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 of 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

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

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Collins & Ricardo and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 4959 of 2009

Mr Collins

Applicant

And

Ms Ricardo

Respondent

EXTEMPORE JUDGMENT

INTRODUCTION

1. Before the Court is an Application for permission for the Court to issue a subpoena to the New South Wales Police Department.  The subpoena was lodged with the Court on 20 June 2014, and there was an objection, I understand, on behalf of the New South Wales Police.  Something occurred whereby the applicant father, Mr Collins (“the father”) was not able to be before the Registrar.  On the face of the documents, it sounds like that was through no fault of his, perhaps a mix-up with arrangements for contacting him.  The father is entitled to have the issue of the subpoena being answered, determined on the merits.

2. An application has been made by him to review the decision of the registrar, and that is an application that is heard de novo, so there was no need for him to identify that the registrar was wrong in any way.  We come to the matter today.  The New South Wales Police are represented in Court, and they resist the subpoena on the basis that it is simply too broad, that there could be no legitimate forensic purpose for a subpoena that, in effect, seeks every record held by the New South Wales Police that could have any association with the mother in these proceedings, Ms Ricardo (“the mother”).  As has been pointed out by the counsel representing the police, that could relate to administrative arrangements in relation to something that had some peripheral connection with the mother.

3. The father relies on an affidavit that he swore on 30 May 2014, which was filed on the same date as the subpoena, and there is one paragraph of the affidavit that seems to relate to the subpoenas, and perhaps the quickest thing might be to read it out.  He says:

   [The mother] gave false evidence before Justice Loughnan on 19/2/14 [the father] was violent and she was scared of him and that is why she with held her address and contravened Justice Watt’s order 3.5.  Oddly, after a 9 day hearing Justice Watts made order 3.5 that [the mother] keep [the father] informed of her address.  [The mother] claims she contacted and made complaints to Wollongong Police in April / May of 2009, while in a relationship with [the father].

   [The father] knows that this is a lie and a Subpoena to NSW Police will clear this issue up. 

   The records show that [the mother] attempted to get an AVO on [the father] 2 weeks after he commenced litigation for a 50 / 50 shared care arrangement and a relocation order.  Oddly, she had been living in outback Western Australia when she pursued this course of action. 

   Again, a subpoena to NSW Police will show when this AVO was applied for. 

   History will show that in 2002 [the mother] also attempted to get an AVO on her then Husband Mr [B] after he also started Family Law Court litigation for the return of his daughter from Brazil. 

   One year later [the mother] attempted to gain another AVO on [the father] when she was living in outback WA and he was living in NSW.  Oddly, the only contact in that 12 month period was a text from [the father] asking to see his daughter.  Again, this was unsuccessful.

   Again [the mother] in about 2003 did the same thing to her then exhusband Mr [B] about 12 months after the initial unsuccessful attempt.  Again she was un successful.  A subpoena to NSW Police will clearly show this pattern.

   [The mother] gave evidence on 19/2/2014 before Justice Loughnan NSW Police advised her to relocate, offered to supply passports and indeed did relocate her to Western Australia.  A subpoena to NSW Police will clear this point up.. 

   I intend to gain transcripts of the findings in all courts in relation to the 4 failed AVO hearings and the cross examine [the mother] on the accuracy of her evidence and her willingness to mislead the courts and provide beyond a doubt that she had no excuse not to comply with order 3.5.  Spite is not an excuse to prevent a daughter not having a relationship with her Father and Father’s relatives.

4. Well, the first problem is that the subpoena is drawn so widely that it is not limited in any way to the matters that the father sought to discover.  It is not for the Police to read down the subpoena, and it is not for the mother to read down the subpoena.  There may be an issue in relation to, where there is a narrowing of the matters to be addressed, the Court could allow a subpoena to issue in relation to some aspects of the inquiry that the father identifies.  The trouble is that the subpoena is drawn at the moment in such a broad way that it is difficult to see how it could be remedied.

5. The father is not entitled to every police record about the mother from 2002 to 2012; secondly, the father is not entitled, in my view, to call for records of proceedings between the mother and somebody else.  There are restrictions on tendency evidence or similar circumstance evidence that are allowed in proceedings before the Court, so the evidence he seeks to gather in relation to the issues between the mother and somebody else could not be made relevant to these proceedings, and in my view, to the extent that the subpoena sought to gather that information, the subpoena is too broadly drawn.

6. I am not even sure that some of these matters are in issue between the parties, for example as to whether an AVO was applied for and rejected.  I am not quite sure that there is a need for a subpoena in relation to some things.  The problem with this case is that the father is acting on his own account, and he is thrashing about in the legal system, causing all sorts of trouble for everybody in the Court, let alone anybody else, and, to some extent, that is because he is not to know how to manage his case.  The Court cannot help him as to what evidence to call or how to manage his case, because to do so would interfere with the rights of the mother.  I appreciate he is in a difficult position from that point of view, but that does not mean he can require an order under penalty, which is what a subpoena is, to issue, even to an institution, without regard to the limits of the rules of evidence and the matters relevant to the proceedings before the Court. 

