Balfour & Ferber (No 2)

Case [2024] FedCFamC1A 194

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Balfour & Ferber (No 2) [2024] FedCFamC1A 194

Appeal from: Balfour & Ferber (No 2) [2024] FedCFamC2F 1162
Appeal number: NAA 225 of 2024
File number: MLC 6089 of 2021
Judgment of: AUSTIN J
Date of judgment: 22 October 2024
Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant seeks leave to issue a subpoena for the production of documents and to adduce the documents subsequently produced as further evidence in the appeal – Where there is no utility in permitting the appellant to issue a subpoena when the documents are not seemingly related to any of the grounds of appeal – Application dismissed.  
Legislation:

Family Law Act 1975 (Cth) Pt VII, Divs 6, 13A, ss 60CA, 65AA

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.34

Cases cited:

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Hsiao v Fazarri (2020) 270 CLR 588; [2020] HCA 35

Sobey v Nicol and Davies (2007) 245 ALR 389; [2007] FCAFC 136

Number of paragraphs: 24
Date of hearing: 22 October 2024
Place: Newcastle (via Microsoft Teams)
The Appellant: Litigant in person
The Respondent: Litigant in person

ORDERS

NAA 225 of 2024
MLC 6089 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR BALFOUR

Appellant
AND:

MS FERBER

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

22 OCTOBER 2024

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 26 September 2024 is dismissed.

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).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Balfour & Feber has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

  1. These reasons deal with an application filed by the appellant in an appeal brought from orders made on 26 August 2024 by a judge of the Federal Circuit and Family Court of Australia (Division 2) dismissing his contravention application against the respondent.

  2. The appellant now seeks permission to do two things: first, issue a subpoena requiring the production of documents; and secondly, to adduce as further evidence in the appeal the documents then subsequently produced in answer to the subpoena.

    Background

  3. Final parenting orders were made between the parties in respect of their child under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) in October 2022.

  4. In May…

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Details
AGLC
Balfour & Ferber (No 2) [2024] FedCFamC1A 194
Case
[2024] FedCFamC1A 194
Decision Date

CaseChat Overview and Summary

In the case of Balfour & Ferber (No 2), the appellant, Mr Balfour, sought leave to issue a subpoena for the production of documents and to adduce those documents as further evidence in an appeal against the dismissal of a contravention application. The application was filed in the Federal Circuit and Family Court of Australia's appellate jurisdiction. The background to the appeal involved final parenting orders made between the parties concerning their child under the Family Law Act 1975 (Cth). Mr Balfour filed a contravention application against Ms Ferber in May 2024, alleging her breach of the orders on 68 occasions. The application was heard in August 2024, where Mr Balfour elected to proceed with only five counts related to a communication order. The primary judge dismissed the application, finding insufficient evidence to prove the contraventions.

The legal issues in this appeal were whether the appellant should be granted permission to issue a subpoena for the production of documents and to use those documents as further evidence in the appeal. The appellant argued that the documents, which were prison telephone call records obtained through a freedom of information application, were relevant to the appeal. However, the court needed to determine if these documents had any utility in relation to the grounds of appeal. The court's reasoning focused on the lack of relevance of the documents to the grounds of appeal, as the primary judge had already determined that the evidence provided by the appellant did not establish the contraventions in question. The court concluded that there was no utility in permitting the appellant to issue a subpoena for documents that did not relate to the grounds of appeal.

The court dismissed the application, stating that there was no utility in permitting the appellant to issue a subpoena when the documents were not seemingly related to any of the grounds of appeal. The court's decision was based on the lack of relevance of the proposed documents to the appeal's grounds. The final order was that the application in an appeal filed on 26 September 2024 was dismissed.

Orders

Orders of the court

NAA 225 of 2024

MLC 6089 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR BALFOUR

Appellant

AND:

MS FERBER

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

22 OCTOBER 2024

THE COURT ORDERS THAT:

1. The Application in an Appeal filed on 26 September 2024 is dismissed.

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).

Background

Background to the litigation

The appellant now seeks permission to do two things: first, issue a subpoena requiring the production of documents; and secondly, to adduce as further evidence in the appeal the documents then subsequently produced in answer to the subpoena.Background Final parenting orders were made between the parties in respect of their child under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) in October 2022. In May 2024, the appellant filed a contravention application against the respondent alleging her breach of the orders on 68 occasions. The application came on for hearing before the primary judge in August 2024. The appellant was self-represented at the hearing and elected to proceed with the prosecution of only five counts (Counts 35–39 inclusive). Those counts all related to Order 5(a), which provided for the child to communicate with the appellant by telephone each Monday and Thursday at 5.00 pm, alleging its breach by the respondent on five occasions between late January 2024 and late February 2024. Specifically, it was alleged the respondent failed to facilitate telephone calls between the child and the appellant without reasonable excuse. As part of the evidence adduced in support of the alleged contraventions, the appellant relied upon telephone records produced by the Victorian Department of Justice and Community Safety (“the Department”). The appellant is in custody serving a term of imprisonment and, on each of the occasions relevant to the five counts, he unsuccessfully attempted to telephone the child from prison. The prison telephone call records were given to the appellant in response to his freedom of information application, but they were in redacted form. He tendered them into evidence in that form. The primary judge did not accept the available evidence proved the respondent’s contravention of Order 5(a) in relation to each of the five counts, saying this in the reasons for judgment:13.The [appellant] submitted that the only STD phone number he calls is the [respondent’s] number……18.The [appellant] relies on data with respect to telephone call logs which shows several attempted calls between 5:00pm and 5:30pm. According to the phone call logs, those outgoing calls were not answered. The [appellant] cannot establish, based on the evidence before me, that the calls were made to the [respondent’s] phone number. Given this, the respondent has no case to answer. For these reasons, the application must be dismissed. The contravention application was therefore dismissed. The appellant appealed from the dismissal order on 3 September 2024. On 26 September 2024, the appellant filed his application seeking the relief mentioned above, supported by:(a)two affidavits he filed on 26 September 2024 and 17 October 2024; and(b)an email sent to him on 18 October 2024 by the Office of the Victorian Information Commissioner confirming an “initial view” that the new freedom of information request made by the appellant for the unredacted documents in June 2024 would be refused (Exhibit A).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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