gidaro

SOLICITOR FOR THE RESPONDENT: Crimmins Legal

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Legal Aid Commission of NSW

Orders

1. By consent, and pursuant to the Family Law Rules, Orders be made in terms of the document entitled “Minute of Consent Orders” and marked as Exhibit “A” as annexed hereto.

2. The Independent Children's Lawyer (in coordination with the Manager of Child Dispute Services (if necessary)) assist the parties in participating in a post separation parenting program and the parties each do all things to attend at any appointments that are arranged by the provider of that program and otherwise cooperate in involving themselves in that program.

3. Leave be granted to the solicitor for the mother to issue subpoenas to the NSW police and the child’s pre-school, such subpoenas returnable before the Magellan Registrar on 3 April. 

4. Neither party is to:

   4.1.file any affidavit without the leave of the Court;

   4.2.issue a subpoena without first obtaining the leave of the Court.

   Should either party wish to file any affidavit or issue any subpoena they are to make that application when the matter is before me or if it is urgent apply to the Magellan Registrar for a listing before me if I am practicably available or another judge, on 48 hours notice. 

5. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders

6. This matter is adjourned to Friday 4 May 2007 at 9.15am.

IT IS DIRECTED:

1. That the mother and father exchange between themselves and provide copies to Independent Children's Lawyer and my associate, minutes of orders which will be sought at the final hearing, a list of the facts and issues upon which the court will be asked to make a determination at the final hearing and a list of the witnesses who will be called and the facts and issues upon which they will give evidence.

2. The clinical psychologist and counsellor who the child attends is to be given a copy of Dr W’s report. 

IT IS NOTED:

1. That Dr W has made recommendations about the parent’s involvement with the practitioner the child attends, in his report in the last paragraph on page 24 which extends to the top of page 25. 

FURTHER DIRECTIONS MADE IN CHAMBERS:

1. That the Independent Children's Lawyer send a copy of the report by Dr W dated 7 February 2007 to the provider of the post separation program referred to in order 2 above. 

2. That order 7 be complied with by each party by 27 April 2007.

3. That by 13 April 2007 the Independent Children's Lawyer send to each of the parties a chronology setting out a draft list of agreed (non controversial) facts.

4. That on or before 23 April 2007 each party inform the Independent Children's Lawyer about any fact on the draft list of agreed facts with which they do not agree and the Independent Children's Lawyer shall remove that fact from the agreed list of facts. 

5. That on or before 27 April 2007 the Independent Children's Lawyer forward by email to the Magellan Registrar the agreed list of facts. 

Exhibit A

1. That Orders 2, 3 and 4 of the Orders of this Court on 11/12/06 be discharged.

2. That Order 1 of the Orders of this Court on 19/12/06 be discharged.

3. That the paternal relative be and hereby is released from her undertaking of 9/12/06.

4. That it is noted that the effect of the above Orders is that the parenting arrangements for the child B, born August 2002 shall be in accordance with the interim consent orders of 31/4/06 pending further order and that:

   4.1the Father’s time in accordance with Order 2(a)(i) therein shall commence on Friday 9/3/07; and

   4.2the Father shall ensure the child attends pre-school on a Thursday when in his care.

5. That the Father and Mother shall forthwith do all things necessary to cause the child (and, if necessary, the parties) to attend upon a clinical psychological as (and for the purposes) recommended by Dr W or as agreed in writing between the parties.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3341 of 2006

Mr Allsop

Applicant

And

Mrs Allsop

Respondent

REASONS FOR JUDGMENT

1. This matter came before me in the Magellan list on 1 March 2007. 

2. Interim parenting orders were made on that day.

3. Other orders were made requiring the parties to set out what final orders they sought, define facts and issues to be determined at the final hearing and what witnesses each party sought to call in relation to those facts and issues. 

4. I indicated that I also intended to make an order that neither party seek to issue any further subpoena without my leave.

5. Counsel for the father objected to that order being made.  He requested that I provide reasons for making that order.

6. The terms of the relevant order was:

   “Neither party is to:

   1.      .....;

   2.      issue a subpoena without first obtaining the leave of the Court.

   Should either party wish to ..... issue any subpoena they are to make that application when the matter is before me or if it is urgent apply to the Magellan Registrar for a listing before me if I am practicably available or another judge, on 48 hours notice.”

