BELROSE & BELROSE
[2020] FCCA 177
•12 February 2020
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 |
| Cases cited: Commissioner of Police v Hughes [2009] NSWC 306 |
| 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 Notice of Objection but also argued that the documents sought at 3(a) and 3(c) were not relevant and that the request for those documents served no legitimate forensic purpose.
The wife’s solicitor submitted that the objections should be dismissed but toward the end of submissions prevaricated about whether he would press this argument. He did not however concede that the objections had merit and I indicated that I considered that I had no option but to deliver a decision.
The husband supported the Commissioner’s objection to producing the documents sought at 3(a) and 3(c) although in an affidavit filed on 13 November 2019 he disclosed four complaints which had been made against him and gave evidence about their outcomes and also gave evidence about his understanding of what had happened in respect of a complaint made against him by the wife after the parties separated. He did not specifically address the issue of the whether the request at 3(d) was broad and oppressive.
Background
The husband and wife commenced living together in 2004, married in 2008 and separated on 31 December 2014. At the time of separation they had one child, X, born on … 2013. The wife was pregnant and gave birth to Y on … 2015.
The wife is a public servant by occupation. The husband joined the NSW Police Force in 2007.
For most of the post-separation period the children lived with the wife and spent time with the husband. It is clear from the affidavits of both parties that they found reaching agreement about the father’s time with the children painful and difficult.
At some point, and it looks as if it was in January 2019 although it is hard to discern the exact date from the parties’ affidavits, the parties agreed that the children would live in a 50/50 arrangement.
On 14 June 2019 the wife filed an application for parenting orders. She proposed that she have sole parental responsibility and that the children live with her and spend time with the husband each alternate weekend from Friday to Monday and upon Y commencing primary school for half of the school holidays.
The wife alleged that the husband had subjected her to coercive, controlling and abusive behaviour during and after the relationship and had coerced her into agreeing to a week about shared care arrangement. She said that this was not working for either child and in particular for Y who was not yet four.
The husband filed a response in which he proposed that the parties have equal shared parental responsibility and that the children live in the week about arrangement. He said that the wife was erratic and controlling and had mental health issues. He denied that he had coerced the wife into agreeing to equal time or that the children were struggling with it. He maintained that the wife was motivated by monetary issues in seeking to reduce his time with the children.
The husband has suffered ill-health in recent years and is currently on workers compensation as a result of being diagnosed with Post-Traumatic Stress Disorder. He said that his health issues did not impact on his capacity to care for the children.
The wife’s application was given a first return date of 23 July 2019 and after discussions that day the parties agreed to obtain a Chapter 15 expert’s report as the next step in the proceedings.
Orders were made accordingly and shortly afterwards the wife’s solicitor issued 11 subpoenas including one to NSW Police.
The Commissioner produced some documents in answer to the subpoena but also lodged the Notice of Objection. Correspondence between the Commissioner and the wife’s solicitor did not resolve the matter and the objection was listed for hearing.
The objection based on s. 170 of the Police Act 1990 (NSW)
The first complaint made by the Commissioner in the Notice of Objection was that the documents requested in paragraphs 3(a) and 3(c) were the subject of statutory privilege because of s. 170 of the Police Act.
S. 170 is contained in Part 8A of the Police Act which deals with complaints about the conduct of Police Officers, Administrative Employees and the NSW Police Force and it provides as follows:
(1)A document brought into existence for the purposes of this Part is not admissible in evidence in any proceedings other than proceedings:
(a) that concern the conduct of police officers, and
(b) that are dealt with by the Commissioner, by the Industrial Relations Commission or by the Supreme Court in the exercise of its jurisdiction to review administrative action.
(2)Subsection (1) does not apply to or in respect of:
(a) a document comprising a complaint, or
(b) a document published by order of, or under the authority of, the Presiding Officer of a House of Parliament or either House, or both Houses, of Parliament, or
(c) a document that a witness is willing to produce.
(3)Subsections (1) and (2) do not operate to render admissible in evidence in any proceedings any document that would not have been so admissible if this section had not been enacted.
Counsel for the Commissioner submitted that by virtue of s. 79(1) of the Judiciary Act 1903 Cth, s. 170 (1) operated as a surrogate law of the Commonwealth and was binding of this court. S.79(1) provides as follows:
The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.
Counsel for the Commissioner submitted that there was nothing in the Constitution and no law of the Commonwealth which rendered the law contained in s. 170 of the Police Act inconsistent. The wife’s solicitor did not dispute this and I am satisfied that s. 170 of the Police Act is binding on this court and that the documents sought at 3(a) and 3(c) are the subject of statutory privilege.
