Darley and Darley (No. 2)
[2020] FamCAFC 193
•6 August 2020
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 | of | 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 |
| 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.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Darley & Darley (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Numbers: NOA 9 of 2019; NOA 39 of 2019 and NOA 83 of 2019
File Number: BRC 2317 of 2013
| Ms Darley |
Applicant
And
| Mr Darley |
Respondent
And
| Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
Ms Darley (“the mother”) has instituted three appeals from three separate sets of orders made on 12 December 2018, 5 April 2019 and 23 August 2019 respectively. In earlier reasons for judgment I have delivered in this matter I referred to those three appeals, for convenience sake, as “the parenting and property appeal”, “the contravention appeal” and “the s 102QB appeal” (Darley & Darley [2019] FamCAFC 238 (“2019 Reasons”) at [1]–[3]). I will continue to refer to them as such throughout these reasons. By order made on 15 June 2020, the appeals are to be heard together.
Before me today is an Application in an Appeal filed on 21 May 2020 by the mother seeking leave to issue a subpoena to Medicare for the production of certain documents in relation to health care received by Mr Darley (“the father”) between 1 January 2006 and the present day as well as an order granting the mother leave to rely on her Summary of Argument in relation to the parenting and property appeal which does not comply with Practice Direction 1 of 2017 (“the Practice Direction”). The father has advised the Registry that he does not seek to participate in the hearing of this application which I interpret to mean that he neither consents to nor opposes the application.
I will deal with each matter in turn.
The subpoena issue
This is the third set of orders and reasons I have been required to make and deliver in relation to the mother’s attempt to cause the issue of a subpoena to Medicare seeking the production of the father’s healthcare records. The reason for the mother seeking to issue such a subpoena is to procure the necessary documentation to form the basis for an Application in an Appeal to adduce further evidence in support of Ground 11 of her Further Amended Notice of Appeal filed on 23 April 2020 which reads as follows:
The Judge erred in law by accepting on face value what the Father said as in paragraph 191 of the judgement by failing to Order the Father to provide his medical records for the subpoena as requested by the Mother on 10 January 2018 where those records would have shown he was diagnosed with a mental illness & on medication for it & was hospitalised on two occasions for it & the mental illness was relevant to a decision in the best interests of the children.
(As per the original)
The mother originally filed an Application in an Appeal on 2 August 2019 which sought, inter alia, the following order:
5.That pursuant to Rule 22.34 of the Family Law Rules 2004 that leave be granted to issue subpoenas to Medicare and any practitioners eg Doctors referred to in the Medicare subpoena for the Respondent.
I dealt with that application in this way (2019 Reasons at [31]–[33]):
31.The mother sought leave to issue a subpoena to Medicare and to medical providers to the husband disclosed by the Medicare records.
32.It seems to me that fairness dictates that the mother have some opportunity to establish the challenge she seeks to mount on appeal and at least the opportunity to formulate an application for further evidence to be adduced on appeal concerning medical records. However, the application as framed by the mother is far too
open-ended in terms of the number of subpoenas that she might seek to have issued and the relevance of any records any identified doctor might be able to provide.
33.On that basis, leave was given to the mother in the first instance to issue a subpoena to Medicare to obtain details of the identity of medical providers to the father and the question of any further subpoenas can be revisited on the relisting of this part of this application as ordered on 9 January 2020.
(Emphasis added)
The relevant order I made on 4 December 2019 (my reasons for which were delivered on 6 December 2019) was worded thus:
(5)Leave is given to the applicant mother to issue a subpoena for the production of documents directed to Medicare to ascertain the identity of the respondent father’s treating medical professionals to be returned on or before 4.00 pm on 8 January 2020.
Unfortunately, the making of that order did not put an end to the issue and, on 12 December 2019, the mother filed an Application in an Appeal seeking, amongst others, the following order:
2.That leave be granted to issue a subpoena to Medicare for production of documents in the following terms:
Including but not limited to:
(a)A Medicare claims history or Medicare Benefits Scheme (MBS) summaries 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.
(c)Pharmaceutical records summary detailing the scripts that have been dispensed to [Mr Darley] from 1 January 2006 to the present day.
(d)Notice of Past Benefits (NoPB) claimed by [Mr Darley] from 1 January 2006 to the present day.
(e)Medical Service Provider reports in relation to [Mr Darley] from 1 January 2006 to the present day.