7. The other problem for him is, if I was to allow the subpoena to issue as it was, he could well get a bill for $100,000 from the New South Wales Police to comply with the subpoena.  Then he would be aggrieved about that and come along and say, “How could that happen?”  That is what happens if you ask for a complete, exhaustive search through every aspect of the administrative and operational records of a huge organisation like the New South Wales Police.

8. If the subpoena was redrawn to seek records of communication and complaints made by the mother to the Wollongong Police in April/May of 2009, that may be appropriate.  I am not sure – there is a potential for this to be entirely misconceived, because it is the mother’s job to establish that she has an excuse, not the father’s job to disprove it.  Just assuming for the moment that the forensic onus passed from the mother to the father and he wanted to join issue with her about something, it might be that there is a relevance to establish whether there was a contact with Wollongong Police.  The subpoena would have to be limited to something like the words that have been used.

9. Next, the father says – and I am not sure that it is in dispute – he wants the subpoena to reveal whether an AVO was sought by the mother against him two weeks after he commenced this litigation.  If there is a dispute about that, and I am not sure that there is a dispute as to whether an AVO application was made, then the subpoena could issue in relation to that record.

10. As I have said, anything to do with Mr B would not be permitted.  The father says, one year later, there was an application for an AVO.  Again, I am not sure that that is in dispute by the mother.  If it is in dispute, and the father has no records about it, then a subpoena could issue in relation to the bare application.  He will know the month, within a month or two, and the subpoena could cover that.  Again Mr B will not be relevant.  Finally, the mother gave evidence that she was advised by New South Wales Police to relocate and they offered to supply passports and to relocate her to Western Australia.

11. There could be a wording that would narrow that.  What could be called for is a record of communication from New South Wales Police to the mother in a period that the father will be able to identify within a few months, in relation to her relocating.  I do not think you need a passport to go to Western Australia, so, perhaps the father asserts that the relocation was to be beyond Australia.  So there are those few legitimate bases on which one could see an adjectival relevance to these proceedings for information that might be held by the New South Wales Police.

12. Again, I am not sure that it is in dispute as to whether the mother made AVO applications.  If that is an agreed fact, we do not need to trouble the police for those records.  I am not sure, as an overall proposition, that the father will have any responsibility to adduce this evidence in the first place, given that, uniquely in relation to contravention proceedings in relation to orders affecting a child, if a contravention is established, then the onus falls to the respondent to establish something, not to the applicant to disprove it.  So, on the basis that a subpoena is presented to the Court in relation to matters that are genuinely in dispute between the parties going to those category of things a subpoena could issue. I will just run through them again so there is a clear record of them.

13. Firstly, that the mother made contact and complaints to the Wollongong Police in April/May of 2009.  Next, that an application was made by her for an AVO two weeks after these proceedings were commenced.  Next, that, one year after that, the mother sought an AVO against the father.  Next, that, on a date that is not identified in the affidavit of the father but will be identifiable by the father in terms of when the mother presumably moved to Western Australia, records of advice to the mother from New South Wales Police in relation to her relocating, an offer from the police to assist with a passport for the mother; and any steps the police took to physically relocate the mother to Western Australia.

14. They are the only matters identified in the evidence that could be the subject of a subpoena.  The subpoena that issued on 20 June 2014 was properly set aside.

15. There are interlocutory proceedings in the context of proceedings in respect of alleged contraventions of orders affecting a child in a case between the father and the mother.  I heard a number of applications this morning.  I gave reasons for judgment in relation to one of them and indicated to the parties that I would give reasons for judgment in relation to the balance this afternoon.  I excused the parties from attendance and indicated that, in the event that there was no appearance by either of the parties, then I would cause the reasons to be taken out and provided to the parties.

16. The appearances this morning were Ms Weate, who is the ICL, Mr Bhalla of counsel, for the New South Wales Police, the father in person, and Mr Autore, solicitor for the mother.  On her application, and without objection on behalf of any other party, Ms Weate was excused.  I heard Mr Bhalla in relation to one issue before the Court this morning, and that issue was concluded by judgment given this morning, and he withdrew.  As to the substantive proceedings, there are a number of applications that the mother be dealt with for contravention; they are next before the Court in the week of 17 November for five days.

17. There are also on foot some applications by the mother that the father be dealt with in a similar way.  There is also an application on foot, albeit not yet returnable for hearing, by the father seeking that the mother be dealt with for contempt.  I will deal with the applications in the order that they were filed, and there are some requests for leave to issue subpoenas made by the father, and I will deal with those applications to the extent that I have not already indicated an outcome. 

18. Firstly, there was an application of the father filed on 16 June 2014 titled “Application in a case to review registrar’s decision”, and it sought a review of a registrar’s decision not to allow subpoenas to issue on the father’s request to a Ms C, a Mr G, who is a solicitor, and to the Department of Family and Community Services.  The applications are said to relate to subpoenas sought to issue in relation to a contempt application filed by the father on 11 February 2014.  A review of a registrar’s decision is a hearing de novo.  The Court can, but need not, take into account the reasons why the decision was made at first instance.