S. 170 deals with the admissibility of documents and does not on its face allow the Commissioner to refuse to produce the documents for inspection. However Counsel for the Commissioner submitted that production should not be required. He referred me to Commissioner of Police v Hughes[1] a NSW Court of Appeal decision in which it was observed that given that s.170(1) of the Police Act made a document inadmissible at a hearing, it was the subject of a statutory privilege which was a complete answer to its production. That pronouncement was based on a particular provision in NSW legislation but in her affidavit filed on 13 November 2019 Ms A asserted that the same effect was achieved by r.2.08B (1) (a) of the Federal Circuit Court Rules.
[1] Commissioner of Police v Hughes [2009] NSWC 306
R.2.08B provides as follows:
(1) A party may inspect any document in a general federal law proceeding except:
(a)a document for which a claim of privilege has been made:
(i)but not decided by the Court; or
(ii)that the Court has decided is privileged; or
(b)a document that the Court or a Registrar has ordered be confidential.
This rule does not assist the Commissioner because it only applies to general federal law proceedings. However the issue of whether documents which cannot be admitted into evidence must nevertheless be produced for inspection has been discussed in the context of subpoenas issued in family law proceedings.
In Unitingcare - Unifam Counselling & Mediation & Harkiss & Anor[2] Justice Coleman sitting as the Full Court was dealing with an appeal against a decision by a Federal Magistrate who had dismissed an objection by Unifam to producing certain records on the basis that s. 10D of the Family Law Act provided that a family counsellor must not disclose a communication made to the counsellor while the counsellor was conducting family counselling unless the disclosure was required or authorised by this section.
[2] Unitingcare - Unifam Counselling & Mediation & Harkiss & Anor [2011] FamCAFC 159
S. 10E(1) of the Family Law Act goes on to provide that:
Evidence of anything said, or any admission made, by or in the company of:
(a)a family counsellor conducting family counselling; or
(b)a person (the professional) to whom a family counsellor refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person;
is not admissible:
(c)in any court (whether or not exercising federal jurisdiction); or
(d)in any proceedings before a person authorised to hear evidence (whether the person is authorised by a law of the Commonwealth, a State or a Territory, or by the consent of the parties).
One of the submissions made on Unifam’s behalf was that as a record of a communication made to a family counsellor could not be admitted into evidence, requiring Unifam to produce it in response to a subpoena for production constituted an abuse of the Court’s processes.
In considering this issue Justice Coleman referred to Relationships Australia v Pasternak, Pasternak & the Children’s Representative[3] (1996) FLC 92-699 in which the Full Court said inter alia:
It would be a curious result, in my view, if a party to proceedings in this Court could be required to produce for inspection by the other party or parties during pre-trial procedures, or indeed, in a court a confidential document prepared, for example, for the dominant, but not the sole purpose of a lawyer providing legal advice to that party, notwithstanding that at trial that party could successfully object on the ground of client legal privilege to any evidence being adduced which would result in the disclosure of the contents of the document. That is, logic at least would seem to suggest that the ambit of client legal privilege should be constant throughout the litigation process.
[3]Relationships Australia v Pasternak, Pasternak & the Children’s Representative (1996) FLC 92-699 at 62
Justice Coleman said as follows:
Whilst her Honour's views therein expressed (that logic suggests that the ambit of client legal privilege should be constant throughout the litigation process) is strictly obiter, so far as the point under consideration here is concerned, we nevertheless find it quite persuasive. Moreover, the ratio of her Honour's decision contained in the final sentence of the passage quoted above is particularly relevant to the circumstances of this case where what is sought by a party is the production for inspection by a non-party of that non-party's private, confidential records.
The views expressed in Relationships Australia & Pasternak, Pasternak & the Children’s Representative and the views expressed by Justice Coleman are persuasive and I accept the submission by Counsel for the Commissioner that the Commissioner should not be required to produce documents for inspection which are the subject of statutory privilege as a result of s. 170 of the Police Act NSW.
I intend to make an order relieving the Commissioner of the obligation to produce documents which fall within 3(a) and 3(c) of the subpoena.
The objection based on lack of legitimate forensic purpose as it applies to 3(a) and 3(c)
This ground of objection was not referred to in the Notice of Objection filed on 26 September 2019 but after the Notice of Objection was filed the solicitors for the Commissioner wrote to the wife’s solicitor advising him that they intended to object to production of the documents sought at paragraphs 3(a) and (c) because it represented a fishing expedition and it was necessary for the wife to specify the legitimate forensic purpose of the request.
The wife’s solicitor rejected the suggestion that he had any obligation to demonstrate relevance or legitimate forensic purpose. However he went on to say in effect (and this is consistent with material in the wife’s affidavit) that it was the wife’s case that the husband was a perpetrator of serious family violence, that complaints had been made to his commanding officers about his behaviour as a police officer and that he had abused his position to perpetrate family violence on the wife.
