Conway and Clivery

In the Family Court of Australia, Mr Conway (the applicant father) sought leave to issue a subpoena to the Child Dispute Services Brisbane Registry. The dispute concerned allegations that important information, including disclosures of abuse by the child and other relevant material, had been omitted from reports prepared by family consultants, Ms D and Mr P. The father contended that these omissions might involve improper collusion between Ms D and the Independent Children's Lawyer. Ms Clivery (the respondent mother) opposed the application, arguing it was intended solely for delay.

The court was required to determine whether to grant the father leave to issue a subpoena for documents held by the Child Dispute Services, notwithstanding Rule 15.18(b) of the Family Law Rules 2004, which generally prohibits subpoenas for documents held by the Court. The court also needed to consider the mother's concerns about potential delay and balance these with the father's right to explore serious allegations relevant to the best interests of the child.

Justice Murphy granted the father leave to issue the subpoena, dispensing with Rule 15.18(b) due to the specific and unusual circumstances. The court reasoned that the father had particularised his allegations with specificity regarding content and dates, and these serious matters warranted exploration in the parenting proceedings. To mitigate concerns about delay, the court imposed a tight timetable for the production of documents and subsequent affidavit filings, and expedited the listing of the matter for final hearing dates. The subpoena was narrowed to specific categories of documents, excluding those already filed by the parties, and focused on notes and documents relating to communications and consultations involving the family consultants and the Independent Children's Lawyer, as well as any complaints made by the father.