Beckert & Beckert
[2018] FCCA 3847
•21 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BECKERT & BECKERT | [2018] FCCA 3847 |
| Catchwords: FAMILY LAW – Practice and procedure – subpoena and objection to production on grounds of relevance – production of documents by third party – inspection sought of police records – applicable principles – prerequisites to production – whether legitimate forensic purpose in seeking inspection – whether reasonable possibility documents will materially assist applicant’s case – assessment of importance of documents to issue in proceeding – right of objection to production is held by owner of documents – whether party to proceeding has basis to object to inspection or copying of documents – rules of court permit inspection and restrict copying of certain documents – whether documents of apparent relevance – documents said to be irrelevant and prejudicial – parties’ rights to object on basis of relevance or admissibility are matters for trial – objection to subpoena dismissed. |
| Legislation: Evidence Act 1995 (Cth), ss.135, 136 Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CG, 61C, 65DAA Federal Circuit Court Rules 2001 (Cth), rr 1.06B, 15A.01, 15A.09, 15A.13, 15A.14, 15A17 |
| Cases cited: Other texts cited: |
| Applicant: | MS BECKERT |
| Respondent: | MR BECKERT |
| File Number: | MLC 13463 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 18 December 2018 |
| Date of Last Submission: | 18 December 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 21 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Nehmy |
| Solicitors for the Applicant: | Sayer Jones Pty Ltd |
| The Respondent: | In person |
| Independent Children’s Lawyer: | No appearance |
ORDERS
The respondent’s notice of objection to the production of documents upon the subpoena filed on 29 November 2018 and addressed to Victoria Police (subpoena) is dismissed.
Subject to paragraph (3) of this Order, pursuant to rule 15A.13(2)(a) of the Federal Circuit Court Rules 2001 (Cth), the parties may inspect the documents produced by Victoria Police pursuant to the subpoena.
Until further order, the documents produced by Victoria Police pursuant to the subpoena may be inspected only by the parties’ legal representatives (including the respondent) and shall be kept confidential and not disclosed to any other person.
The costs of this application are reserved.
IT IS NOTED that publication of this judgment under the pseudonym Beckert & Beckert is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 13463 of 2017
| MS BECKERT |
Applicants
And
| MR BECKERT |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain my conclusion why the respondent’s objection to a subpoena should be dismissed.
In substance, I am satisfied that the classes of documents, the production of which is sought by the applicant’s subpoena to Victoria Police, are likely to be of direct relevance to the parenting issues raised in this proceeding. I do not accept the grounds for objection – namely, that the range of documents sought is too broad or that they are likely to have no probative value or relevance. Although his objection was misconceived, the respondent’s right to object to the tender of a particular document is a matter that remains to be determined at trial.
I have determined that until further order, the documents produced by Victoria Police pursuant to the subpoena may be inspected only by the parties’ legal representatives (including the respondent) and shall be kept confidential and not disclosed to any other person.
Background
The wife commenced the proceeding by an initiating application filed on 20 December 2017. In the 12 months which has passed since that date, orders have been made by the court on eight occasions.
The parties were married on …2007 and finally separated on 6 April 2017. There are three children of their relationship. According to the documents filed by each of the parties, the two eldest children were born on 14 December 2013 and the third child was born a week later on 22 December 2013.
The wife is aged 43 years and is a qualified medical professional. She has migrated to Australia from Country A and is an Australian citizen.
The respondent is aged 45 years and is a professional.
A significant issue in the case since its inception has been and remains whether the respondent abuses alcohol.
By her initiating application, the wife has applied for an adjustment of property interests, spousal maintenance and child support.
By his response, the husband sought orders for equal shared parenting responsibility and an array of orders for spend-time arrangements in relation to the children. Amongst the procedural orders sought by the respondent were orders for the provision of documents relating to “the husband’s DNA testing regarding his parentage of the children.” Orders were also sought for the sale of a series of properties.
On 26 February 2018, the proceeding was set down for hearing on all issues on 27 May 2019.
On 20 April 2018, an order was made for the appointment of an Independent Children’s Lawyer.
On 3 September 2018, an order was made that the children live with the applicant. Orders were also made by consent for the respondent to submit to alcohol testing at the commencement and conclusion of the children’s spend-time with him. An order for the obtaining of a family report was also made.
Further orders were made on 5 September, 13 September and again on 18 October 2018. In the intervening period, on 3 October 2018, the respondent filed an application in a case concerning the making of medical appointments for the children and their enrolment in a school.
