Cadriel & Gabbey (No 2)

Case [2022] FedCFamC1F 510

Federal Circuit and Family Court of Australia

(DIVISION 1)

Cadriel & Gabbey (No 2) [2022] FedCFamC1F 510

File number(s): ADC 4072 of 2019
Judgment of: BERMAN J
Date of judgment: 7 July 2022
Catchwords:

FAMILY LAW – CHILDREN – With whom a child spends time with – Best interests of the children –Where the mother opposes any time spending – Where the father has spent no time with the children for more than one year - Where there are allegations of sexual abuse and family violence – Where the children maintaining a relationship with the father needs to be balanced against the risk to the children –– Where the mother has not facilitated the father spending supervised time with the children in accordance with the order – Where the father asserts that the mother inappropriately interfered with the supervisor process - Where the supervisors were not prepared to facilitate the order - Where the father seeks an alternative supervisor –Where the Court makes an order for the father to spend time with the children pursuant to s 65L of the Family Law Act 1975 (Cth).

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Where the father seeks documents from SAPOL – Where the mother objects and asserts the father’s subpoena is a fishing exercise - Where the mother also seeks documents from SAPOL – Where the mother’s own case and subpoena to SAPOL supports the relevance of the father’s subpoena – Where the mother seeks recordings and documents from SA Ambulance Service–Whether there is a sufficient apparent connection to establish relevance – Whether it may be a fishing exercise - Where the Court will consider the documents and determine relevance
Legislation:

Family Law Act 1975 (Cth) ss 60CC(2), 60CC(2A), 60CC(3), 65L, 69ZN, 69ZW

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.01

Cases cited:

Hatton v Attorney-General of the Commonwealth of Australia (2000) FLC 93-038

Lucas Industries Ltd v Hewittand Ors (1978) 18 ALR 555

Martin & Martin and Anor(No.2) [2014] FamCA 232

National Employers’ Mutual General Association Limited v Waind and Hill [1978] 1 NSWLR 372

Woley & Humboldt (No. 4) [2009] FamCA 546

X Pty Ltd & Merhi [2015] FamCA 622

Division: Division 1 First Instance
Number of paragraphs: 61
Date of hearing: [7 July 2022]
Place: Adelaide
Counsel for the Applicant: Ms Ross
Solicitor for the Applicant: Southern Vales Legal
Counsel for the Respondent: Ms Poetsch
Solicitor for the Respondent: Phoenix Family Law
Counsel for the Independent Children’s Lawyer: Ms Olsson
Solicitor for the Independent Children’s Lawyer: Silkwoods

ORDERS

ADC 4072 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS GABBEY

Applicant
AND:

MR CADRIEL

Respondent
AND:

INDEPENDENT CHILDREN'S LAWYER

order made by:

BERMAN J

DATE OF ORDER:

7 JULY 2022

UPON NOTING THAT the matter remains listed for trial to commence on 19 September 2022 and that the mother is yet to file any additional affidavit material.

THE COURT ORDERS THAT:

1.Paragraph 2 of…

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AGLC
Cadriel & Gabbey (No 2) [2022] FedCFamC1F 510
Case
[2022] FedCFamC1F 510
Decision Date

CaseChat Overview and Summary

Cadriel & Gabbey (No 2) involved a complex and long-standing dispute between the parties regarding the supervision of time spent by the children with their father. The matter had been before the court since 2019, with the final hearing set to commence in September 2022. The primary legal issue was whether the court should consider the failure to enforce a previous order as a reflection of the father's conduct, or as a consequence of the mother's refusal to facilitate the supervision as required. Another issue was the admissibility of the mother's affidavit, which was deemed largely irrelevant, leading to an adjournment.

The court examined the mother's subpoena seeking the release of information from a phone recording, determining whether this information was relevant to the proceedings. The court decided to review the documents produced under subpoena and make a determination on their relevance. If found relevant, an order would be made to release the information; if not, the subpoena would be struck out.

In its reasoning, the court emphasised the importance of determining the best interests of the children in line with the Family Law Act 1975 (Cth). The court recognised the tension between the child's benefit of having a meaningful relationship with both parents and the need to protect the child from harm. The court also highlighted the need for efficient and effective litigation to avoid prolonged proceedings that are not in the best interests of the children.

The final orders included consideration of the relevance of the subpoenaed documents and a determination on whether they should be released or the subpoena struck out.

