BARNS & BARNS
[2020] FamCA 597
•22 July 2020
FAMILY COURT OF AUSTRALIA
| BARNS & BARNS | [2020] FamCA 597 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Review of registrar’s decision – Where leave is sought to issue subpoenas – Where leave is sought to provide subpoena material to a single expert. |
| Darley & Darley [2020] FamCAFC 4 |
| APPLICANT: | Mr Barns |
| RESPONDENT: | Ms Barns |
| FILE NUMBER: | MLC | 14779 | of | 2019 |
| DATE DELIVERED: | 22 July 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| IN CHAMBERS: | 22 July 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Reid |
| SOLICITOR FOR THE APPLICANT: | Lander & Rogers (Sydney) |
| SOLICITOR FOR THE RESPONDENT: | York Law Family Law Specialists |
Orders
IT IS ORDERED
That leave be granted to issue subpoenas to:
· Medicare and the Pharmaceutical Benefits Scheme
· Dr M
· Dr N
· Dr D
· F Medical Centre in relation to the mother and the subject child only.
· G Company
· Dr H of the J Clinic, Suburb K
That the solicitors for the father have leave to copy the material produced pursuant to the subpoenas referred to in Order 1 for the purpose of providing the copies to Dr L.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Barns & Barns has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: MLC 14779 of 2019
| Mr Barns |
Applicant
And
| Ms Barns |
Respondent
REASONS FOR JUDGMENT
Parenting proceedings in relation to X, aged two years, between Mr Barns (“the father”) and Ms Barns (“the mother”) are waiting for a substantive hearing.
The significant issue to be determined is whether the mother, who now lives in Sydney with X, should be required to return X to Melbourne where the father lives. The proceedings raise issues about the mother’s physical and emotional health.
A single expert, Dr L, who is a child and family psychiatrist, has been engaged to prepare a report.
The father sought leave to issue a number of subpoenas for the purpose of making the material produced available to Dr L. A registrar refused leave.
The father now seeks, by an Application in a Case, to review the decision of the registrar and the matter proceeds before me by way of hearing de novo.
Both of the parties have filed written submissions and the matter is to be dealt with in Chambers without further appearances.
The father wishes to issue subpoenas directed to:
· Medicare and the Pharmaceutical Benefits Scheme;
· Dr M;
· Dr N;
· Dr D;
· P School;
· Q School;
· F Medical Centre;
· G Company;
· R Centre; and
· S Childcare.
The parties have agreed that subpoenas can be issued to the recipients named in italics. In relation to the subpoena to F Medical Centre, there is no objection to such of the subpoena as relates to the mother and the subject child. The objection is to the portion of the subpoena that relates to the mother’s nephew.
The review is therefore in relation to the remainder of the subpoenas sought to be issued.
I note that the parties separately to this application, have agreed to the issue of a subpoena to Dr H of the J Clinic, Suburb K.
THE LAW
In Darley & Darley [2020] FamCAFC 4, Kent J, sitting as a judge of appeal, summarised the law in relation to this issue:
It is well settled by the authority that a subpoena must be issued for a genuine forensic purpose and must identify what appear to be relevant documents. In Gloucester Shire Council v Fitch Ratings, Inc [2016] FCA 587 Wigney J observed the following at [22]:
22.The law concerning subpoenas is one of those areas of law where metaphors abound. The test for whether a subpoena has a legitimate forensic purpose has been put in terms of whether the material caught by the subpoena appears to have relevance in the sense of “throw[ing] light” on at least some of the issues in the principal proceedings: Cosco Holdings Pty Ltd v Commissioner of Taxation [1997] FCA 1504; (1997) 37 ATR 432 at 439-440. It has also been said that it must be “on the cards” that the documents sought will materially assist the party at whose request the subpoena has been issued: Alister v The Queen (1984) 154 CLR 404 at 414; Tamwood Limited (ACN 010 954 499) v Habitare Developments Pty Ltd (ACN 122 935 497) [2009] FCA 364 at [13], [35]-[38]. Slightly more prosaic statements of the test include that the documents must have some “apparent” or “adjectival” relevance, or would be reasonably likely to add, in the end, in some way or another, to the relevant evidence in the case: Spencer Motors Pty Ltd v. LNC Industries Ltd [1982] 2 NSWLR 921 at 927-928 G-A; National Employers’ Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 at 385 D-F; Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 at 103; Dorajay Pty Limited v Aristocrat Leisure Limited [2005] FCA 588 at [17].
