Collins & Ricardo & Anor - [2014] FamCA 786

FAMILY COURT OF AUSTRALIA

COLLINS & RICARDO AND ANOR

[2014] FamCA 786

FAMILY LAW – PRACTICE AND PROCEDURE – Where the father has filed seven interlocutory applications – Where such applications relate to the review of a Registrar’s decision in relation to subpoena material, the issuing of subpoenas, further particulars and costs – Where a final hearing is set to commence in two months’ time – Orders made dismissing the applications to review a Registrar’s decision – Orders made adjourning the costs application to the final hearing – Orders made for a subpoena to be issued to the ANZ bank and the mother’s treating practitioner – Orders made for the mother to attend a specialist for the purpose of a second opinion – Orders made for evidence of a previous Court event to be played in the final hearing.

Family Law Act 1975 (Cth) s 121

Re South Australian Telecasters Ltd (1998) FLC 92-825
Schwartzkopff & Fitzgibbon & Barker & Ors (1993) FLC 92-381
Xuarez & Vitela [2012] FamCA 574

APPLICANT:

Mr Collins

RESPONDENT:

Ms Ricardo

NSW Police

FILE NUMBER:

SYC

4959

2009

DATE DELIVERED:

4 September 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

4 September 2014

REPRESENTATION

APPLICANT IN PERSON:

Mr Collins

SOLICITOR FOR THE RESPONDENT:

Mr Autore

COUNSEL FOR THE NSW POLICE COMMISSIONER:

Mr Bhalla

SOLICITOR FOR THE NSW POLICE COMMISSIONER:

Crown Solicitors

Orders

The Application in a Case to Review a Registrar’s Decision filed on 16 July 2014 is dismissed.
In relation to the Application in a Case For Further Particulars filed 16 July 2014, the Court noted that the mother informed the Court that she was operated on in 2012 by Dr Q of Sydney Suburb R at O Medical Practice and that leave would be granted to the father to apply for the issue of subpoenas for the clinical notes and any invoices for professional fees and costs associated with that surgery. The Application in a Case is otherwise dismissed.
In relation to the Application in a Case to Review a Registrar’s Decision filed 25 July 2014, the Court noted that for the purposes of the hearing commencing on 17 November 2014, the solicitor for the mother will cause the clinical notes of Dr T of the AB Medical Practice and of Ms BB, Ophthalmologist in relation to the mother’s ability to travel to Court in July 2014 to be produced to the Court and will make arrangement for those doctors to be available to be cross-examined by telephone during the course of that hearing, if practicable.
In relation to the Application in a Case For a Second Opinion filed 25 July 2014, the Court ordered that the mother attend on Mr CC or on Dr DD, Specialist Ophthalmologists at the EE Medical Practice at … FF Street, Cairns at a time convenient to the mother within 14 days of receiving a written request to do so. The Court noted that it is for the father to call…

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 Collins & Ricardo & Anor

Details

AGLC: Collins & Ricardo & Anor [2014] FamCA 786
Case: [2014] FamCA 786
Decision Date: 4 September 2014

CaseChat Overview and Summary

In the matter of *Collins & Ricardo & Anor*, Loughnan J of the Family Court of Australia considered seven interlocutory applications filed by the father, which related to the review of a Registrar's decisions concerning subpoena material, the issuing of further subpoenas, requests for particulars, and costs. These applications were brought in the context of a final hearing scheduled to commence in two months.

The court was required to determine the merits of each of the father's interlocutory applications, including whether to dismiss applications to review a Registrar's decision, whether to adjourn a costs application, and whether to grant leave for the issuing of specific subpoenas to ANZ Bank and the mother's treating practitioners. Additionally, the court considered applications for the mother to attend a specialist for a second opinion and for evidence of a previous court event to be played at the final hearing.

Loughnan J dismissed several of the applications to review a Registrar's decision, including those concerning a subpoena to the NSW Police. The costs application was adjourned to the final hearing. Leave was granted for the father to apply for subpoenas to ANZ Bank and for the mother's treating practitioner regarding her 2012 surgery, with specific directions for the production of clinical notes and availability for cross-examination concerning the mother's ability to travel in July 2014. The court also ordered the mother to attend a specialist ophthalmologist for a second opinion within 14 days of a written request, with the father to bear the costs of obtaining this expert evidence. Arrangements were also to be made for an audio recording of a previous court event to be played at the final hearing.

Orders

Orders of the court

The Application in a Case to Review a Registrar’s Decision filed on 16 July 2014 is dismissed.

In relation to the Application in a Case For Further Particulars filed 16 July 2014, the Court noted that the mother informed the Court that she was operated on in 2012 by Dr Q of Sydney Suburb R at O Medical Practice and that leave would be granted to the father to apply for the issue of subpoenas for the clinical notes and any invoices for professional fees and costs associated with that surgery. The Application in a Case is otherwise dismissed.

In relation to the Application in a Case to Review a Registrar’s Decision filed 25 July 2014, the Court noted that for the purposes of the hearing commencing on 17 November 2014, the solicitor for the mother will cause the clinical notes of Dr T of the AB Medical Practice and of Ms BB, Ophthalmologist in relation to the mother’s ability to travel to Court in July 2014 to be produced to the Court and will make arrangement for those doctors to be available to be cross-examined by telephone during the course of that hearing, if practicable.

In relation to the Application in a Case For a Second Opinion filed 25 July 2014, the Court ordered that the mother attend on Mr CC or on Dr DD, Specialist Ophthalmologists at the EE Medical Practice at … FF Street, Cairns at a time convenient to the mother within 14 days of receiving a written request to do so. The Court noted that it is for the father to call the evidence of such an expert and in the normal course that would be by way of written report verified by an affidavit in which the expert sets out his qualifications, identifies the examinations and records on which the opinion is based and affirms that he has read and complied with the provisions of the Family Law Rules setting out the obligations of expert witnesses.

The Application in a Case filed 31 July 2014 to Review a Registrar’s Decision to set aside a subpoena issued on the application of the father to the NSW Police is dismissed.

The Court noted that consideration would be given to issuing a subpoena to the NSW Police on the father’s application, at the father’s risk as to costs, being a subpoena seeking:

Records, including COPS entries and diary notes but limited to operational records in relation to:

a) contact from or complaints made by the [the mother] to the Wollongong Police in April or May 2009;

b) the date on which [the mother] made an application to NSW Police for an AVO against the father in August or September 2009;

c) advice to [the mother] from the NSW Police in respect of her relocation, offers to assist the mother with the issue of a passport and records evidencing any steps taken by the police to physically relocate [the mother] to WA being records of those communications, advice and steps made or taken in 2009 but prior to September 2009.

The Application in a Case filed 31 July 2014 for the costs of the July 2014 hearing is adjourned to the hearing commencing 17 November 2014.

In relation to the Application in a Case filed 13 August 2014 the Court requested that the registry make arrangements to allow an audio CD of a Court event before Coleman J to be played to the Court during the hearing commencing 17 November 2014.

Leave is granted for the issue of a subpoena to the ANZ Bank in the form presented to Court this day, being a subpoena to be returnable on a date after mid- September 2014.

10.

Unless the court otherwise orders but subject to the requirements of the rules in relation to personal service or acknowledged service in respect of contravention or contempt applications, henceforth service between the parties shall be effected by ordinary prepaid post whether or not service is also affected by email.

11.

Otherwise the Applications before the Court this day are dismissed.

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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