19. Here, the documents provided by the father include a copy of a document, apparently from the Court file, provided by Registrar George in relation to a decision made on 19 June 2014; it is very brief.  The document says:

    The father has sought leave to issue subpoenas to the following persons or entities: [Ms F] and Family and Community Services.  The father sought leave to issue both of these subpoenas in July 2013, and leave was refused on the basis that the information sought is not relevant to these proceedings, but is relevant to a complaint the father wishes to make about the mother.  No review appears to have been sought in relation to that decision.  Leave to issue the subpoenas is refused.

20. In his affidavit, relevantly, the father says – and he attaches a copy of the contempt application, which has been filed, and which is said to commence the proceedings in respect of which the subpoenas should issue.  That application was filed 11 February 2014.  It is a contempt application.  The mother is named as the respondent, and the allegations contained in the application are:

    At 11.46 pm on 2/11/2009 [the mother] did disseminate to the public and to a section of the public, sensitive court documents by way of email that identified [the father] (applicant), [Ms J Collins] (witness) in proceedings.  The Members of the public not a party to the proceedings that were supplied copies of this report included Ms [HH] and Ms [GG] as well as the [JJ] Newspaper for publication and 8 more identities.

1. The second allegation is:

   At 11.34 pm on 25/11/09[the mother] did disseminate to the public and to a section of the public by way of email sensitive court documents namely her affidavit dated 15/11/13.  This identified [the father], (applicant party to proceedings), [S] (daughter, party to the proceedings) –

   obviously, the parties’ daughter is not a party to the proceedings –

   Ms [F] (witness in the proceedings), [Mr B] (witness in the proceedings), [Ms J Collins] (witness in the proceedings), [Ms M Collins] (witness in the proceedings).  The members of the public passed these sensitive court documents included Ms [HH], Ms [GG], The [JJ] news paper and 15 other identities not a party to proceedings.

2. Thirdly:

   [The mother] in 2011 -2013 sent Ms [F] sensitive court documents from SYC4959 of 2009.

3. Fourthly, the application alleges:

   [The mother], in 2011 - 2013 passed sensitive court documents to the Family & Community Services, in relation to proceedings SYC4959/2009. These will be updated once subpoenas are returned. [The mother] has again breached section 121 No1 a,b,c of the act.

4. It is relevant to go to the affidavit that contains the evidence that supports the application.  There are a number of statements, some of them entirely objectionable and inappropriate, in the affidavit, but if I can come to the things that might be relevant to the case.  Paragraph 6:

   This contempt order is about Section 121 of the ACT and in particular No 1 a,b,c of the ACT and the Mothers willingness to continue to breach this ACT and the continuance to disseminate to the public or to a section of the public sensitive court documents, which identifies [the father] (applicant), [S] (daughter), [Ms J Collins] (witness), [Ms M Collins] (witness), [Mr B] (witness) and [Ms F] (witness).

   On 2/11/09 [the mother] hacked into my bigpond account and after reading my emails copied the email addresses.  She then sent a Psychological report she obtained from Ms [D] to Ms [HH] and other identities by way of email.  This clearly identifies myself in proceedings (applicant) and my daughter [Ms J Collins] (witness).

   On the 25/11/09 at 11.34pm [the mother] sent a copy of her affidavit to Ms [HH], Ms [GG], The [JJ] Newspaper, and 14 others. This clearly identifies myself the applicant in proceedings, [S] (child in proceedings), [Ms M Collins] (witness) Mr [B] (witness) [Ms J Collins] (witness) and Ms [F] (witness). This is a direct breach of Section 121 No 1 a,b,c of the act.

   The Mother was given warnings of this breach of the act in my affidavit dated 17/6/11.  The mother had legal representation at this time by Mr Anthony Autore Lawyers.  A copy was served on Mr Autore, used in proceedings before Watts J that year.  A copy was also served in Family Law Courts material served on Mr Autore.

   Through out this time and the next following years, [the mother] continually passed sensitive court documents to Family and Community Services and to Ms [F] which identified myself in the proceedings SYC4959 of 2009.

   Mr [G] Lawyer for the Department of Community Services admitted in … Children’s Court that sensitive material in his possession from the SYC4959 court case had been not only provided to himself but also to Mr [KK] by [the mother].  A subpoena is waiting on approval to be issued for this obvious breach.

   [The mother] contacted Ms [LL] by mistake wishing for her to confirm receipt of sensitive court documents.  Ms [LL] is Ms [F’s] mother.  [The mother] copied Ms [LL’s] phone number from my phone thinking it belonged to Ms [F].  I approached Ms [F] in … Children’s Court on the material.  She said “[The mother] sent me court orders and other material from your Family Law Court hearing”.  I asked her for a copy of it and she said “If you want a copy to subpoena me”.  I wait for approval to file subpoenas for this breach.

