Cadriel & Gabbey (No 2)
[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 the orders made on 19 June 2020 be suspended until 19 September 2022.
2.Pursuant to s 65L of the Family Law Act 1975 (Cth) the children Y born in 2019 and X born in 2016 spend time with the father on two occasions at 9am on 8 August 2022 and at 9am on 10 August 2022 with such time to be supervised at the Commonwealth Law Courts, Court Children’s Services, Level 2, 3 Angas Street, Adelaide by a Court Child Expert appointed by the Court Children’s Services of the Adelaide Registry, with a short form report to be published on or before 18 August 2022.
3.The Independent Children’s Lawyer provide such court documents to the Court Child Expert as the Independent Children’s Lawyer considers is necessary to give context to the observation and assessment as ordered herein.
4.That only the solicitors for the parties and the Independent Children’s Lawyer shall communicate with the Court Child Expert as to the arrangements of the observation and assessment to be undertaken.
5.That the mother will facilitate the attendance of the children upon the Court Child Expert as may be necessary to give effect to these orders.
6.That the Notice of Objection to subpoena directed to SAPOL filed 28 April 2022 be dismissed.
7.That the parties legal representatives have leave to inspect and copy documents produced by SAPOL pursuant to a subpoena issued on 19 April 2022 providing that all copies of subpoenaed material remain with the solicitors for the parties and are destroyed or returned to the court at the conclusion of the proceedings.
8.That upon noting that the court is not satisfied as to the relevance of the documents produced pursuant to subpoena filed 21 April 2022 to, Mr N, SA Ambulance Service, orders as to whether the subpoenaed material will be available for inspection and copy is reserved pending review of the documents as to their relevance by the Honourable Justice Berman.
9.Liberty is granted to each party and the Independent Children’s Lawyer to relist the matter at short notice generally, including any application for subpoena to issue.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cadriel & Gabbey has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
The proceedings before the Court involve the future parenting arrangements in respect of the parties two children, X, born in 2016 (“X”) and Y, born in 2019 (otherwise known as Y) (collectively “the children”).
The current care arrangement in respect of the children, is that they live in the primary care of the mother but that they are the subject of an interim order made by Judge Kari, as she then was, made on 19 June 2020, which provided that until further order, the children live with the mother and spend time with the father each Saturday from 10.00 am until 12 noon, with such time to be supervised by either Ms A or Ms B. The costs of that supervision were to be borne by the father.
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.
That father’s amended application in a proceeding and affidavit filed on 4 July 2022 was the subject of response filed on 7 July 2022 by or on behalf of the mother. The mother’s response sought relatively straightforward orders, the first being that the father’s amended application in a proceeding be dismissed. The second being that the father’s time with the children be suspended indefinitely and pending final determination of the substantive proceedings. I suspect that on consideration, the drafting of that order probably would invite an amendment however, it is the mother’s case that the children should never spend any time with the father.
There may also be a concession by the mother, that in terms of the next logical step or stage in the proceedings, the mother’s position is that at the very least, there should be a suspension of the order made by Judge Kari, and subsequently amended by me, to a date consequent upon the final determination of the proceedings, now that a date is known. There is information that provides me with assistance in terms of the presentation of each of the parties. For the father’s part, he relies upon his affidavit material, but in particular he relies upon the Family Assessment Report ordered by Judge Kari on 13 November 2020, and prepared and published by can Ms P on 24 July 2021. In particular, I am directed to the observations of interactions at paragraph 76 of Family Report Writer’s report and the recommendations of Ms P.
There is no doubt that to the same degree that the father would find favour with the recommendations of Ms P, the mother’s position is that she just as fervently opposes the observations and recommendations by Ms P. To the extent that a report is of assistance to the resolution of a parenting dispute between parties, there is little doubt that in the ordinary course of events, it is appropriate for the Court to afford proper weight to a report. That does not mean that the judicial officer is not permitted to demur from the report, or even indeed, find favour in an opposing view or position.
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.
In respect of the matters that I have to determine today, but also in terms of the detail, I bring sharp focus to my considerations by reference to the provisions in respect of s 60CC of the Act, in particular, the primary considerations.
