Conway and Clivery

[2012] FamCA 559

FAMILY COURT OF AUSTRALIA

CONWAY & CLIVERY [2012] FamCA 559

FAMILY LAW – PROCEDURAL – application by the father to be granted leave to issue a subpoena to the Child Dispute Services Brisbane Registry of the Family Court of Australia – consideration of rule 15.18, Family Law Rules 2004 – where the father alleges important information has been omitted from Family Reports – where the father has particularised the alleged omissions with specificity in terms of content and date – where leave granted to issue subpoena.

Family Law Act 1975 (Cth)

APPLICANT: Mr Conway

RESPONDENT: Ms Clivery

FILE NUMBER: CAC 768 of 2008

DATE DELIVERED: 9 July 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 9 July 2012

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person by phone

Orders

IT IS ORDERED THAT

1. In the particular circumstances of this case, Rule 15.18(b) of the Family Law Rules 2004 be dispensed with.

2. Leave be granted to the father to issue the subpoena filed 8 March 2012 but in respect of the request for documents, as amended by these orders in the following paragraphs of these orders.

3. The Manager of the Child Dispute Services Brisbane Registry of the Family Court of Australia, cause to be produced the documents outlined in the following paragraphs, in answer to the subpoena filed by the father, by 4.00pm on 19 July 2012.

4. Each of the parties is granted leave to inspect but not copy all such documents produced pursuant to this order.

5. The father shall file and serve any additional affidavit upon which he intends to rely consequent upon the receipt of the said documents by not later than 4.00pm on 3 August 2012.

6. The mother shall file and serve any affidavit strictly in response to the said affidavit by not later than 4.00pm on 17 August 2012.

7. The matter be listed to the callover of Justice Murphy to be held at 9.00am on Wednesday 22 August 2012 for the allocation of final hearing dates and the mother and father are granted leave to appear by phone at such hearing.

   AND IT IS NOTED THAT: The best estimate of each of self-represented parties in this case is that the trial may take 5 days.

8. The hearing before a Registrar on 1 August 2012 be vacated and a compliance hearing be listed on a date to be advised, prior to the callover, and unless otherwise ordered, such hearing shall be by phone.

9. The amendment to the subpoena filed by the father on 8 March 2012, by reference to the schedule of the subpoena, shall be as follows:

   (a)All documents produced to or by Ms D, Family Consultant and Mr P Family Consultant, as a consequence of Ms D’s appointment as a Family Consultant in this matter file number CAC768/2008, but not so as to include any documents filed in these proceedings by any party and in particular:

   (i)any notes recording the details of any telephone or other communication between the Independent Children's Lawyer and Ms D and each of the parties and Ms D;

   (ii)and notes recording the details of any telephone or other communications between the Independent Children's Lawyer and Mr P and each of the parties and Mr P;

   (iii)any notes or documents relating to any consultations between Ms D and Mr P whereby a consultation was arranged involving the father, the mother, the child and Ms D on 2 November 2011

   (iv)any notes or documents relating to any complaints made in respect of either Ms D or Mr P by the father in these proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Conway & Clivery 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 BRISBANE

FILE NUMBER: CAC 768 of 2008

Mr Conway

Applicant

And

Ms Clivery

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Rule 15.18(b) provides that a Court must not issue a subpoena for production of a document in the custody of the Court or another Court. The rationale behind that rule is, I think, self-evident. If parties to proceedings were permitted to issue subpoena in respect of the plethora of documents that find their way into courts during the course of the proceedings, the system would completely bog down.

2. Documents held by the Court are, in the usual course of events, and particularly in parenting proceedings where the Court is directed by the Family Law Act 1975 (Cth) (“the Act”) to take account of specific matters in ascertaining the best interests of the children, highly likely to be utterly irrelevant to those issues.

3. In this particular case, which has a lengthy and unattractive history, specific allegations are made by the father, who represents himself and who has prepared material, which, on its face, is also prepared by him, in respect of specific matters that might be seen to directly relate to the best interests of the subject child, L (“the child”). Those issues might be seen to be exacerbated by the fact that the child is 12 and that proceedings concerning her have now been before the Court periodically and in one form or another for a considerable period of time.

4. Of direct relevance to the instant application is the fact that specific allegations are made with respect to what are said to be disclosures of abuse made by a child aged about 12 which, as I understand it, are asserted by the father as having not been recorded in reports prepared by family consultants employed by the Court and where, more generally, allegations are made by the father that other directly relevant material (as he would have it) has been obtained by each of the family reporters, Ms D and Mr P, but has not been included in reports.

5. The matter becomes, potentially, even more serious in circumstances where the father apparently alleges that the omission of those matters from the reports may involve, in some form, improper collusion between, at the least Ms D and an Independent Children's Lawyer, Ms Fotheringham.

6. These are very serious matters and, to the extent that they might ultimately result in findings they ought be properly explored and the father ought have the capacity to explore them within the course of parenting proceedings.

7. The mother says that she has concerns that these steps by the father are effectively engaged in only for the purposes of delay.  She points to the length of time during which directions have been extant in respect of preparing the matter for trial and she is, understandably enough, concerned that any further delay will potentially prejudice her position, specifically in light of the fact that she hasn’t seen the child for some considerable time.

8. Her position in that respect might be seen to be understandable and it is, of course, directly relevant to any application of this type to take into account whether there is any delay and more particularly whether the purpose of the application is for delay.

9. It might ultimately be found by a trial judge that this is in fact the purpose of the application – or that other mischief attaches to it – but, on the face of the material before me, the assertions made are particularised, are set out by reference to specific dates and are made by reference to specific assertions of a child of relatively mature years.

10. Of course, it goes without saying that, if a trial judge came to the conclusion that the very serious allegations made by the father were made mischievously or worse, and/or if the application to seek the documents to which the subpoena is directed is made mischievously or worse, then one would imagine that that would have a very significant bearing upon some, at least, of the findings, that might be relevant in the ultimate parenting proceedings.  The s 60CC consideration relating to the responsibilities of parenthood exhibited by each parent springs to mind as an example.

11. Because of the seriousness of the matters to which the subpoena is directed, I propose to dispense with rule 15.18(b) in the specific and unusual circumstances of this case and to grant leave to issue a subpoena to the manager of Child Dispute Services in respect of documents held in respect of the two family consultants to whom I have referred.

12. I have, as earlier indicated during argument, decided to narrow somewhat the broad terms of the subpoena in accordance with the ordinary law relating to the issue of subpoena and the need for them to be directed only to documents which are relevant. 

13. I have, however, taken note of what the mother says about the potential for delay and I propose to attempt to accommodate that, and balance it with the interests of justice to which I have earlier referred, by setting a tight timetable for the production of the documents by the Child Dispute Services and to reinforce the tight timetable foreshadowed in earlier directions.  Thus, the father will have 14 days, but only 14 days from the production of the documents, to complete his affidavit and the mother will have 14 days, but only 14 days, to file a response to that affidavit.

14. Thereafter, so as to attempt to best expedite the final hearing of this trial, notwithstanding the extraordinary call on limited resources of the judges in this registry, I propose to direct that the matter be listed to my callover of matters awaiting trial at 9.00am on Wednesday, 22 August 2012 – that is to say five days after the conclusion of the dates upon which the filing of the affidavits to which I have just referred should be completed.

15. For those reasons I make the orders earlier indicated.

16. I will vacate the directions hearing which was to take place before the Registrar at 2.00pm on 1 August.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 9 July 2012.

Associate: 

Date:  20 July 2012