Churchill and Wileman (No.3)

[2016] FCCA 2596

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHURCHILL & WILEMAN (No.3) [2016] FCCA 2596

Catchwords:
FAMILY LAW – Procedural – Whether the father should be given leave to issue eleven subpoenas seeking production of documents – where the dispute between the parties is whether the father should be ordered to pay the mother’s costs of and incidental to parenting proceedings - whether in this context the subpoenas serve a legitimate forensic purpose.

Legislation:
Family Law Act, s.117
Federal Circuit Court Rules, r.15A

Cases cited:
Churchill & Wileman (No.2) [2016] FCCA 107

Australian Gas Light Company v Australian Competition and Consumer Commission [2003] FCA 1101

Applicant: MR CHURCHILL

Respondent: MS WILEMAN

File Number: NCC 2771 of 2013

Judgment of: Judge Terry

Hearing date:	20 June 2016
Date of Last Submission:	20 June 2016

Delivered at: Newcastle

Delivered on: 7 October 2016

REPRESENTATION

Solicitor Advocate for the Applicant:

Solicitors for the Applicant:

Ms Phillipos

YJP Legal

Counsel for the Respondent:	Mr Lloyd
Solicitors for the Respondent:	Bridge Street Lawyers

ORDERS

1. The father is refused leave to issue subpoenas to:

   (a)AEIOU Foundation for Children with Autism in (omitted) Queensland;

   (b)Autism Spectrum Australia (omitted) NSW;

   (c)(omitted) Early Learning Childhood Intervention Service in (omitted);

   (d)Roads & Maritime Service NSW;

   (e)Department of Transport and Main Roads;

   (f)VicRoads;

   (g)(omitted) Credit Union;

   (h)(omitted) Pty Ltd;

   (i)(omitted) Pty Ltd;

   (j)(omitted) Bank;

   (k)(omitted) Pty Ltd;

2. The matter is adjourned to 4.15pm on 12 December 2016 for submissions in respect of the application for costs filed on 8 March 2016.

IT IS NOTED that publication of this judgment under the pseudonym Churchill & Wileman (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2771 of 2013

MR CHURCHILL

Applicant

And

MS WILEMAN

Respondent

REASONS FOR JUDGMENT

Introduction

1. The only live application between the parties in this matter is an application by the mother for an order that the father pay her costs of and incidental to parenting proceedings fixed in the sum of $104,161.00.

2. The parenting proceedings concerned the parties’ only child X who was born on (omitted) 2011.

3. The mother sought orders that she have sole parental responsibility for X and that he live with her and spend no time with and have no communication with the father. She also sought an order that she be permitted to relocate from (omitted) to the (omitted) region. She said that the purpose of this was so that she could enrol X at the (omitted) Clinic in (omitted).

4. It was the mother’s case that she was subjected to serious family violence by the father during the party’s short relationship and that X had suffered developmental trauma as a result.

5. The father strenuously denied that he had been violent to the mother to the extent she alleged and said that it would be in X’s best interest to have a relationship with him. He said at trial that he accepted that X may be on the autism spectrum but he rejected the proposition that X’s symptoms were the result of him having suffered developmental trauma.

6. When the hearing began, the father was seeking orders that the parties have equal shared parental responsibility and that X spend regular time with him leading to equal time when he was of school age. He opposed the mother relocating.

7. Mid-way through the hearing the father consented to orders that X live with the mother, that she have sole parental responsibility and that she be permitted to relocate. The issue which remained in dispute was whether any order should be made about X spending time with or communicating with the father and the extent to which the father should be able to obtain information about him.

8. In the decision I handed down on 9 February 2016 I found that the father had perpetrated serious controlling and coercive family violence and I accepted the opinion of Dr V that X had suffered developmental trauma, noting however Dr V’s evidence that the symptoms of development trauma can mimic the symptoms of Autism Spectrum Disorder (ASD).

9. I made an order that the father spend no time with and have no communication with X and when this is taken together with the fact that the mother by consent has sole parental responsibility for X the effect is that the father cannot obtain any information about X unless of course the mother consents.

10. The issue of the mother’s relocation was dealt with by a notation to the orders stating that the mother intended to relocate to the (omitted) area.

11. Subsequently and within the 28 days allowed in the Federal Circuit Court Rules the mother filed an application in a case seeking costs in the sum of $104,161.00.  She also filed an affidavit and a financial statement.

12. The father filed a response opposing any costs order being made and he also filed an affidavit and financial statement by himself and affidavits by his parents Mr M & Ms L and by Ms K, a legal secretary employed by his solicitors.

The subpoenas

1. Prior to the first return date of the mother’s application the father’s solicitor lodged 13 subpoenas for production in the registry with a request that they be issued.