The children have not seen the father now for a considerable period of time. I consider that it is a proper matter for the Court to determine whether there should be some time facilitated between the children and the father, not necessarily because the father wants time with the children in terms of an interim arrangement, but because it may assist the Court in understanding the extent to which the Court can have confidence in the father’s position, which is that the children wish to see him and that he has something to offer, and in offering that, the children would have a direct benefit.
Conversely, the mother’s position is that her opposition to the father spending time with the children is not simply based upon her own concerns, although there is a factor in that, but also because she considers that the father has nothing to offer the children. Moreover, that the children’s own functioning and circumstances are such that time with the father may, in fact, exacerbate the underlying behavioural and other considerations and conditions that the mother considers she has worked hard to support, underpin and manage. There is little doubt in my mind that each of the parties, again, are fervent in their particular views and beliefs, however, I must bring together the threads as I find them.
In the circumstances of this case, there is enough evidence before me, in particular, arising from the Family Assessment Report, which suggests to me not that there should be a wholesale revision of the previous orders in the sense of putting in place a rigour to the children spending time with the father, but that it is at least open to consider gaining some better information that might help me determine what, at present, is the conundrum in terms of the diametrically opposed positions of the parties.
There is enough evidence for me to consider that it is worth exploring the extent of the benefit to the children of having a meaningful relationship with the father, providing that a method and manner can be determined which either reduces or removes any risk in terms of any interaction between the children and the father, protects the children, and puts in place appropriate checks and balances that cover not just matters relating to the emotional risks that may be attendant to the children, but also in terms of matters relating to physical risk.
In doing so, it is not to be considered by the father, that there has been a finding in support of the mother’s contention. Nor should the mother gain necessary comfort from the matters that I express, as being an indication that I am persuaded that her evidence supports her contentions. Again, it is important that it be understood by the parties, that my focus is now turned to not what the parties want, but rather what I may reasonably need and properly expect to receive such that I can discharge my obligation under the Act.
Section 65L of the Act
I have determined that a proper way forward which provides an appropriate balance of the competing interests of the parties, but also gives proper consideration to s 60CC(2)(a) of the Act as far as the father is concerned, s 60CC(2)(b) the Act as far as the mother is concerned, and the additional issue under s 60CC(2A) of the Act as far as the Court is concerned, by making an order pursuant to s 65L of the Act.
The wisdom of s 65L of the Act, is that it provides for the Court, by reason of a Court Child Expert supplied Court Children's Service, to supervise and observe the children spending time with the father for a limited period in the precincts of the Court in circumstances where I am satisfied, although I accept the mother may not be satisfied, that there would be no associated physical risk to the children. To the extent that I can not necessarily know the exact impact upon the children of coming into contact with their father, it may be it is as the mother says and it causes them a level of distress, it may be, however, that, as was reported by Ms P, it causes them a level of delight. I do not know the answer.
What I am satisfied about, is that the proposed Court Child Expert has sufficient skillset and ability to be able to monitor carefully the conduct of the children, their demeanour, their behaviour, and that the Court Child Expert will at his or her absolute discretion, terminate the time if it is considered that there is no utility in the process continuing. By necessity, I consider it must be left at the discretion of the Court Child Expert.
I will seek that there be a short form report as a result of two occasions of time between the children and the father.
For reasons that I think are apparent, I propose, during the period between now and the hearing, to suspend the order of 19 June 2020. The only order that will be in place in respect of the children’s ability to spend time with the father, will be pursuant to the order I propose to make under section s 65L of the Act.
whether there is sufficient apparent connection to establish relevance to the subpoenas
The next matter that needs to be considered is the issue of various subpoenas that have been issued.
Father’s subpoena to the Commissioner of Police
One by the father to the Commissioner of Police on 19 April 2022, seeking police records pertaining to the mother, where she is listed as either the perpetuator, complainant or witness, and all criminal history, including incident reports, apprehension reports and any other documents.
The subpoena is the subject of strong objection on behalf of the mother, and it is said that there is not likely to be any material in the documents produced by SAPOL to the Court, that will be relevant to the proceedings. For completeness, the following are the basis for the objection for the subpoena:
(1)That the documents requested are irrelevant to the matters in dispute.
(2)The subpoena is an invasion of privacy.
(3)The subpoena is a fishing expedition.
(4)The subpoena is issued without a legitimate forensic purpose; and
(5)The terms of the subpoena are too wide and are vague and/or non-specific.