On 18 October 2018, orders were made by consent for the children’s enrolment and the dismissal of the respondent’s application in a case.
On 29 November 2018, the applicant filed a subpoena addressed to the proper officer, Victoria Police, seeking production of documents held relating to the respondent for the period 1 April 2017 to date as follows:
a. All station records.
b. All LEAP records.[1]
c. Records of all callouts, attendances and incident reports;
d. Any pending or past charges;
[1]LEAP is the acronym for a database retained by Victoria Police called the Law Enforcement Assistance Program.
e. Any other documents files, records, reports and briefs of evidence.
In its terms the subpoena sought production of the specified documents by 4:30pm on 10 December 2018. This subpoena was in near identical terms to a subpoena issued by the Independent Children’s Lawyer (and to which the respondent had filed a Notice of Objection).
Victoria Police has obeyed the subpoena and the documents are held in the Registry of the court.
Later on 29 November 2018, the respondent filed a Notice of Objection to the subpoena. The respondent objected to the production of the documents on the following stated bases:
1. Too broad; and
2. Insofar as any material relates to a matter determined by another Court, or is pending, it has no probative value or evidential relevance in this Court.
By his Notice, the respondent also objected to the inspection and copying of those documents.
The Notice of Objection was returnable in a Duty List on 18 December 2018. The applicant was represented by Mr Nehmy of counsel while the respondent appeared in person. There was no appearance by or on behalf of the Independent Children’s Lawyer.
Applicable principles
Part 15A of the Federal Circuit Court Rules 2001, which concerns the subject Subpoenas and Notices to Produce, is arranged in three divisions and comprises rr 15A.01 – 15A.17. Relevantly, r 15A13 confers a qualified right to inspect a document that is produced in obedience to a subpoena.
Where no objection is taken to a subpoena pursuant to r 15A.14, each party and any Independent Children’s Lawyer may inspect, and take copies of, subpoenaed documents other than a child welfare record, criminal record, medical record or police record: r 15A.13(2).
Rule 15A.14 regulates the procedure respecting the making of an objection to the production, inspection or copying of a document that is produced on subpoena. A person who objects to the inspection or copying of documents produced by the subpoenaed party must notify the Registrar and the issuing party in writing of the objection and the grounds for the objection: r 15A.14(1). A subpoena that is the subject of objection must be referred to the court or a registrar for the hearing and determination of the objection: r 15A.14(4).
National Employers Mutual General Insurance Association v Waind & Hill [1978] 1 NSWLR 372 is a seminal decision respecting subpoenas. The NSW Court of Appeal described the three stage process by which a subpoena is addressed: (1) the command of the subpoena to the witness to bring the documents to court; (2) the decision as to the preliminary use of the documents, including access for inspection; (3) the use of the documents at trial.
The leading judgment in Waind was by Moffitt P, with whom Hutley and Glass JJA agreed. An appeal to the High Court was dismissed: (1979) 141 CLR 648. It is useful to identify the principles stated in Waind and some of the authorities which have considered that decision.
Production
As to the first stage, the Court of Appeal held at 384C-D, that where a subpoena was properly issued and not set aside, the documents were then and there in the control of the court. Moffitt P observed that the court was invested with jurisdiction to take all steps necessary for the proper trial of the issues, subject to the due observance of any relevant procedures. The President stated:
So far as the factual matters are concerned, the proper conduct of the litigation can only be that which fairly leads to the issues being tried, and the testing of evidence by the accepted procedures of the court. The only legitimate purpose of requiring the production, and permitting the inspection, of a stranger’s documents can be to add, in the end, to the relevant evidence in the case.
Production of documents will not be required unless it can be demonstrated that the inspection of the documents serves a legitimate forensic purpose in the case: Dupont & Chief Commissioner of Police [2015] FamCAFC 64, [13], citing Alister v R (1984) 154 CLR 404. In Alister, Gibbs CJ considered the distinct approaches that were taken in resolving an objection to production (on the grounds of public interest immunity) in civil and criminal proceedings. The Chief Justice appeared to accept that in civil proceedings the documents should appear likely to support the case of the person seeking inspection and that in criminal proceedings it may be enough if it appears to be ‘on the cards’ that the documents would materially assist the defence. Later in Ragg v Magistrates Court of Victoria (2008) 18 VR 300, [92], Bell J observed that the use of the metaphor ‘on the cards’ had outlived its usefulness, regarding it as clear that the test was not one of probability. While those decisions also involved questions of public interest immunity, they are nonetheless instructive.