   [The mother] was well aware of what she was doing and the breaches.  [The mother] had legal representation for the duration of these breaches.

   In July 2013, I placed an application in a case for such breaches but was instructed by Justice Loughnan to issue subpoenas and then fill out the appropriate application on there return but unfortunately to date has been refused.  I now lodge the contempt application and will ask to amend it once information in subpoena’s is returned.

   I ask after over 23 contravention order applications and an already contempt order application that the Mother be given a custodial sentence and that compensation be paid to the father.

5. He goes on:

   I ask for all costs associated with this application.

   There are huge costs associated with any court actions, not to mention the costs of casual labour to run the farm while I am not in attendance and accommodation plus travel.  I ask for all these costs to be reimbursed by the mother.

6. The father says in the affidavit that supports the application before me, relevantly:

   It has come to the attention of [the father], while attending at the hearing in … Children’s Court of [C], DoCS v …, … 2011, that [the mother] had supplied Ms [F], Mr [G] and [Mr KK] with sensitive Family Law documents.  I now ask to subpoena said documents, and once documents are supplied, to file a contempt order, and this is a violation of the Family Law Court Act.  It is my understanding the correct procedure was to file the contempt order, and then apply for subpoenas.  Loughnan J was quite clear this was not the procedure; he directed the subpoena should be filed first, and then the order appropriate order filed.  I now apply to ask for such subpoenas.

7. Well, where to start?  The father wants to review a decision by the registrar to refuse to issue subpoenas to a Ms F, and Mr G Law Firm, and to the Family and Community Services Department.  There is no evidence that the registrar ever made a decision in relation to Mr G Law Firm.  There is no reference to those lawyers on the minute of orders of 19 June 2014.  It is asserted that Mr G Law Firm was the lawyer for the Department of Family and Community Services; that may be.  In my experience, usually the State Crown appears on behalf of the Department, if not somebody from the Department’s legal branch, but, accepting for the moment that that might be true, and accepting that the effect of this application would be, in the event that that was not the decision made by the registrar, the father is, in effect, now asking for permission to subpoena Mr G Law Firm.

8. Leave is required for a litigant in person to request the issue of a subpoena, and that is the reason for the matter having come before the registrar in the first place.  Subpoenas are serious documents.  They are, in effect, an ex parte order under penalty, that is to say they are a document that issues without hearing from the addressee of the document, and they are documents that compel compliance under penalty.  In other words, if somebody fails to comply with a subpoena, they can be arrested and brought before the court for failing to comply.

9. Other orders can be made as a result of a failure to comply with a subpoena, and, presumably, that is the reason why the rules provide for litigants in person not to be able to cause subpoenas to issue from the Court, and that is why care is needed in considering these applications. The question is, hearing the matter afresh, should the father be permitted to have the Court issue these subpoenas, in his case, in connection with the contempt proceedings. The father says, both in his oral submissions and on the face of the affidavit in support of the application, that the contempt proceedings relate to an alleged breach of s 121 of the Family Law Act.

10. In my view, those proceedings are substantially, if not entirely, misconceived. Section 121 is a provision that creates, among other things, an offence for disseminating certain information to the public or to a section of the public. Breaches of the section are not dealt with by this Court, and can only be instituted by or with the written consent of the Commonwealth Director of Public Prosecutions. The proceedings by or with the consent of the Director of Public Prosecutions are dealt with on indictment in a Court exercising jurisdiction in relation to Commonwealth Criminal Proceedings.

11. The first thing to say is that, on the face of the documents already provided, it is not clear that there is any evidence of a dissemination of any information to the public, or to a section of the public. It would not be a dissemination to the public or to a section of the public to send documents to an individual. It would not be a breach of the section to send documents to the Department of Family and Community Services. It would not be a breach of the section to send documents to the lawyer for that department. It may be that – and there is reference to this in the contempt application – there is some evidence that would be available from those witnesses, in relation to the provision of documents to a newspaper. A subpoena going to such provision might be relevant to a case that might be made under s 121.

12. Just assuming for the moment that that is the situation and that the contempt alleged against the mother is not providing information to any of the named individuals or department that are referred to in the decision of the registrar or are relevant to the questions before me in relation to the named individuals or the Department, I turn to whether it is appropriate to make orders in aid of s 121. In a decision of Xuarez & Vitela [2012] FamCA 574, Forrest J reviewed cases involving the prohibitions in section 121, and his Honour found that, because the Full Court has previously nominated that there must be special circumstances before the Court would grant an injunction in aid of s 121, that suggests that it can be appropriate for the Court to entertain an application in aid of s 121.

13. As to what might constitute special circumstances, former Chief Justice Nicholson addressed this issue in Re South Australian Telecasters Ltd (1998) FLC 92-825, whereby there was an application for an injunction to prevent a television station screening a segment, which, according to the applicant in the case, would constitute a breach of s 121. Ultimately, those proceedings were resolved by an undertaking proffered by the broadcaster, and no injunction was required; however, in his reasons for judgment, Nicholson CJ found:

    The circumstances of the identification of children who are the subjective of the substantive proceedings to justify the Court granting an injunction in aid of section 121.