Perhaps, dealing with some of those orders to exclude them from further consideration, it is readily seen that the fact that the documents have already been produced by SAPOL would suggest that objection 5 is no longer a relevant consideration. Objection 1, 3 and 4 are, in effect, the same objection. They were in different terms, but they relate to the concept of relevance. The second objection is not a matter of relevance, but it relates to an invasion of privacy. I am uncertain as to the parameters of that objection.
Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides an obligation on parties to make full and frank disclosure and to provide specific means by which that obligation must be fulfilled. It is apparent that even in parenting cases, there is a breadth of the duty to disclose and it is incumbent on the parties to make full and frank disclosure to enable the Court to go about its business and to make orders as required under the Act.
In the absence of full and frank disclosure, the Court process would flounder. However, that does not mean that disclosure should be unnecessarily sought or that a party should be permitted to require disclosure, certainly by subpoena, of documents that are irrelevant or constitute a fishing exercise, in the hope that something will drop from the documents that was not previously known.
The general practice as it relates to subpoenas to produce documents is explained by Smithers J in Lucas Industries Limited v Hewitt and Ors (1978) 18 ALR 555 at [570]:
The purpose of the process of subpoena is to facilitate the proper administration of justice between parties. For that purpose, it is the policy of the law that strangers who have documents may be put to certain trouble in searching for and gathering together relevant documents and bringing them to court. It is according to the same principle that persons who have knowledge of facts are put to the inconvenience of being brought to court and required to give evidence.
The primary test is the relevance of the documents to the issues before the Court. The Full Court in Hatton & Attorney-General of Commonwealth of Australia & Ors (2000) FLC 93–038 (“Hatton”) considered the test of relevance and set out examples of where a court may determine where it is proper to set aside a subpoena:
·If the subpoena is for an improper purpose, namely, to obtain discovery against a third party.
·Where it might be oppressive to comply with a subpoena.
·Where a party embarks upon a fishing expedition, and;
·Where the subpoena should be set aside because it lacks relevance.
In the decision of X Pty Ltd and Ors & Merhi (2015) FamCA 622 at [43], McClelland J, as he then was, found that the subpoenas were inappropriate because:
…Essentially, they are speculative in the sense that they are “a train of inquiry” that might assist the wife’s case rather than it being “on the cards” that they will result in the production of documents that will be relevant to the issues in the case.
The relevant stages of having a third party bring documents to the Court were described in Hatton (supra) at [38] by reference to National Employers’ Mutual General Association & Waind and Hill [1978] 1 NSWLR 372, as being a three step process:
The first [step] is obeying the subpoena, by the witness bringing the documents to the Court and handing them to the Judge. This step involves the determination of any objections of the witness to the subpoena, or the production of the documents to the Court pursuant to the subpoena. The second step is the decision of the Judge concerning the preliminary use of the documents, which include whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in which, whole or in part, or in the use of it in the process of evidence, being put before the Court by cross-examination or otherwise.
In Martin & Martin and Anor(No. 2) [2014] FamCA 232, Cronin J found that the focus of the Court should be whether it was “on the cards” that the documents would materially assist the proceedings. At [28], Cronin J referred to his own remarks in Woley & Humboldt (No. 4) [2009] FamCA 546, where he said, at paragraph 39:
In Hudson Timber and Hardware Ltd v Chaudhary Group Pty Ltd [2002] FCA 832, the Full Court of the Federal Court examined the issue of apparent relevance and said that the relevant principles governing the obtaining of documents on subpoena which have “apparent relevance” were that, inter alia:
(1) The relevance of the documents was not limited to documents directly admissible in themselves in proof of an issue raised in the pleadings; and
(2) If a class of document which has material forensic relevance could be shown to exist, then a subpoena would not normally be set aside.
The test, therefore, is one of whether a document has a sufficient apparent connection to justify their production or inspection.
In the current case, there is a challenge to whether there is sufficient apparent connection to establish relevance.
Mother’s subpoena to the Commissioner of Police
The issue, however, of documents potentially held by the Commissioner of Police, in respect of SAPOL documents, was a matter explored by the mother in terms of a subpoena that she caused to be issued on 10 February 2022, to the Commissioner of Police.