In the consideration of what is a legitimate forensic purpose, it has been held that the party calling on the subpoena must demonstrate a reasonable possibility the documents will materially assist his or her case: Dupont, supra, [13] citing Ragg v Magistrates Court of Victoria (2008) 18 VR 300, [86]. There Bell J held that in a criminal proceeding:
A party to whom such a summons is issued may object to its validity on the ground that it “is oppressive... or that there is no legitimate forensic purpose revealed” by its terms. The defence must have a proper basis for seeking production of documents, and cannot issue a summons for the abstract purpose of seeing whether or not they exist or may be useful.
His Honour cited R v Saleam(1989) 16 NSWLR 14, 19-20; Sobh v Police Force of Victoria(1993) 65 A Crim R 466, 473; Clarkson v DPP[1990] VR 745, 759 as authority for that proposition.
When the issue of legitimate forensic purpose is being addressed, it is also necessary to consider the importance of the document in question in the determination of that issue having regard to the circumstances of the case as a whole: Dupont, supra, [13]. It is also open, as a matter of discretion, to examine and consider the content of the documents when assessing the question of legitimate forensic purpose. There is some authority that once a legitimate forensic purpose is demonstrated, access should not be denied because, following inspection by the court, the view is formed that the documents will not assist the applicant’s case: Carter, Subpoena Law and Practice in Australia, (1996) (Carter) at p.74 citing R v Saleam (1989) 16 NSWLR 14.
However, of fundamental importance to the first stage of the subpoena procedure – production – is that the right to object to production is held by the stranger to the proceeding whose documents are in issue. It is not presently relevant to consider the principles of privilege or confidentiality which may apply so as to constrain the inspection of documents that are produced to the court in obedience to the subpoena.
Preliminary use & inspection
As to the second stage of the subpoena procedure, Moffitt P held at 385B-C that the established practice was, even against objection, to exercise a discretion to allow inspection of documents “which appear to be relevant to the issues, whether or not in admissible form”. The President had considered earlier authority, observing that the limitation on inspection might be regulated, arbitrarily, by a rule of court: 384G.
Since Waind, the right of inspection is now regulated by the Rules. In particular, r 15A.13 regulates the right of inspection. No issue was taken whether the applicant had complied with r 15A.13. However, as noted above, r 15A.13(3)(b) proscribes the copying of certain records, including criminal records, and police records. This proscription may be read subject to r 1.06 which confers power to dispense with the rules of court, in which case an order of the court will prevail: r 1.06(b).
Further, at the second stage of addressing a subpoena, the court will guard against the unnecessary invasion of the rights of a third party. In Waind, Moffitt P stated that where objection was raised by the owner of a document, the court may examine the documents:
. . . to determine whether the documents appear relevant in the sense that they relate to the subject matter of the proceedings, in which event the court will permit inspection by one or both of the parties at an appropriate time.
However, the Court of Appeal further held that the question of admissibility did not arise at that stage of the procedure and that, if of apparent relevance, the objections of a stranger could not prevent the later admission of the documents into evidence. Moffitt P stated:
The ultimate question of whether they are ruled to be relevant and/or admissible is left to the third stage of receiving evidence.
And later:
The discretion is one concerning the invasion by the subpoena procedure of the rights of a stranger. . . No right of the opposing party is involved in making an order permitting the inspection of a stranger’s documents. . . His right is to have only admissible evidence adduced. The exercise of the discretion does not involve the determination of an issue between the parties as to the relevance or admissibility of the document. (emphasis added)
The Court of Appeal accepted that the opposing party may be invited to comment so as to assist in the determination whether the elucidation of the truth would be best served by delaying inspection.
Recognising that the interests of a party might also intrude at the second stage, Moffitt P entertained no doubt that procedures might be employed to contain inspection at that stage, stating at 385F:
. . ., the limitation on the exercise of the judge’s discretion to allow inspection is that the document contains information of apparent relevance to the issues. Once the judge has that opinion, inspection will normally be allowed, notwithstanding that the document is not admissible . . . (emphasis added)
The Court of Appeal considered the practice to be observed at the second stage of the procedure was a matter of wide judicial discretion.