14. In Xuarez itself, Forrest J found special circumstances to exist in the fact that the publication was via the internet and found that the fact alone of the reach of the internet established exceptional circumstances.  In Schwartzkopff & Fitzgibbon & Barker & Ors (1993) FLC 92-381, the Full Court dealt with contempt proceedings. A registrar of the Court had applied to have the publisher and others of a newspaper dealt with for contempt of Court in respect of material which appeared in the paper.

15. The Full Court said in that case:

    For the prosecution, reliance was placed on section 112AP2(2), which provides that, in spite of any other law, a court having jurisdiction under the Act may prosecute a person for contempt of that court. Whatever may be the scope of that provision, it is our view, clearly undesirable as a general principle to proceed under section 112AP for an alleged contravention of section 121. In In The Marriage of Gibb (1978) FLC 90-405, the Full Court, constituting Pawley, Dovey and Frederico JJ, had to consider an injunction granted by the trial judge restraining the wife in the proceedings from communicating with the press in relation to the pending Family Court proceedings or in relation to the husband’s mode of life or source of income. The Full Court set aside the injunction, remarking at page 77.083:

    Except in special circumstances, it is a highly undesirable situation. It was not intended by Parliament that this court should enforce the provisions of section 121 in relation to restriction of publication of evidence, as section 121(4) specifically provides that proceedings for any offence under the section should not be commenced except by, or with the written consent of, the Attorney-General, and, of course, any such prosecution could not be brought in the Family Court.

16. The Full Court went on in Schwartzkopff.:

    Although this is a somewhat different situation, the underlying principle is equally applicable here. Except in special circumstances it is not desirable that this Court should enforce, by way of contempt or otherwise, the obligations arising under section 121.

    This case, in our view, presents no special circumstances in which to depart from that principle.  It follows that the three respondents have no case to answer on the third charge.  And, in any event, it was indicated, on behalf of the Prosecutor, he would not seek to pursue the third charge in the event that the respondents were convicted on the first charge.  That is of no assistance here.

17. So it comes to this.  For there to be a viable application, even on as it was intended, the father would have to demonstrate that the mother caused to be published to the public, or to a section of the public, an account of the proceedings that identified parties or witnesses or others. 

18. I do not know that that case is made out.  It is a bare assertion in relation to a newspaper.  The father refers to a report from before 2011 which names certain persons.  The question would be whether the publication included something that could be categorised as an account of proceedings.

19. No special circumstance is identified here as to why this Court would be involved in a de facto prosecution of s 121 through its contempt powers in circumstances where the section, on its face, limits the prosecutions of the offences identified in the section in the way it does.

20. So, in my view, there is not a case made out for the issue of the subpoenas in the first place.  But, even if there was, I am not satisfied that the subpoenas are being issued in viable proceedings.  And, on that basis, the application of the father to review the Registrar’s decision, and for the issue of a subpoena to Mr G Law Firm which is addressed in the application he filed on 16 July 2014, are dismissed.

21. A second application was filed on 16 July 2014, and that application sought that the mother supply the name of a doctor or surgeon used for stomach surgery in 2012 and to provide the name of a hospital where the surgery occurred so that a subpoena could issue.

22. This matter was dealt with by Mr Autore obtaining instructions from his client, and the mother informed the father that the surgery was conducted by a Dr Q of Sydney Suburb R, and that the surgery occurred at the O Medical Practice.

23. Nextly, the application sought permission, in effect, for a subpoena to issue to the ANZ Bank for the mother’s records from 2012 to 2014.  Similar subpoenas have issued to two other banks.  Mr Autore, on behalf of the mother, indicated that he did not oppose those subpoenas to issue.

24. The fourth prayer for relief in the application is that the mother’s applications be dismissed.  It literally says, due to the supporting affidavits not meeting the guidelines of the Family Law Court or of the Evidence Act. 

25. I asked the father about this and his argument is that on a previous occasion a significant time was spent taking objections to the mother’s affidavit evidence, and much of the contents of the mother’s affidavit or affidavits were struck out.  It is a laudable aim that one would try and make proceeding time efficient and I will come back to that later, but I explained to him that, what he is asking for is for application or applications not identified in his application to be dismissed on the basis that there is no admissible material supporting the applications.  I indicated that I was not going to undertake that process today, and that he could renew his application for dismissal when the applications themselves come before the Court.

26. He asked for costs of that application and he asked for permission to be heard by phone, and that applies to almost all the applications. 

27. So the aspects of the information about the surgery have been provided.  I indicated to the father that if an application for a subpoena to those entities is made, to the surgeon identified by the mother with an appropriate address, and the clinic, and the subpoena was limited to records identifying the nature of the treatment and the cost of the treatment, then those subpoenas are likely to be issued by the Court without further need for Court appearances.    

