Darley and Darley (No. 2) - [2020] FamCAFC 193

FAMILY COURT OF AUSTRALIA

DARLEY & DARLEY (NO. 2)

[2020] FamCAFC 193

FAMILY LAW – APPLICATION IN AN APPEAL – SUBPOENA – Where the mother has three appeals on foot – Where part of the mother’s case is that the father suffers from mental health issues not properly considered by the trial judge – Where the mother seeks leave to cause the issue of a subpoena to Medicare in broader terms than previously allowed – Where the mother argues Medicare advised her that such broader terms corresponds with subpoenae Medicare routinely comply with – Where the appeal of the mother’s three appeals is likely to be heard in December – Where, by that time, it will have been two years since the making of the parenting orders under appeal – Where the mother’s appeal cannot proceed without the subpoenaed documents – Where the father did not wish to participate in the hearing – Application granted.

FAMILY LAW – APPLICATION IN AN APPEAL – SUMMARY OF ARGUMENT – Where one of the mother’s Summaries of Argument does not comply with Practice Direction 1 of 2017 – Where the mother nonetheless seeks leave to rely on that Summary – Where the Summary ought be no more than 15 pages in length in size 12 font – Where the mother’s Summary is 32 pages of small, compact prose which is both hard to read and understand – Where the mother stated that reliance on her Summary of Argument will largely remove the need for her to make oral submissions at the appeal hearing – Application granted.

Family Law Act 1975 (Cth)

Family Court of Australia, Practice Direction No. 1 of 2017 – Conduct of Appeals, 22 December 2016

Darley & Darley [2019] FamCAFC 238
Darley & Darley [2020] FamCAFC 4

APPLICANT:

Ms Darley

RESPONDENT:

Mr Darley

INDEPENDENT CHILDREN’S LAWYER:

Norman & Kingston Solicitors

FILE NUMBER:

BRC

2317

2013

APPEAL NUMBERS:	NOA	9	of	2019
NOA	39	of	2019
NOA	83	of	2019

DATE DELIVERED:

6 August 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

6 August 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

18 December 2018;

5 April 2019; and
23 August 2019

LOWER COURT MNC:

[2018] FamCA 1086;
[2019] FamCA 206;
[2019] FamCA 595

REPRESENTATION

THE APPLICANT:

In person by telephone

THE RESPONDENT:

No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Kingston, Norman & Kingston Solicitors by telephone

Orders

The Applicant mother be granted leave to cause the issue of a subpoena to Medicare in the following terms to be returnable on 28 August 2020:
(a)A Medicare claims history or Medicare Benefits Scheme (MBS) summaries claims history listing all items for which a Medicare benefit has been claimed by[Mr Darley], from 1 January 2006 to the present day.
(b)A Pharmaceutical Benefits Scheme (PBS) Summaries claims history listing all items for which a PBS benefit has been claimed by [Mr Darley], from 1 January 2006 to the present day.

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.

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Details

Case: [2020] FamCAFC 193
Decision Date: 6 August 2020

CaseChat Overview and Summary

The case of Darley and Darley (No. 2) involves the mother and father of a child, who are in the midst of three ongoing appeals related to parenting orders. The mother seeks to subpoena Medicare records to support her contention that the father's mental health issues were not adequately considered by the trial judge. Additionally, she requests permission to rely on a Summary of Argument that exceeds the permissible length and is difficult to read, as she argues it will reduce the need for oral submissions at the appeal hearing.

The legal issues before the court included whether the mother should be granted leave to issue a subpoena to Medicare in broader terms than previously allowed, and if the mother should be permitted to rely on a Summary of Argument that does not comply with the requirements set out in Practice Direction 1 of 2017. The mother argued that the broader subpoena terms correspond with those typically complied with by Medicare, and that the non-compliant Summary of Argument should be allowed as it would largely eliminate the need for oral submissions.

The court granted both applications. It found that the mother's appeal could not proceed without the subpoenaed documents, and that the appeal would likely be heard in December, which would be two years since the making of the parenting orders under appeal. The court also accepted the mother's assertion that reliance on her Summary of Argument would largely remove the need for her to make oral submissions at the appeal hearing, despite it not complying with the Practice Direction. The court ordered that the mother be granted leave to issue a subpoena to Medicare in the specified terms and that she be granted leave to rely on her Summary of Argument filed on 23 April 2020.

Orders

Orders of the court

The Applicant mother be granted leave to cause the issue of a subpoena to Medicare in the following terms to be returnable on 28 August 2020:

(a) A Medicare claims history or Medicare Benefits Scheme (MBS) summaries claims history listing all items for which a Medicare benefit has been claimed by[Mr Darley], from 1 January 2006 to the present day.

(b) A Pharmaceutical Benefits Scheme (PBS) Summaries claims history listing all items for which a PBS benefit has been claimed by [Mr Darley], from 1 January 2006 to the present day.

The parties have leave to inspect and copy the material produced pursuant to the subpoena outlined in Order (1) herein.

The Applicant mother be granted leave to rely on her Summary of Argument filed on 23 April 2020 in NOA 9 of 2019.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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