In Wong v Sklavos (2014) 319 ALR 378, [12], Jacobsen, White and Gleeson JJ stated of the test of apparent relevance:
Although the parties referred to several authorities concerning the requirement for subpoenaed documents to have apparent relevance to an issue in a proceeding, in our opinion, the applicable principles are well established. The party issuing a subpoena bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings: Santos Ltd v Pipelines Authority of South Australia (1996) 66 SASR 38 at 52. A subpoena may be set aside if it requires the production of documents which do not have apparent relevance to the issues arising on the pleadings: Trade Practice Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90; Campaign Master (UK) Ltd v Forty Two International Pty Ltd(No 4) [2010] FCA 398; (2010) 269 ALR 76 at [39]-[40]; McHugh v Australian Jockey Club Limited[No 2] [2011] FCA 724 at [13]; McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233; (2005) 221 ALR 785 at [35]; Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 558 at [17]. Other cases have used different terminology, but with essentially the same effect, for example, by requiring that, viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative (R v Barton (1981) 2 NSWLR 414 at 420), or that the material sought is reasonably likely to add in some way to the relevant evidence in the case (Spencer Motors Pty Ltd v LNC Industries Ltd (1982) 2 NSWLR 921 at 927), or that it be “on the cards” that the documents sought will materially assist the party at whose request the subpoena has been issued: Allister v The Queen (1984) 154 CLR 404 at 414; Tamawood Ltd v Habitare Developments Pty Ltd [2009] FCA 364 at [13], [35]-[38]. (emphasis added)
In Dupont & Chief Commissioner of Police [2015] FamCAFC 64, [40], the Full Court, cited Waind as authority for the principle that:
The second step is the decision concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents produced to the court and under its control. In this regard, the crucial question is whether the documents have apparent relevance to the matters in issue or are themselves the subject matter of the litigation. Notwithstanding that the documents may not at that stage be admissible, if they are apparently relevant then inspection will ordinarily be ordered. (emphasis added)
Again, the touchstone of production and inspection pursuant the first and second stages of the subpoena procedure is whether the documents are of apparent relevance to the issues for trial.
Use of the documents at trial
As to the third stage, Waind holds that the final ruling on relevance and admissibility is to be addressed at trial. Importantly, the discussion in Waind makes clear that all such issues remain live for the parties to ventilate at trial. An order permitting inspection does not negate a party’s right to object at trial on grounds of relevance or admissibility.
This conclusion is of significance for at least four reasons. First, it serves to underline that the second stage of the subpoena procedure is not concerned with any final determination as to relevance of any document. Secondly, at that second stage of the procedure, the court is concerned only to determine the apparent relevance of the documents which have been produced. Thirdly, the parties’ right to object to a document being tendered in evidence on the ground of relevance is a right available to be exercised at trial. Finally, the parties’ right to object to the tender on the ground of admissibility is also a matter for trial and not an issue for consideration at the second stage of the subpoena process.
It follows that it remains open to parties to object to the tender of a document, including by reason that its contents are seen to be unfairly prejudicial. If that is established the court may exclude or limit the use that is to be made of the document in question: ss 135-136 Evidence Act 1995 (Cth). This is so notwithstanding that inspection was permitted in the second stage of the procedure. The two processes – inspection upon subpoena and objection at trial – are distinct.
Overview
The principles stated in Waind have been endorsed repeatedly: see, eg Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (1987) 14 FCR 461; Trade Practices Commission v Arnotts Ltd (No.2) (1989) 21 FCR 306; White & Tulloch & White [1995] FamCA 127, [45]; Read & Chang and Anor [2010] FamCA 876; [2010] FLC 93-450; Wong v Sklavos (2014) 319 ALR 378, [32]; Rawson Finances Pty Ltd v Commissioner of Taxation [2016] FCAFC 95, [49]. It is of some assistance to consider some recent authority in the Family Court.
In Hatton v Attorney-General of Commonwealth of Australia (2000) FLC 93-038, [42]-[47] the Full Court examined the authorities in detail. Finn, Kay and Dessau JJ held that different concepts of relevance were to be applied at the production stage in the subpoena process, recognising that at this stage, the production of a document by a stranger was only required if the document was sufficiently relevant in the sense that it was likely to add, in the end, in some way or other to the relevant evidence of the case: [46]. This reasoning echoes the analysis in Waind, reflects the principle that the document must be of apparent relevance to the issues at trial and underscores the need for an applicant to demonstrate a legitimate forensic purpose in seeking the documents the subject the subpoena.