Orders

Orders of the court

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Background

Background to the litigation

It is common ground that the order of 19 June 2020, has not been given proper effect. It is not a matter at this stage to determine why that has occurred but I am satisfied that in the circumstances, as I understand them, the fact that the order has not facilitated the children spending time with the father, is not to be considered as a criticism of him. It is a circumstance where Ms A and Ms B, for various and separate reasons, some of which may become relevant in the upcoming proceedings, have determined that they were no longer prepared to facilitate the supervision as required by the order.Background This matter has been before the Court since 2019 and with some difficulty and complexity, is listed for final hearing to commence on 19 September 2022. In the circumstances of my involvement with this matter, this is the second hearing date that has been set since it was transferred to Division 1, by order on 16 August 2021. On 2 December 2021, orders were made by me, which set the matter down for final hearing to commence on 15 March 2022. At that time, trial direction orders were also made. On the first day of trial, the proceedings focused upon the affidavits of each of the parties, but in particular, the substantial notice of objection that had been prepared by counsel for the father in respect of the mother’s trial affidavit. I do not propose to go into the issues that went to the construct of the affidavit, but the result was that a significant portion of it was considered to be irrelevant and therefore either inadmissible, scurrilous, vexatious or of opinion evidence that the deponent was not able to give. That resulted in the proceedings being adjourned in circumstances where the mother’s then solicitor, Mr O, sought leave of the Court to withdraw from the proceedings. It appeared that there was a significant issue and breakdown in the professional relationship between the mother and her then solicitor. The inevitable consequence of the foregoing, was that I did not consider that it would be in the proper administration of justice for the trial to proceed in circumstances where the mother thought that she was represented by counsel and by solicitor in counsel however, ultimately, she was not then represented. Accordingly, the proceedings were further adjourned. During the course of that adjournment a number of things have happened. The first is that there have been various attempts made by the father to vary the orders of 19 June 2020, such that there be a different supervisor for the purposes of giving effect to the order. The father made an allegation or an assertion, that he considered that the mother had inappropriately interfered with the supervisor process and that her conduct was such that, if unrestrained by an order, it would likely result in any new supervisor refusing to be involved in the process. An order was sought that the identity of the supervisor remain unknown effectively to the mother, to enable the supervisor to conduct the supervision without challenge.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is difficult, at this stage, for me to ascertain the relevance of that subpoena and it very well may well be a fishing exercise with the hope by the mother that something comes of the phone recording or the information that was transmitted which would be of assistance to her. Conclusion What I propose to do in the circumstances of this case, is that I will consider the documents that have been produced under subpoena and make a determination as to whether I consider that the information is relevant. If the information is relevant, I will make an order in chambers that it be released. If it is not, then I will order that the subpoena be struck out. I make the orders as appear at the commencement of my reasons.

Ratio Decidendi

Legal Principle Established

Ultimately, a report is able to do no more than to provide assistance to a judicial officer in what I consider to be the fundamental purpose and basis upon which a parenting trial is conducted, being that the Court is to properly consider the separate proposals of each of the parties and to understand from all of the evidence available to the Court how the children’s presentation, their circumstance and their aspect are likely to be impacted either positively or detrimentally by the parties’ separate proposals. That is the process which is assisted and underpinned by a number of considerations.Parenting Considerations Best interests of the children Division 12A of the of the Family Law Act 1975 (Cth) (“the Act”) and the clear application of s 69ZN of the Act provide a clear indication of the focus of the Court and the need to consider all aspects of the proceedings. Overarchingly, I do not consider that Division 12A of the Act frankly goes beyond and/or speaks against the proposition that ongoing litigation can never be seen as in the best interests of a child or children. The Court should take all reasonable steps to ensure that litigation is heard and determined efficiently and efficaciously. In terms of what is required by a court in determining parenting issues, there is little doubt that in virtually each and every aspect of the process, whether it be the mechanics in respect of the trial and certainly in respect of the operative and proposed orders, that a court must determine what is in the best interests of a child. Determining the best interests of a child is to be done by a consideration of both the primary and the additional considerations of the Act. The primary considerations, as I have already mentioned, have about them a tension that needs to be resolved in circumstances where, whilst it is clear and I think beyond contention that s 60CC(2)(a) of the Act provides that there is a benefit to a child of having a meaningful relationship with both of the child’s parents. That is, it is a child-focused exercise and not a matter of whether one party, or the other, thinks that either the child would benefit from a meaningful relationship or would not benefit, by coming into contact with the child. That must be tempered by a consideration of s 60CC(2)(b) of the Act, namely the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In the application of the considerations under s 60CC(2) of the Act, the Court is to give greater weight to the considerations as set out in s 60CC2(b) of the Act. The primary considerations are also assisted and added to by the more detailed additional considerations in s 60CC(3) of the Act. A number of findings have been previously made for the purposes of interim proceedings as is understood by counsel, solicitors and possibly the parties. The matters that are relevant to determine interim proceedings are not necessarily the same as would be relevant to determine final proceedings. Quite obviously, the advantage that the Court has in respect of a final hearing, is that it has the ability to hear the evidence that each of the parties considers supports and provides the foundation for their parenting proposals, and to see the parties in terms of their evidence and in terms of them being subject to examination, cross-examination and re-examination.