28. Nextly, there is an application filed 25 July 2014 called an urgent application in the case to get a second opinion.  The father seeks an order that the mother attend a specialist doctor in ophthalmology to ascertain if she can indeed attend Court in her current medical condition: “that a Court order be made that [the mother] attend within 14 days either [Mr CC] or Dr [DD], specialist ophthalmologist in [EE Medical Practice], [FF] Street, Cairns, for a medical opinion whether [the mother] can attend Court with her current medical condition”. 

29. He asked for an order to be made to issue subpoenas.  This is somewhat misconceived, and now that I have read the documents again I am not quite sure what the purpose of the report is.  Two things seem to be identified.  One is the mother’s fitness to attend at the time the report is made.  But an issue that seemed to agitate the father very much was the basis on which the mother relied on medical evidence to claim that she was not fit to attend on 7 and 8 July of this year. 

30. So I am not quite sure now whether the expert evidence is also sought to try and challenge the opinions expressed in documents provided by the mother in July 2014 as to her medical condition then.  In either event one can see that there may be a relevance to the request, but what it amounts to is the father would like to call medical evidence in relation to the mother.  He is free to do that.  Through her solicitor the mother indicated that she would attend on a medical practitioner in Cairns provided there was no cost associated for her.  I note that she lives in Cairns.

31. I indicated to the father this morning that I would make an order to facilitate that.

32. It is a matter for the father to call the relevant evidence.  In the normal course that would be evidence by way of a written report verified by affidavit in which the doctor identifies his qualifications, identifies what inquiries, information and observations were acted on, and indicates that he has read the Family Law Rules in relation to the obligations of experts.

33. Upon the provision of such a report it would be a matter for the mother’s solicitor as to whether the practitioner was required for cross-examination and the mother’s solicitor would advise the father of that. It would be a matter for the father to make arrangements for the witness to be available at a hearing. 

34. The next issue dealt with in the application is the father says:  “I ask for strong directions to be given to Mr Autore of his conduct”.  It appears from the affidavit of the father that he is aggrieved about certain things that Mr Autore, the mother’s solicitor, has said in Court and otherwise.  Mr Autore, for the mother, has similar complaints in relation to the father.  The father has threatened and may have made complaints via the Legal Service Commissioner in New South Wales. 

35. There is a distressing trend of satellite litigation associated with this case which, as each month passes, gets further and further away from the matter at issue which is time between a young girl and her father.  The evidence is not uncontroversial.  The father makes certain assertions about what has been said, calls on Mr Autore to prove his allegations.  Mr Autore makes certain assertions about the father.  It is not practicable, in the context of interlocutory proceedings, to make findings of fact on a disputed issue of fact without evidence.  I would really encourage the parties to try and focus on something closer to the main issues between them.  It is not for the Court to be at the beck and call of each of the parties in terms of admonishing the other party or their lawyers about various aspects of behaviour. 

1. The next issue raised in the application is about an order said to have been made by Federal Magistrate Walker as her Honour then was, on 20 January 2010 to the effect that that the mother be restrained from serving documents on the father by email unless a Court order allows her to do so. 

2. When I engaged with the parties about this issue it transpired that they agreed that service henceforth, where practicable, will be effected by post, whether it is also done by email.  It seems to me that such is the nature of these proceedings that on occasions it will not be practicable for service to be effected by post.  For example, if there is an urgent application for something to do with the practicalities of a hearing such as attending by telephone.  There might not be time for service to be effected by post, and it is no use having an arrangement that will just automatically cause further adjournments for failure to notify.

3. A second application was filed on 25 July 2014 titled To Review a Registrar’s Decision Not To File Subpoenas.  The father seeks to review a decision by the Registrar not to allow subpoenas to issue to a Dr T of the AB Medical Practice, and a Ms BB, an ophthalmologist, in each case to give oral evidence.

4. I do not believe I have a copy of the reasons of the Registrar, but, again, this is a hearing de novo.  When I raised the issue with Mr Autore, for the mother, he indicated that he would be causing the medical files of those doctors to be before the Court at the adjourned hearing commencing 17 November 2014 and he would make arrangements for those doctors to be available to give oral evidence by telephone should that be required in the course of those proceedings.

5. That deals with the issue and it avoids the problem that the father would be calling those doctors as his own witnesses, and he would not be able to cross-examine them.  It means that it is a matter for Mr Autore to cause the files to be made available.  These would be, presumably, the clinical notes going to or related to the period when an advice was provided by Ms BB, the ophthalmologist, as to the impact for travel on the mother’s eye condition around the July 2014 hearing; and the clinical notes of Dr T in relation to his certificate as to the mother’s unfitness, around that time.

6. Again, it is a matter for Mr Autore, it might be that he is able to obtain those records and produce them.  If not, then he will have to seek that a subpoena issue to secure those records.