(f)All documents, records, reports and writings from your custody or control pertaining to [Mr Darley] from 1 January 2006 to the present day.
(As per the original)
When the application came before me on 9 January 2020, it became apparent that the mother had attempted to submit a subpoena in identical terms on two occasions which were both rejected by the Appeals Registrar as not complying with the 4 December 2019 order, as was plainly the case.
I reiterated to the mother that the terms in which she sought to issue the subpoena to Medicare were too broad but I endorsed correspondence sent by the Appeals Registrar that paragraph 2(e) of the subpoena she sought to issue was in conformity with my 2019 Reasons and, out of an abundance of caution, I varied my 4 December 2019 orders such that Order (5) now reads as follows (Darley & Darley [2020] FamCAFC 4):
(5)Leave is given to the mother to issue a subpoena for the production of documents directed to Medicare for medical service provider reports in relation to [Mr Darley] from 1 January 2006 to the present day.
I reminded the mother that this was a necessary first step to establish a genuine forensic purpose to potentially issue further, and more specific subpoena, should the Court be satisfied such subpoenae were warranted.
A subpoena in the terms expressed in Order (5) was ultimately filed on 21 February 2020 and a hard copy of the sealed subpoena posted to the mother. However, unfortunately due to the Court not having an up to date address for the mother, the sealed subpoena was returned to the Registry and a copy of same was ultimately emailed to the mother on 14 May 2020. The mother served the subpoena via email on Medicare that same day.
In her affidavit filed in support of this application on 21 May 2020, the mother deposes to Medicare advising the mother that “they cannot comply with the terms of the subpoena as the terms allowed were not in relation to the patient and it is of no utility to me and they cannot comply”. The relevant email is annexed to that affidavit and relevantly reads as follows:
Dear [Ms Darley],
Thank you for your time over the phone this morning to discuss the subpoena served on Services Australia (the agency).
As discussed, the Medical Service Provider report required to be produced under the subpoena would include information in relation to a specific provider rather than a patient.
You have confirmed that this is not the information you are seeking. As agreed, the agency will not provide a response for this subpoena.
…
(Emphasis added)
The mother relies on this asserted inability on Medicare’s behalf to found her claim for a subpoena seeking patient specific information. However, it is immediately apparent upon reading that email that, notwithstanding the mother’s claims that Medicare “cannot comply with the terms of the subpoena”, it is the case that Medicare could comply, as evidenced in the description of the Medical Service Provider report being one “required to be produced under the subpoena” but that it was the mother’s informing Medicare that she was actually seeking patient specific information which resulted in Medicare’s advice that it could not comply with such a request.
Regard need only be had to the terms of Order (5) as varied by me and the reasons I delivered for such variation on 9 January 2020 to see that the mother was permitted only to subpoena the Medical Service Provider report which would, as the mother was informed by Medicare, “include information in relation to a specific provider rather than a patient”.
It was this subpoena which I originally gave leave to be issued, on 4 December 2019, as a first step to enable the mother and the Court to identify any further relevant subpoenas which may need to have then been issued to specific medical care providers. Had the mother complied with the orders I made on 4 December 2019, the next step, as I alluded to in [33] of my 2019 Reasons, was to assess the need for any further subpoenas on 9 January 2020.
In any event, the Court is now faced, 12 months after the mother’s original application to issue a subpoena, with an application which seeks a subpoena to issue seeking production of documents in the following terms:
1.That leave be granted to issue a subpoena to Medicare for production of documents in the following terms:
Including but not limited to:
a.Medicare Benefits Scheme (MBS) summaries claims history listing all items for which a Medicare Benefit has been claimed;
b.Pharmaceutical Benefits Scheme (PBS) summaries claims history listing all items for which a PBS Benefit has been claimed;
For [Mr Darley] … from 1 January 2006 to date.
Obviously enough significant time has elapsed since the mother’s first application. It is an unfortunate fact that the effluxion of that time and the need to have these appeals heard and determined is an important consideration. Moreover, the subpoena now sought by the mother appears to be narrower in its scope as compared to earlier versions sought by the mother as dealt with in my earlier reasons. Moreover, importantly there is now evidence sourced to Medicare that the two summaries now sought by subpoena are in conformity with that which Medicare routinely provides. Importantly, as already noted, the father does not participate in this hearing to raise any opposition to a subpoena issuing in the terms now sought to obtain from Medicare the two summaries now sought. Likewise the Independent Children’s Lawyer (“the ICL”) does not raise any opposition to the issue of subpoena in these terms.
