BELROSE & BELROSE - [2020] FCCA 177

FEDERAL CIRCUIT COURT OF AUSTRALIA

BELROSE & BELROSE

[2020] FCCA 177

Catchwords:
FAMILY LAW – PRACTICE & PROCEDURE – Subpoena objection.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.2.08B, 15A.09, 15A.14
Judiciary Act 1903 (Cth), s.79
Police Act 1990 (NSW), s.170

Cases cited:

Commissioner of Police v Hughes [2009] NSWC 306
Dupont & Chief Commissioner of Police & Anor (2015) FLC 93-648
Papadopoulos & Papadopoulos (No.2) [2007] FamCA 1683
Unitingcare - Unifam Counselling & Mediation & Harkiss & Anor [2011] FamCAFC 159

Applicant:

MS BELROSE

Respondent:

MR BELROSE

File Number:

NCC 1798 of 2019

Judgment of:

Judge Terry

Hearing date:

14 November 2019

Date of Last Submission:

14 November 2019

Delivered at:

Newcastle

Delivered on:

12 February 2020

REPRESENTATION

Solicitors for the Applicant:

Catalyst Family Lawyers

The Respondent:

In Person

Counsel for the Commissioner of Police (Party under Subpoena):

Mr Coffey

Solicitors for the Commissioner of Police (Party under Subpoena) :

Makinson d'Apice Lawyers

ORDERS

Pursuant to rule 15A.14 of the Federal Circuit Court Rules 2001 the Commissioner of Police is not required to produce the documents requested in paragraphs 3(a) and 3(c) of the schedule attached to the subpoena issued on 16 September 2019.
Pursuant to rule 15A.09 of the Federal Circuit Court Rules 2001 the subpoena is set aside as to paragraph 3(d) of the schedule.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1798 of 2019

MS BELROSE

Applicant

And

MR BELROSE

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Belrose and Mr Belrose are in dispute about parenting arrangements for their children X, 6 and Y, almost 4.
On 16 September 2019 the wife’s solicitor issued a subpoena to the NSW Commissioner of Police. It contained the usual request for COPS events, criminal records and the like but the husband is a serving member of the NSW Police Force and it also sought at paragraph 3:
In relation to Mr Belrose born …1960 copies of the following:
a)Any internal disciplinary reports or complaints;
b)Any disciplinary action taken against him;
c)Any investigations of his conduct; and
d)Any reports, assessments, documents, pertaining to his employments.(sic)
On 27 September 2019 the Commissioner filed a Notice of Objection. He said that he objected to producing the documents requested in paragraph 3 for the following reasons:
Schedules 3a and 3c of the subpoena are subject to privilege pursuant to s. 170 of the Police Act 1990.
Schedule 3d of the subpoena is prima facie broad and oppressive.
The objection was listed for hearing on 22 November 2019. Counsel for the Commissioner relied on the affidavit of Ms A, a lawyer employed by the solicitors for the Commissioner of Police filed on 13 November 2019, and written submissions which he handed to the court and he made some additional oral submissions.
In his written submissions Counsel for the Commissioner referred to the grounds set out in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BELROSE & BELROSE

Details

AGLC: Belrose and Belrose [2020] FCCA 177
Case: [2020] FCCA 177
Decision Date: 12 February 2020

CaseChat Overview and Summary

In *Belrose & Belrose*, heard by Judge Terry in the Federal Circuit Court of Australia, the Commissioner of Police objected to a subpoena issued on 16 September 2019, seeking the production of certain documents. The dispute concerned the scope and validity of the subpoena in the context of family law proceedings.

The court was required to determine whether the Commissioner of Police was obliged to produce the documents requested in paragraphs 3(a) and 3(c) of the subpoena's schedule, and whether the subpoena should be set aside in relation to paragraph 3(d). These issues involved the application of the Federal Circuit Court Rules 2001 concerning the production of documents via subpoena and the grounds upon which such subpoenas may be challenged.

Judge Terry ruled that, pursuant to rule 15A.14 of the Federal Circuit Court Rules 2001, the Commissioner of Police was not required to produce the documents specified in paragraphs 3(a) and 3(c) of the schedule. Furthermore, applying rule 15A.09 of the Federal Circuit Court Rules 2001, the court ordered that the subpoena be set aside in respect of paragraph 3(d) of the schedule.

Orders

Orders of the court

Pursuant to rule 15A.14 of the Federal Circuit Court Rules 2001 the Commissioner of Police is not required to produce the documents requested in paragraphs 3(a) and 3(c) of the schedule attached to the subpoena issued on 16 September 2019.

Pursuant to rule 15A.09 of the Federal Circuit Court Rules 2001 the subpoena is set aside as to paragraph 3(d) of the schedule.

Background

Background to the litigation

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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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