7. Just stopping there, and while I am dealing with this issue, I have indicated to the father that I am not sure as to the utility of this evidence, and the evidence of his experts given that there is likely to be no mechanism for the resolution of any conflict between the mother’s treating practitioners and the father’s experts.  Those things are usually dealt with through mechanisms such as a conference of experts, and a statement arising out of the conference of experts and so on.  All of that assumes that it is of some utility in seeking to impugn the medical basis on which the mother did not attend at the earlier hearing.

8. Just to complete that.  The father says that he wants the evidence from the treating practitioners to try and find out if the mother misled the general practitioner, whether the general practitioner had the opportunity to read the ophthalmologist report dated 13 June 2014.  The father says that each of the doctors have indicated they would be willing to give evidence by phone.  So that seems to deal with that issue.

9. I formally note that for the purposes of the hearing commencing 17 November 2014 the solicitor for the mother will cause the clinical notes of Dr T of the AB Medical Practice and Ms BB, ophthalmologist, in relation to the mother’s ability to travel to Court in July of 2014 to be before the Court, and will make arrangements for those doctors to be available to be cross-examined by telephone during the course of that hearing if practicable. 

10. Obviously if one of the doctors is overseas or whatever, that might not be practicable at that time. 

11. I turn then to the father’s application filed 31 July 2014.  That is an application that seeks an order for out of pocket expenses in relation to the hearing in July 2014 due to the mother’s absence.  I indicated to the father that that application would be adjourned to the hearing of 17 November 2014.  I do not know that it will be heard then.  I indicated to the father that there are so many issues going to the question of costs in these proceedings, it is highly unlikely that the costs order will be made until the proceedings are concluded.

12. The second prayer in the application is seeking leave to subpoena Ms BB and Dr T.  The indication is that a subpoena will not be necessary.  If it is necessary, that will be the responsibility of Mr Autore, on behalf of the mother. 

13. A second application filed on 31 July 2014 seeks orders to review the decision of Registrar Crawford in relation to a subpoena to the New South Wales Police.  I dealt with this application and have set out my reasons earlier in this judgment.

14. Since those reasons were given, the father has provided to the registry by email, a draft of a subpoena seeking to address the matters that I indicated would be the limit of the terms of subpoenas that would issue on his application to the New South Wales Police.  The latest draft seeks, between 2008 and 2009, all records, COPS entries and police reports in association with the mother making complaints against the father.  That goes further than the matter that the father raised in his affidavit.  What he said in his affidavit was:

    [The mother] claimed that she contacted and made complaints to Wollongong Police in April/May of 2009 while in a relationship with [the father]. 

15. Mr Bhalla appeared for the police this morning.  He pointed out that a device such as “all records” means that administrative records such as a request for overtime or some entirely peripheral record would have to be searched out and then provided.  The father has identified the period, April/May 2009, as the time he wants to check whether the mother made complaints to the police about him, and yet the subpoena is expressed as all of 2008 and 2009.  In relation to the next issue, said to be August to November 2009, the request is:

    Please supply all records with [the mother’s] attempted AVO applications, police statements against [the father] and dates of.

16. The affidavit says:

    The records show [the mother] attempted to get an AVO on [the father] two weeks after he commenced litigation for a 50/50 shared care arrangement and a relocation order. 

17. Again, a subpoena to the New South Wales Police will show when this AVO was applied for.  Now, the – we identified this morning that the proceedings commenced on 19 August 2009.  The mother volunteered that the application had been made some time before.  At least, that is my record.  So again, the request in the subpoena is too broad.  There is no basis for the subpoena’s reach to go to November 2009.  Again, I do not know what it means:

    Please supply all records with [the mother’s] attempted AVO applications, police statements against [the father] and dates of.

18. That is misconceived in the sense that the police are not required to provide information; only records.  On the basis of what the mother said today, the safest course might be for a subpoena to issue for records from June 2009 to September 2009 seeking a copy of any police statements or records of interview, or notes in relation to a request on behalf of the mother for an apprehended violence order against the father including, of course, the copy of any such application.

19. The third category is said to be August to November 2009, and seeks a copy of all records, COPS entries, payments made on behalf of the mother in relation to the relocation of the mother in July/August 2009.  The evidence is:

    [The mother] gave evidence on 19 February 2014 before Justice Loughnan.  New South Wales Police advised her to relocate, offered to supply passports and indeed did relocate her to Western Australia.

20. Perhaps in that regard, the subpoena should seek COPS entries and evidence of advice given by the New South Wales Police to the mother to relocate, including any offer to supply passports, and any records associated with action by the Department – by the Police Service to assist the mother to relocate to Western Australia.  Again, the Court is in a position whereby it is trying to make sense of some aspect of the father’s case.  The father insists on asserting that the Court has required him to take certain steps in the management of his case, and he knows that the Court is precluded from giving him advice as to the management of his case.