In Kelton & Brady [2017] FamCAFC 186, at [50]-[55], the Full Court endorsed the approach to be taken at the second stage of the subpoena process that:
The exercise of the discretion does not involve the determination of an issue between the parties as to the relevance or admissibility of the document.
Their Honour’s holding confirms that the determination of relevance and admissibility for the purposes of trial are not to be addressed at the second stage of the subpoena process. At that second stage, the applicant need only demonstrate a legitimate forensic purpose and that the documents are of apparent relevance to the issues at trial.
Again, in Malloy & Stopford Malloy Pty Ltd [2017] FamCAFC 205, Strickland and Murphy JJ, with whom Thackray J agreed, held at [34] that it had been no part of the primary judge’s function at the interlocutory stage to determine whether the documents sought would be admissible. Their Honours stated that the relevant task at that stage had been to consider whether the party who had issued the subpoena had a legitimate forensic purpose in seeking the production of the documents. Their Honours stated:
. . . and that is usually established by demonstrating that they have an apparent relevance to the issues in the substantive proceedings.
The repeated reference to the apparent relevance of the documents underscores that the assessment of relevance at the second stage of the subpoena procedure is distinct and less onerous from that which will be applied at trial where an objection to relevance is made.
Consideration
Contextually, the documents produced by Victoria Police are the documents of a stranger. They are not documents of either party. On the face of the subpoena, the documents relate to the respondent.
A subpoenaed party may apply to set aside a subpoena: r 15A.09. No objection was raised by Victoria Police to the production of the documents. As Victoria Police was afforded an opportunity to object, the question of inspection is not now premature: cf Waind, 386C-D. As Victoria Police has not objected, but acted in obedience to the subpoena, the documents have passed through the first stage of the subpoena procedure and are now in the control of the court.
Moreover, had the subpoenaed party, Victoria Police, raised objection pursuant to r 15A.14(1), it would have been for the applicant to demonstrate a legitimate forensic purpose in seeking production of the documents the subject of that subpoena. The court would have been entitled, and perhaps obliged, to inspect the documents for this purpose.
At common law, the respondent had no standing to object to inspection of documents by an opponent: Waind, 385B; Carter, at p.71. However, as the Court of Appeal recognised in Waind, the rules of court may provide rights regulating subpoenaed documents. The Federal Circuit Court Rules 2001 (Cth) now provide both a right to subpoena, and a right to object to the production, inspection or copying of such documents.
The respondent’s Notice of Objection was cast in terms by which he objected “to the production of some or all of the documents to the Court.” Upon the principles considered above, I consider that this objection was not available to the respondent. Victoria Police, as the subpoenaed party, had, but did not exercise, the right to object to production. The documents were produced without objection. Once the documents were in the control of the court, the question was whether inspection might be allowed and, if so, when and on what terms (if any).
While it might have been a matter for Victoria Police to raise, the respondent did not submit that the applicant did not have a legitimate forensic purpose in seeking the documents the subject of the subpoena.
It was not submitted that the subpoena was an abuse of process or that compliance with it was for any reason oppressive. The present case does not entail a question whether the production of documents in answer to the subpoena would be oppressive to the subpoenaed party.
No question of confidentiality or privilege arose. There is accordingly no need to address the applicable principles which regulate any right of inspection by reason of any privilege or confidentiality which inhered in the documents: cf Trade Practices Commission v Sterling (1979) 36 FLR 244, 246-7; Wong v Sklavos (2014) 319 ALR 378, [30]-[34].
In answer to my enquiry, the respondent eschewed any objection on the basis that the period covered by the subpoena was too broad.
The objection was confined in terms to the relevance of the documents. The respondent said, in substance, that the fact of his convictions, if any, was the only relevant fact and that other documents which may be held by Victorian Police respecting complaints which had been received, had not been relied upon in any proceedings and were high prejudicial and contained highly pejorative information which was of no relevance to the issues in this proceeding.
I do not accept that the fact of the respondent’s convictions, if any, affords an answer at the second stage of the subpoena procedure to a party’s entitlement to inspect documents produced by Victoria Police which, as I find, are apparently relevant to the issues arising in this proceeding.
In my opinion, for the reasons below, the question of apparent relevance, considered upon the principles stated above is answered affirmatively in favour of the applicant.
I am also satisfied, that the applicant has demonstrated a reasonable possibility that the documents the subject of the subpoena would materially assist her case and that those documents may be of real importance to the issues which are presented by this case.