Wigney J continued at [24]:
24.A subpoena also cannot be used for the purposes of “fishing” or conducting a “fishing expedition”. A finding of “fishing” amounts to a finding that the subpoena has no legitimate forensic purpose because the documents are sought to discover if the issuing party has a case, not to support a case that has already been articulated: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575. A finding of “fishing” also appears to involve a question of oppression. A subpoena will be more readily set aside if great numbers of documents are required to be produced in circumstances where it cannot be demonstrated that they are likely to be sufficiently relevant: Dorajay at [34].
I propose to deal with each of the contested subpoenas.
P School, Q School and F Medical Centre in relation to Y.
Y is the nephew of the mother and spends time in the home where the mother lives with the maternal grandparents. He is about seven or eight years old. The maternal grandmother provides occasional care for Y when his mother is working.
The father alleges that Y poses a danger to X and that the records held by Y’s past and present schools, and his general practitioner are relevant to the father’s assertion of that risk.
In an affidavit sworn 23 December 2019, the father deposed to a number of concerns about Y’s behaviour which he observed in early 2019. The behaviours observed by the father occurred in the presence of and under the supervision of a number of responsible adult relatives who apparently did not share the father’s concerns.
The father deposed that Y was expelled from P School.
In an affidavit sworn 21 February 2020 the father deposed:
I have noticed that X has sustained many more injuries while residing in Sydney than he did while in Melbourne. These include bruising and grazing on his legs, scratches to his abdomen and bite marks on his fingers (the look [sic] to be inflicted by another child). …I am concerned that X is being injured by his cousin…
The father’s concerns about the occasional presence of Y in the mother’s home are not central to the issues to be determined.
I am not satisfied, on the father’s evidence that it is “on the cards” that the information he seeks in relation to Y will materially assist his case.
Leave will not be granted in relation to subpoenas relating to Y.
S Company and the T Program
The father asserts that prescription medication taken by the mother has side effects which might affect her parenting capacity.
The mother does not assert that the information is not relevant, but rather that it can be ascertained from the records of the prescribing doctors.
This is not a valid objection.
Leave will be granted in relation to the subpoena.
G Company
The father seeks the recording of a 000 call made by him on 29 September 2019 when he says he was subjected to family violence by the mother. The mother denies that the incident occurred as alleged.
The mother’s objection appears to be to the effect that he has not issued a subpoena to the police or to his own general practitioner in relation to injuries suffered.
Neither objection is valid.
The information is relevant to a fact in issue.
Leave will be granted to issue the subpoena.
R Centre
This is an organisation that employed the mother for a short period in about 2016 before the parties married.
The relationship between the mother and her former employers has no apparent relevance to the issues in the proceedings.
Leave will not be granted.
S Childcare
This is the childcare centre which X attends.
The submissions on behalf of the father assert that the mother formerly worked at the centre. That appears to be disputed. There is no evidence to support the assertion, if that is, in fact the basis on which it is sought to issue the subpoena.
If that is the basis then the relationship between the mother and her former employers has no apparent relevance to the issues in the proceedings.
Leave will not be granted.
Providing copies of material produced to Dr L
The father seeks an order permitting him to copy the material produced so that it can be provided to Dr L.
No submissions are addressed by the mother to this issue.
Prima facie, the material is relevant to the matters which Dr L will consider.
The material can be copied and provided to Dr L at the father’s expense.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 22 July 2020.
Associate:
Date: 22/07/2020
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