Bedford & Cusack

[2008] FamCA 1243

FAMILY COURT OF AUSTRALIA

BEDFORD & CUSACK [2008] FamCA 1243

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – leave to issue subpoenas

Family Law Act 1975 (Cth), s 69ZT.

APPLICANT: Mr Bedford

RESPONDENT: Ms Cusack

INDEPENDENT CHILDREN’S LAWYER: Judith Cocks

FILE NUMBER: ADC 1688 of 2007

DATE DELIVERED: 2 December 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 2 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

In person

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Judith Cocks

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Ashley Kent

Orders

1. That by 4:00pm on 13 January 2009 the father file and serve his affidavit of evidence in chief and the affidavit of evidence in chief of Dr B.

2. That by 4:00pm on 13 January 2009 the mother file and serve her affidavit of evidence in chief and the affidavit of evidence in chief of Mr N.

3. That the father have leave to issue subpoenas to produce documents to MR, Manager Kids Helpline and Dr A, such subpoenas to be returnable before Registrar McMahon at 9:30am on 12 January 2009.

4. That pursuant to section 69ZT(3) of the Family Law Act the provisions of the I referred to in section 69ZT(1) are to apply in this case.

5. That further consideration of this case be adjourned to 9:45am on 20 January 2009.

IT IS NOTED that publication of this judgment under the pseudonym Bedford & Cusack is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1688 of 2007

MR BEDFORD

Applicant

And

MS CUSACK

Respondent

EX TEMPORE REASONS

1. This is a part-heard trial which commenced before me on 17 November 2008.  It was adjourned to today for counsel for the Independent Children's Lawyer to take some instructions from the Independent Children's Lawyer and also to allow the mother to inspect the subpoenaed documents and to consider any further witnesses that she might want to call in her case.

2. The matter has resumed today and I have further addressed, with the parties and Ms Cocks, the witnesses to be called in this case.  It is apparent that there are a number of witnesses that the father seeks to call, and he seeks leave to issue subpoenas to most of those witnesses, given they are professional persons and they have reports and/or notes which they have prepared, some of which are before this court by way of subpoenaed documents.

3. I expressed my concern that those subpoenas have not been issued before now, but that is the case.  There is time for those subpoenas to be issued, and I will make an order, appropriately, about that in a moment.

4. The father has identified the following witnesses, namely himself, Dr A, Dr E, Ms M, Dr L and Dr B.  In relation to Dr E, Ms M and Dr L, their notes and reports are contained in the file of the Women's and Children's Hospital that has been subpoenaed and is currently with this court.  There is a question about the need for those three experts to actually give evidence if their reports and notes are tendered by consent, and that is a matter that Ms Cocks and the mother will need time to consider and then will, in due course, advise the father of their position in that regard.

5. With Dr A, there is a need to issue a subpoena for him to produce his notes, and I will make that order today.  I will leave, though, until the adjourned hearing, whether there is a need for him to be called to give evidence.

6. Separate to that, the father seeks leave to issue a subpoena to the manager of the Kids Helpline.  He seeks production of the records of conversations between the child and staff of that helpline, from January 2007 to now, and I will give leave to issue that subpoena.  The father, though, will have to take his own advice about what he is to do with the documents that then come in pursuant to that subpoena, in other words whether he needs to call any witness or whether he intends to seek to present that material to the court in some other way.

7. The mother only wishes to call three witnesses, namely herself, Mr N and the principal of the school that the child H attends, Ms C. the mother will need leave to issue a subpoena to Ms C, but I will grant that leave.

8. With the Independent Children's Lawyer, the only witness, or witnesses, that will be called is either one or two persons from Families SA.  Ms Cocks needs to take instructions as to who of three persons that have been mentioned need to be called.

9. Reference has also been made to police interviews. The father has subpoenaed the records held by the police; and apparently there is a transcript of an interview or interviews and there are statements that have been taken and a DVD or video of the interview.  Unfortunately, it has been discovered that the video or DVD has not been produced by the police, and the father will be chasing that up.  The subpoena is still alive to that extent, and the father can pursue that.  Obviously, if there is any problem about that, the father will raise that with me on the adjourned hearing date, and I will deal with it.

10. Dr Q, who has prepared a report, will need to be called and available for cross-examination.  At this stage, I will not commit the court to calling her but it is likely that that is what will happen.

11. There has also been an involvement by Ms S, and Ms Cocks wishes to rely on her report or reports and to make her available for cross-examination.  I will leave open whether the Independent Children's Lawyer calls Ms S or whether the court does, just at this point.

12. I propose to have this matter back on a mention before me on 20 January, to make orders about filing of affidavits, and on that date I will briefly consider what has been filed and what has been produced by way of subpoena, then look at listing this matter for a further hearing in early February, if necessary, before we can then list it for trial, or the final stage of the trial.

I certify that the preceding 12 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 2 December 2008.

Associate