The paramount interests of the parties’ three young children are at issue. The allegations in this case involve a high level of acrimony and of incessant communication between the parties of a kind which has apparently been sufficient to attract a level of police intervention. On the applicant’s case, the respondent has been convicted of the breach of intervention orders, including a conviction for a persistent breach of an intervention order. There is, additionally, the question of a conviction for drink-driving. These are matters which, if established, would bear directly upon the issues of parental responsibility, risk and the children’s spend-time with the respondent: see ss 60B(1), 60CA, 60CC, 60CG, 61C(1), 65DAA(1), Family Law Act 1975 (Cth). I am of the opinion, and accept the submissions of Mr Nehmy for the applicant, that the documents are of sufficient, demonstrable and apparent relevance to the questions of parental responsibility, risk and the time which the children may spend with the respondent.
Of course I cannot and do not express any view as to the veracity of those allegations at this stage. They are matters for investigation at trial. However, to adapt the language of Treyvaud J in In the Marriage of J & J (1988) FLC 91-940; (1988) 12 FamLR 836, the rules of court permit a party to issue a subpoena to enable documents – and therefore information – to be obtained of which the trial judge might be appraised in order that the discretionary power to determine what is in the best interests of the children may be considered and exercised.
For the avoidance of doubt, the respondent submitted that I should not examine the documents having regard to what he described as their highly prejudicial and pejorative content. Although I have rejected the respondent’s submission that issues of prejudice and pejorative content were relevant objections to inspection at the second stage of the subpoena process, I have concluded in the circumstances that I should accede to his submission not to examine the subpoenaed documents. I have done so in part because I am satisfied that the documents sought pursuant to the subpoena are of a kind which meet the threshold for apparent relevance at the second stage of the procedure. The respondent’s submission that I should not examine the documents was somewhat at odds with the stated objection “to the production of some or all of the documents to the Court” and I will assume that the respondent may wish to object to the tender of particular documents.
As established in Waind, the discretion to withhold inspection is one which entails the protection of the rights of a stranger. The rights of parties to the proceeding are, contrastingly, to contest the admission of evidence at trial. However, the stage at which inspection might be permitted may also be a relevant consideration. Consideration may be given to whether the truth upon an issue, which is to be ascertained in the interests of justice, might be best served by delaying inspection in the circumstances of a particular case. I have considered this issue and concluded that it is in the interests of justice not to withhold inspection of the document until trial or further order. The proceeding is set down for trial on all issues. The paramount interests of the children are under consideration. A family report has been ordered. Information which could bear directly upon the opinions of the family report writer may be contained in those documents. The opinions expressed in the report may change upon the information in the documents being considered. Whether or not is its appropriate for that report writer to see the documents before trial is a matter which has not been addressed at this stage. It would undermine principles of case management to withhold the documents from inspection until a trial was held.
In my opinion, the objection made by the respondent misconceived the nature of the inquiry which was to be undertaken at this stage. Should the applicant or Independent Children’s Lawyer seek to tender any document in evidence at trial, it is at this third stage of the subpoena process that a question of relevance and admissibility will arise. So too, should the respondent seek to maintain that the content of a particular document is highly prejudicial or pejorative in content, those objections will fall to be addressed in accordance with the principles applicable under ss 135-136 of the Evidence Act 1995 (Cth). Should the information contained in any of the documents be unfairly prejudicial to a party, it may be excluded from the evidence or the use to be made of it may be limited. Thus, the respondent’s objections on these bases are at this stage, premature. Viewed from this perspective, the respondent suffers no prejudice from inspection being permitted.
These conclusions notwithstanding, it is clear that by operation of the rules, the applicant, the respondent and the Independent Children’s Lawyer may not copy the documents at this stage: r 15A.13(2)(b). It will be a matter for the parties to assess whether in terms of case management, it is appropriate to apply for leave to copy the documents in advance of the trial and whether any such documents should, in the consideration of the children’s best interests, be provided to the family report writer.
I am persuaded upon the exercise of discretion that it is also appropriate to make an order, until further order, that the documents may only be inspected by the parties’ legal representatives (which in the respondent’s case is the respondent), and are to be kept confidential and may not be disclosed until further order: Carter, at pp.73, 75 citing Kimberley Mineral Holdings Ltd (In Liq’n v McEwan) [1980] 1 NSWLR 210; see also Wong v Sklavos [2014] 319 ALR 378, [30]-[34]. Counsel for the applicant accepted that an order restricting inspection and protecting disclosure was appropriate at this stage.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge A. Kelly
Date: 21 December 2018
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