2. Pursuant to R. 15A.02 of the Federal Circuit Court Rules the Court or a Registrar may, on the Court’s or the Registrar’s own initiative or at the request of a party, issue a subpoena for production.

3. It is implicit in the fact that the Court may issue a subpoena that it may also refuse to issue a subpoena.

4. The request by the father’s solicitors to issue the subpoenas was referred to my chambers and I listed the matter in open court for further consideration.

5. The father’s solicitor informed the court that the father did not press for the subpoenas to (omitted) Bank and (omitted) Bank to be issued but pressed for leave to issue the remaining 11 subpoenas. The mother’s counsel submitted that the court should refuse to allow the subpoenas to be issued because they served no legitimate forensic purpose in the context of the costs application and were arguably an abuse of process.

6. The subpoenas were directed to the following:

   (a)AEIOU Foundation for Children with Autism in (omitted) Queensland, seeking all documents and records in relation to X including enquiries for enrolment and attendance records.

   (b)Autism Spectrum Australia (omitted) NSW seeking all documents or records held in relation to X including enquiries for enrolment and records of attendance.

   (c)(omitted) Early Learning Childhood Intervention Service in (omitted) seeking documents relating to applications for funding and account statements or payments made to the mother for X.

   (d)Roads & Maritime Service NSW seeking records relating to all motor vehicles, horse floats, trailers caravans or boats registered in the name of the mother or her business (business omitted) Pty Ltd.

   (e)Department of Transport and Main Roads seeking a copy of all documents held by them in relation to vehicles registered in the name of the mother and (business omitted).

   (f)VicRoads seeking a copy of all documents held by them in relation to vehicles registered in the name of the mother and (business omitted).

   (g)(omitted) Credit Union seeking financial records held in respect of the mother or (omitted) Pty Ltd for the period 1 January 2014 to the present.

   (h)(omitted) Pty Ltd seeking all lease agreements, finance agreements and associated statements in the name of the mother, (business omitted) Pty Ltd from 1 January 2014 to the present date.

   (i)(omitted) Pty Ltd seeking all mortgage documents and statements for all accounts and credit cards in the name of the mother and (business omitted) Pty Ltd.

   (j)(omitted) Bank seeking all mortgage documents, property valuations and statements for all accounts and credit cards in the name of the mother and (business omitted) Pty Ltd from 1 January 2014 to the present and also seeking statements for the (omitted) Bank Account in the child’s name from the date it was opened to the present.

   (k)(business omitted) Pty Ltd seeking documents relating to any loans made by the business to the mother from 1 January 2014 to the present and receipts for any assets sold by the company including documents evidencing how the proceeds were utilised.

7. It was the father’s case that all of these subpoenas were relevant to the costs application.

The law applicable to the costs application

1. The request for leave to issue the subpoenas must be considered in the context of the costs application and the law applicable to the costs application is in s. 117 of the Family Law Act.

2. S. 117(1) provides that in proceedings under the Family Law Act each party shall bear their own costs. S. 117(2) provides however that the court may make a costs order if it considers that the circumstances of the case justify it doing so, and to determine whether it should make a costs order the court is required to have regard to the matters in s.117(2)A).

3. S. 117(2A) provides as follows:

   In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a)the financial circumstances of each of the parties to the proceedings;

   (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)such other matters as the court considers relevant.

Discussion

1. The first three subpoenas have the appearance of seeking information about X which the father is not permitted to obtain pursuant to the 9 February 2016 orders. However the father’s solicitor submitted that they, and also the next three which sought information designed to discover where the mother had actually relocated to, were relevant to the mother’s conduct of the litigation and therefore might provide information relevant to s. 117(2A)(c) or alternatively s.117(2A)(g).

2. The father’s solicitor submitted that enquiries by her legal secretary had established that X had not been enrolled at the (omitted) Clinic which the mother said at trial had special facilities for assisting children who had suffered developmental trauma and that the father had reason to believe that the mother had in fact relocated to Queensland and not to(omitted).

3. The father’s solicitor submitted that evidence relevant to the issue of whether X had suffered developmental trauma had taken up a large amount of trial time and that if it could be established that the mother had acted since trial as if X had not suffered developmental trauma but rather had ASD this would establish that a large amount of trial time had been wasted which would in turn be relevant to either the quantum of costs or whether costs should be awarded at all.

4. This submission suggests first of all that the father has not properly read the judgment or given thought to the complex nature of X’s presenting condition. I noted in my judgment that Dr V stressed that while it was his view given X’s symptoms and the background of the matter that he had suffered developmental trauma, the symptoms of developmental trauma can mimic autism and that treating the child as if he had suffered development trauma would deliver benefits even if the diagnosis of developmental trauma was incorrect.