Finally as already referred to, it is to be noted that the subject parenting orders were made on 12 December 2018. The mother’s appeals including her appeal from the parenting orders are unlikely to be listed before the December 2020 sittings of the Full Court to be held this year. Obviously by then some two years would have elapsed since the subject parenting orders were made. It is important that the hearing of the appeals not be delayed.
There would be little prospect of this Court having the opportunity to revisit the topic of subpoenas in this matter between now and December 2020. I reiterate that it will be entirely a matter for the Full Court hearing these appeals as to whether the mother should be permitted, by any application to that Court, to adduce any further evidence as to facts on the appeal. I reiterate that the fact that this Court grants an application for the issue of subpoena and the fact that documents may be produced in response, does not mean that those documents will be before the Full Court for the purpose of the appeals. That Full Court will need to consider any application advanced by the mother to admit any further evidence with respect to the appeals.
For these reasons I will grant the application of the mother to issue a subpoena in the limited terms now sought in the form attached to her affidavit.
Leave to rely on Summary of Argument
The second aspect of the mother’s application relates to her Summary of Argument filed on 23 April 2020 in relation to the parenting and property appeal. Though it has been filed by the Registry, the mother was informed by email dated 24 April 2020 that it does not comply with paragraphs 4.1(c) and 4.1(d) of the Practice Direction in that:
a)The Summary of Argument is greater than 15 pages in length; and
b)The font size is smaller than 12 points and does not have 1.5 line spacing.
There can be no doubt that the mother was aware of these requirements. After filing her Notice of Appeal in the parenting and property appeal on 9 January 2019, procedural orders were made by the Appeals Registrar, which highlighted the need for compliance with the Practice Direction, on 8 April 2019 and 4 November 2019. Both of which orders included the relevant Practice Direction attached.
Moreover, in both the contravention appeal and the s 102QB appeal the mother has already filed her Summaries of Argument, both of which comply with the Practice Direction. That is significant both in the sense that the mother is clearly capable of complying with the Practice Direction but also in that she has not been restrained to filing only one Summary of Argument addressing all three appeals notwithstanding that they are to be heard together.
The mother’s Summary of Argument the subject of this application runs to a total of 32 pages of small, compact prose which is both hard to read and with respect difficult to understand. The mother argues that she ought be granted leave to rely on her summary notwithstanding the noncompliance because it is, on her case, unreasonable and a denial of procedural fairness to expect her to contain her argument to 15 pages where there is a large amount of material to address.
Having read the 32 pages, it is apparent to me that much of what is contained in the document is irrelevant to the task of establishing error on the part of the trial judge and really amounts to a discursive attempt at re-running, on appeal, the same arguments advanced at trial as opposed to addressing any alleged errors made by the trial judge. I note that the ICL submits that the mother should be required to comply with the usual requirements as to the Summary of Argument filed.
As against this the mother submits that she is a self-represented person and if she is permitted to rely upon her present Summary of Argument it will significantly limit any oral submissions she needs to make upon the hearing of the appeals. The effect of her submission today is that she would effectively rely upon this Summary of Argument with its extended length rather than mounting any oral arguments on appeal for the purpose of the hearing of the appeal at least so far as the parenting and property appeal is concerned.
I have significant reservations about the grounds of appeal or at least some of them that the mother seeks to rely upon in the parenting appeal. As it seems to me attempts could be made by the mother to confine her grounds of appeal and thereby confine the Summary of Argument accordingly addressing purely errors contended for on the part of the trial judge rather than advancing arguments or a re-run of arguments at trial again on appeal.
However, given the mother’s assurance in effect that if she is permitted to rely upon a more extensive Summary of Argument it will save time for the Court and for the other parties because it will not then be necessary for her to advance oral arguments in addition to her written summary, I am minded to grant that application.
It will obviously be a matter of record in these reasons that the mother has indeed confirmed to the Court that permission for a Summary of Argument of extended length and scope outside the normal requirements means, for the reasons already stated, that the hearing of the appeals might be more confined, at least so far as the parenting and property appeal is concerned.
I therefore make the order that the orders sought by the mother in her Application in an Appeal filed on 21 May 2020 be granted.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Kent delivered on 6 August 2020, edited to correct grammatical errors and some infelicity of expression.
Associate:
Date: 6 August 2020
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