In relation to records from SAPOL, the mother sought documents other than that which were contained in a s 69ZW request, pursuant to an order made by Judge Kari on 13 February 2020.
She sought in relation to the father, all offender history reports, apprehension reports, police incident reports where the father is/ was a suspect, street checks in relation to domestic violence, street checks where the mother and/or the children are named in relation to the father, all intervention orders, all domestic violence risk assessments from 6 April 2018 to date, the domestic violence risk assessment completed by Ms Q of R Hospital in 2019 submitted by SAPOL, and all records of interview, statements of charges (by report or arrest), criminal defences given in relation to the rape of the mother and the sexual assault of the father.
Those documents were produced, there was no objection and there has been, presumably, inspection.
The issue of SAPOL documents was also a matter referred to in the Family Assessment Report of Ms P, at paragraphs 12, 13, 14, and possibly 15. I do not propose to go into those matters however they have been the subject of discussion today, are comprehensive, and they establish what I might describe as a nexus of connectivity and relevance between documents likely to be held by SAPOL and significant and principal issues between the parties and involving the children.
It is an important aspect of the mother’s case that she was the subject of rape by the father and that the father sexually abused one of the children, namely, X.
It may be that the subpoena sought by the father is not going to produce documents in addition, or of more relevance, or more expansively, than the documents that were already produced by SAPOL, pursuant to the mother’s subpoena of 10 February 2022. To the extent that there is an aspect of the proceedings that may involve what Ms P sets out in paragraph 13 of her Family Assessment Report, as the mother reporting that she was the victim of historical rape, relating to three separate males, between 1996 and 1998.
There may be some aspects about that which the mother would consider are irrelevant to the current proceedings.
The mother’s objection was not to exclude documents relating to historical rape not involving the father, but rather that her contention was there was nothing in the SAPOL documents which was likely to be relevant, and that it was a fishing exercise.
It seems to me, whilst I do not know whether there is anything left that SAPOL has to provide, it is unlikely that I am not able to find that the father’s subpoena is a fishing exercise in circumstances where the mother’s own case presentation, including her subpoena, supports the contention that SAPOL is replete with documents relevant to the proceedings.
The documents may, or may not be, relevant to the matters raised by the mother, or matters raised by the father, but they nonetheless go to the issues that I am likely to be required to make a finding about, in particular, the nature of the relationship between the parties, the extent of allegations that have been made by either of the parties about the other, the basis and background to the allegation by the mother of the father’s alleged rape upon her and, importantly, the allegation of sexual assault by the father in respect of the child, X.
Mother’s subpoena to SA ambulance service
The final matter relates to a subpoena dated 21 April 2022, directed by the mother to Mr N, SA Ambulance Service. This relates to the aftermath of a hearing before me on 17 March 2022.
The circumstance, as I understand it from submissions of counsel, is that following that hearing, the mother experienced a state of anxiety and distress, and that as a result of that observation being made of her state and condition, an ambulance was called to assist her. I think it is uncontroversial that after an extended period of time, the ambulance did not arrive.
The documents sought by the mother relate to two categories. The first relates to the recording, if any, of a phone call that may have been made seeking the attendance of an ambulance. The second relates to any notes, transcript, memoranda, correspondence, email and dispatch records.
There is no objection to the subpoena, but given that the matter has come to my attention, and that certain submissions have been made in respect of the utility and purpose of the subpoena, the issue that is raised as far as I am concerned is the issue of relevance.
It is difficult to see what the relevance would be and the concern, of course, is that there may be information on the transcript with SA Ambulance that may unnecessarily involve members of the Court staff, or other persons who may have assisted and/or attended upon the mother, to be unnecessarily brought into the proceedings where their evidence will not assist me in determining the parenting considerations.
As I understand it, the mother’s position is that she is keen to establish, by other evidence, the extent of her distress at court. To some extent, it may well be a matter for the mother to explain and set out her distress, but the issue is not going to be necessarily that there is corroboration required for the mother’s distress. Rather, the issue will be determined by the mother’s presentation of the evidence that goes to the extent to which parenting orders might be made that provide some time between the children and the father and the consequential, and potentially deleterious, effect that would have upon the mother, and her ability to function and, therefore, provide proper parenting.
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.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 19 July 2022
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