5. It is also completely incorrect to say that the evidence the mother gave about family violence, which also took up extensive time at trial, was directed only to establishing that X had suffered developmental trauma. This evidence was relevant not only to that but to the whole issue of whether it was appropriate for X to spend time with the father as he proposed or at all.

6. Finally and in any event, the judgment has been delivered and orders have been made. I cannot reconsider my findings and I cannot re-open the hearing and inquire again into the causes of X’s behavioural difficulties or the appropriate diagnosis for him no matter what the mother has done since separation.

7. The father’s solicitor submitted that another reason to permit the issue of the first six subpoenas was that the father suspected that prior to judgment being delivered in February 2016 the mother might have already enrolled the child in a school other than she referred to in her evidence and she submitted that if that was the case the mother should have informed the court of this before the decision was delivered.

8. The mother was under no obligation to apply to re-open the hearing between the conclusion of the trial in July 2015 and the delivery of the decision in February 2016 and in any event the issue of whether she should have but did not would have no bearing on the issue of the costs of the trial.

9. The mother’s counsel conceded during submissions that the mother had in fact now relocated to Queensland rather than (omitted) but she had sole parental responsibility as a result of a consent order made in July 2015 and has not breached any order in doing so whether she did so prior to the decision being handed down or after.  

10. I do not accept that any of the first six subpoenas serve any legitimate forensic purpose in the costs application and I do not intend to permit them to be issued.

11. The father’s solicitor submitted that the subpoenas to (omitted) Bank, (omitted) Credit Union, (omitted) Finance and (omitted) Bank and to the mother’s company were all intended to cast light on the mother’s financial situation which is a relevant s. 117 (2A) matter.

12. It was submitted that the (omitted) Bank might have valued the mother’s business, that documents from (omitted) Finance and (omitted) Bank might establish that she had entered into debt whether herself or as a guarantor and if true this would cast doubt on her claim that she was financially struggling, that the father was entitled to know how a total of $11,935.00 withdrawn from a (omitted) Bank Account had been used and that the subpoena to (business omitted) Pty Ltd was required to elicit evidence about the mother’s borrowings from her company.

13. It would be entirely inappropriate to allow subpoenas to be issued to the mother’s company to check her assertions that she drew money from the company to help pay her legal costs and entirely inappropriate to allow the father to fish around in the minutiae of the mother’s financial affairs by allowing subpoenas to be issued to (omitted) Finance, (omitted) Bank, (omitted) Bank; or

14. The mother has filed a financial statement and the father has not in my view established that a fair hearing of the mother’s costs application requires that he be permitted to issue these subpoenas.

15. The father lived with the mother at her property near (omitted) during their short relationship and the parties agreed on a property settlement soon after separation in 2012. The father has some general knowledge of the mother’s financial situation at that time and he did not suggest that she was a person of considerable wealth who now crying poor.

16. The father has provided no foundation for being permitted to go on what has all the appearances of a fishing expedition into the mother’s finances. Given the family violence findings, I feel a sense of unease about why the father is seeking to delve deeply into the mother’s finances. However putting that to one side, I am not convinced that it is necessary to allow him to do so to ensure that his opposition to the mother’s costs application is given fair consideration.

17. The mother’s counsel also pointed out that the mother had supplied the father’s solicitor with some documents supporting her claims about the current state of her finances, and if the father seeks further disclosure he should exhaust the option of asking for it from the mother before seeking to issue subpoenas.

18. There is no basis for allowing a subpoena to be issued to the (omitted) Bank seeking statements relating to X account. Whether or not at some time in the past the father paid money into this account does not detract from the mother’s claim that the father is not paying child support, an issue which in any event is likely to be a non-issue in the costs application as the mother has made a deliberate choice not to seek child support.

19. Case management considerations and the burden on a busy registry are also legitimate considerations in deciding whether to allow the subpoenas to be issued. [1] The issue of 11 subpoenas or even 5 subpoenas will create work for the registry; the documents will have to be received, recorded and packeted and time will be taken up making arrangements for inspection. The mother will then incur additional legal costs because her legal team will need to inspect all the subpoenas and this will be oppressive for her.

    [1] Australian Gas Light Company v Australian Competition and Consumer Commission [2003] FCA 1101 per French J

20. If the subpoenas served a clear forensic purpose then these considerations would be secondary, but they are relevant considerations when there is nothing to suggest that the subpoenas do serve any clear forensic purpose.

21. I do not intend to give leave for any of the subpoenas to be issued.

22. I will include in the orders a date for hearing submissions in respect of the mother’s costs application.

I certify that the preceding forty four (44) paragraphs are a true copy of the reasons for judgment of Judge Terry.

Date: 7 October 2016