21. Importantly, by indicating that a subpoena would issue if it was drafted in the way that is identified, is not to mean that the Court considers that the subpoena is relevant to the proceedings.  In that regard, as I observed this morning, these are proceedings where the father bears the obligation of establishing a breach of orders and the mother bears the onus of establishing her excuse.  It seems to me that in many ways, the father is trying to establish something that is exclusively the mother’s responsibility, and while it can be that it falls to an applicant to rebut evidence of a reasonable excuse, it is not apparent to me that the evidence and the procedural steps being taken by the father are sensible or necessary. 

22. The other thing to say is that in each case, subpoenas excite the issue of costs.  The addressee of a subpoena is entitled to conduct money before complying with the subpoena and can claim witness expenses for the work done necessary to comply with the subpoena.  As I indicated to the father this morning, if the subpoena had issued as he had drawn it in relation to the New South Wales Police originally, it could have been that he would have been up for hundreds of thousands of dollars, while the Police Department were put to an exhaustive search over many years of their records.

23. I gave reasons earlier today for leaving in place the registrar’s decision in relation to the original subpoena. 

24. Next, there is an application in a case filed 13 August 2014.  The father seeks an order that the Court have the audio transcripts before Coleman J dated 30 August 2012 before the Court for the November 17 hearing.  The father indicates that he will request that the audio transcripts be played to the mother.  The father says that there is a CD-ROM with the relevant passage and it is available.  I have indicated to him that in that event, arrangements will be made to play that record.  He said there is a short excerpt and that it will not take long. 

25. His documents say it is about four minutes, but he says it was a bit longer than that, before me.  Again, I must say the philosophy behind this application as I understand it is that an appeal judge counselled the parents, and particularly the mother, in relation to compliance with the orders.  Orders that the father says she has contravened.  Even if he is able to establish all of that, it is difficult to see how that would add to the father’s case that the mother be dealt with for a breach of Court orders.  I suppose there could be some relevance based on an excuse a respondent claimed, but it is difficult to see what it adds to a breach of an order of a Court that a judge countenanced somebody against breaching the order of the Court.  Again, that is a matter for the father’s judgment in relation to the proceedings. 

26. Those are the applications before the Court and except as I have indicated, the applications in a case are otherwise dismissed.

27. Nextly, the father sought the issue of a subpoena to a Mr W.  It is a subpoena to give evidence.  I have said to the father that the problem with that is it that it is the father’s obligation to call evidence from his witnesses.  He should have obtained an affidavit from Mr W.  If Mr W refuses to give him an affidavit, then it would invariably cause an adjournment application if Mr W gives evidence-in-chief, of which the mother has no notice.  Therefore I told the father to obtain a proof of evidence of Mr W.

28. Mr Autore helpfully reminded us that that needs to be a summary of what Mr W is going to give evidence about, not a summary of the father’s view about what happened, and that is certainly true.  So I indicated to the father that he should obtain a proof of evidence, provide the proof evidence to Mr Autore and to the Court, and when that is received, consideration will be given again to the issue of a subpoena to give evidence to Mr W.  Mr Autore indicated that his client would agree to Mr W appearing by telephone.  So that addresses the problem of Mr W, I think, being a resident of Western Australia. 

29. And finally, there was the subpoena to the ANZ Bank, and I have already indicated that there was no objection to the issue of that subpoena and that that subpoena will issue.  As to a return date, the father has included on the documents, 17 November.  That is of no value to anybody.  We cannot have Court time being taken up going through records.  So that subpoena will be made returnable on an earlier date.  The father indicated he is not available until after 15 September, and I said to him that I would find a subpoena date, make it returnable that date.  He has to be available on that date in case there is any further objection to a subpoena.  That will apply to the police subpoena and to the ANZ Bank subpoena.

30. These are just some of the interlocutory applications that have attended the contravention proceedings which have followed parenting proceedings in relation to the parties’ daughter.  And as I said to the parties earlier today, at each point there is a further application or a further controversy resulting from each substantive controversy.  There is no application before the Court that the father be declared vexatious or that an order be made interfering with his right to access the Court. 

31. As I have expressed to the parties before, I am greatly concerned that focus has been lost on the main issue, and the more interlocutory activity that occurs, the less likely it is that the substantive proceedings will be completed.  I think there are now parenting proceedings on foot.  Ms Weate has been appointed to represent the parties’ daughter.  The administrative burden on the registry, on my chambers, and the impost on Court time, let alone the cost and inconvenience to the parties, are becoming scandalous. 

32. The father has made reference to cost claims that he will make in the substantive proceedings and the contravention proceedings, and in these interlocutory proceedings.  He should not assume that he will be successful with any of those applications.  He, himself, may be the subject of costs orders.  There will come a point, I would think, where the burden on the taxpayer, through the cost to Legal Aid, the cost to the Court, is such that an end will have to be brought to these proceedings. 

33. I would again encourage the parties to try and focus on the main issues, and in my view, for what it is worth, the best chance at a final outcome in relation to these proceedings is probably in the parenting proceedings that have now been commenced.  I indicated to the parties that I would publish these reasons and arrangements will be made to do that.

I certify that the preceding eighty eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 4 September 2014.

Associate: 

Date:  18 September 2014