7. The father’s application for final orders was filed on 30 June 2006. 

8. Accordingly (by one day) the provisions of Division 12A Part IIV Family Law Act do not apply to these proceedings.

9. The decision to be made in this case will ultimately be about what time the child will spend with both his parents and whether or not any supervision of the child’s time with his father should be ordered.

10. The parties to date have in their affidavit material filed for interim proceedings and in discussions with Dr W, have raised a wide variety of facts and issues.

11. The directions I made on 1 March 2007 are aimed at narrowing and confining the facts and issues that will be the subject of judicial determination. 

12. The Magellan list accepts cases where serious allegations of abuse and violence have been raised.  The program is Judge managed.  The cases are given some priority compared with cases in the general list so that serious allegations can be dealt with expeditiously. 

13. It is important for the successful management of such cases that some restraint is placed upon the adversarial behaviour of parties.  The court itself has an interest, on behalf of the child, to efficiently manage the hearing of the matter.

14. Much of what’s in the new Division 12A is a statutory statement of the inherent power that any superior court of record has. This is particularly the case in matters involving interests of a third person who is a child.

15. Kirby J said in the State of Queensland and Anor and JL Holdings Pty Ltd (1996 – 1997) 189 CLR 146 at pages 168 and 169:-

    “3.   Although “some form of case management has always existed”, the role of judges in Australia in directing the progress of at least large and complex litigation has increased greatly in recent years.  Such functions are now regarded as a necessary and orthodox part of the judicial function.  The view has been expressed by experienced Australian judges that, without more effective management of litigation, the system would be likely to collapse.  The conviction that accumulating delays occasion serious injustices has led to a greater use of case management as the only effective means by which judges can respond to their ever increasing case loads without benefit of commensurate increases in judicial numbers and resources.  The advent of judicial management to replace the passive observance of the “game” by a neutral judicial umpire, has produced a context of judicial intervention, case control, electronic filing and other reforms which should not be overlooked in reviewing the exercise of a judicial discretion in a particular case.  Not only is a return to the languid days in which Cropper v Smith was decided impossible.  Any attempt to do so would now afford justice to one litigant at a potential cost of inflicting serious injustice on many others and on the public.  The gradual transformation of judicial functions in the way described is not confined to Australia.  It exists in the United States of America.  It has also been accepted in England.  Some commentators suggest that the change in the judicial role represents the adaptation of the traditional common law concept of the judicial to interventionist techniques of judging typical of the civil law.

    4.   In some jurisdictions, such changes have been sustained by special Rules of Court made under legislative authority.  But even where special rules have not been provided, alterations to the judicial role have been accommodated within the broad discretions conferred by rules expressed in unqualified terms.  Whilst such rules may not be limited by particular language, they do imply parameters which must be understood by reference to the conventional requirements of justice....” [footnotes omitted]

16. Rule 15.17 Family Law Rules allows a party to request the issue of a subpoena.  Rule 15.18 provides that subpoenas not be issued at the request of self represented parties unless the party has first obtained the Registrar’s permission.  Rule 15.21 places a limit on the number of subpoenas that can be issued in interim proceedings.

17. The Rules therefore allow a party who is represented by a lawyer to request the issue of a subpoena without the court’s permission.  Rule 1.12 allows the court to dispense with any rule on its own initiative and in doing so the court is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case and having regard to the administration of justice (Rule 1.12(3)(a) and (b) Family Law Rules). 

18. Kirby J in JRN and KEN v IEG and BLG (1998) 72 ALJR 1329 at 1332 in the context of making a comment about rules governing stays in the Family Court, said in that context:-

    “In my opinion, some adaptation of the rules stated in the cases governing stays in this court must also occur in cases which affect significantly third parties who are not parties before the court and, in particular, children whose welfare must always be in the mind of a court in making an order affecting their interests.”

19. As I pointed out to Counsel for the father, I have not shut the father out from raising an argument that the father should be granted leave to issue a particular subpoena.  During my management of this case, I do not wish subpoenas to be issued without the Court knowing about it and agreeing that it is an appropriate pre-trial step that goes to assisting in the determination of an issue between the parties. 

20. Accordingly relying on Rule 1.12 Family Law Rules and this court’s inherent power, I am of the view that Counsel for the father’s challenge to the order requiring the parties to seek leave to issue subpoena, is without foundation.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts

Associate: 

Date:  8.3.07

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as Allsop & Allsop.