He submitted that the issue of whether complaints had been made about the husband went to the core of the parenting issues before the court and were relevant as to whether he was a fit and proper person to spend time with and communicate with young children.
The wife’s solicitor was in error in asserting that it was not a matter for the applicant wife to convince the Commissioner as to legitimate forensic purpose. In Papadopoulos & Papadopoulos (No.2) Justice Cronin endorsed the proposition that the onus of establishing relevance lay on the person seeking the production of documents. However he also endorsed the proposition that the bar is not set very high in respect of relevance in civil proceedings between strangers.[4]
[4] Papadopoulos & Papadopoulos (No.2) [2007] FamCA 1683
At the hearing of the subpoena objection Counsel for the Commissioner submitted that the reasons put forward by the wife did not establish that production of the complaint documents would serve a legitimate forensic purpose and in support of this he relied on the Full Court decision of Dupont & Chief Commissioner of Police.[5]
[5] Dupont & Chief Commissioner of Police & Anor (2015) FLC 93-648
In that case Bennett J, the judge at first instance, had before her an objection by the Commissioner of Police of another state to the production of complaint documents and the first ground of objection was that production of the documents would not serve a legitimate forensic purpose.
The issuing party argued that the documents were relevant because they might corroborate their evidence regarding the other party’s controlling and abusive personality and would indicate that the other party was not a person with whom the child should have an ongoing relationship or spend time.
Bennett J was not persuaded by this argument. She said as follows:
In the absence of evidence by an appropriately qualified person (expert) that persons about whom work place complaints are made are poor parents or are abusive in their interpersonal relationships, evidence of the complaints is of very low or perhaps no probative value...
Bennett J went on to find that for other reasons some of the complaint documents could materially assist the issuing party’s case.
Bennett J then went on to consider whether the Chief Commissioner of Police could resist production of the documents on the basis that to produce them would be injurious to public interest. She upheld that objection and her decision in that regard was the subject of an appeal.
Counsel for the Commissioner of Police submitted that in the course of their decision the Full Court referred with approval to Bennett J’s comments about whether a subpoena requiring production of complaint documents had a legitimate forensic purpose based on the argument advanced by the issuing party which was similar to that raised by the wife’s solicitor. He submitted in effect that I should find this persuasive and should find that the wife’s subpoena insofar as it sought production of the complaint documents did not serve a legitimate forensic purpose.
I do not accept that submission. On my reading of the decision the Full Court merely noted the findings about legitimate forensic purpose by way of background before considering the appeal against the public interest immunity ruling.
That is not the end of the matter because the decision of a first instance judge is often persuasive when the court is dealing with a similar case. However I am prepared to find that the request for the production of complaint documents in the case before me lacks forensic relevance simply because the wife advanced the same argument as the issuing party in Dupont and that argument did not find favour with Bennett J.
Bennett J was dealing with a particular case with a particular factual matrix and she inspected the documents which were the subject of the objection before coming to her decision, something I was not asked to do. The issue of whether the production of complaint documents in respect of a serving officer would or would not serve a legitimate forensic purpose was not exhaustively argued before me and because I do not need to determine it I do not intend to do so.
The objection that the request at paragraph 3(d) is prima facie broad and oppressive
The court may set aside a subpoena or part of a subpoena if requiring a party comply with it would be oppressive and this has particular relevance to paragraph 3(d) of the wife’s subpoena.
Paragraph 3(d) is drafted very widely. It potentially requires the Commissioner to produce every document created about the husband during the course of his employment from 2007 to the present.
It would be burdensome for the Commissioner and put him to an unreasonable amount of expense and effort to produce all of those documents. Such a mass of documents would of necessity contain a vast number which were not relevant to the parenting proceedings and it is not up to the Commissioner to make a judgment about the documents which might be relevant.
The Commissioner may well have documents that are relevant. For example the husband was diagnosed with a medical condition in 2018. He required treatment and had time off work while this occurred. He said that he was not working at present and was on workers compensation as a result of suffering from Post-Traumatic Stress disorder.
The Commissioner may well have in his possession medical reports or reports from psychologists or psychiatrists. The wife is entitled to investigate whether the husband is being truthful about his medical and mental health issues and to consider the contents of medical reports. She is entitled to investigate the issue of how long the husband is likely to be off work and what the future holds for him as a police officer.
There may be other areas of the husband’s employment which the wife can establish are relevant and in respect of which she can seek documents but the request at 3(d) as presently drafted is broad and oppressive and I intend to set aside that part of the subpoena which places an oppressive burden on the Commissioner. The wife will need to prepare a fresh subpoena targeted to relevant information which she believes to be in the possession of the Commissioner of Police.
I certify that the preceding fifty two (52) paragraphs are a true copy of the reasons for judgment of Judge Terry
Associate:
Date: 12 February 2019
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