Darley and Darley (No 3) - [2020] FamCAFC 289

FAMILY COURT OF AUSTRALIA

DARLEY & DARLEY (NO. 3)

[2020] FamCAFC 289

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – LEAVE TO ISSUE SUBPOENAS – Where the mother was given leave to issue a subpoena to Medicare to obtain a list of the father’s treating medical professionals – Where the mother now seeks leave to issue subpoenas to three medical practices identified by records produced from Medicare as having provided medical treatment to the father – Where the subpoenas sought by the mother are unconfined as to any timeframe at all – Where the terms of the subpoenas sought are far too broadly drawn and expressed – Where the mother agreed to leave being granted to a subpoena more limited in scope than initially sought – Where the father did not wish to participate in the hearing – Application granted.

Family Law Act 1975 (Cth) ss 94, 102QB

Family Law Rules 2004 (Cth) r 22.34

Charisteas & Charisteas and Ors (2019) FLC 93-884; [2019] FamCAFC 2
Darley & Darley [2019] FamCAFC 238
Darley & Darley [2020] FamCAFC 4
Darley & Darley (No.2) [2020] FamCAFC 193

APPLICANT:

Ms Darley

RESPONDENT:

Mr Darley

INDEPENDENT CHILDREN’S LAWYER:

Norman & Kingston Solicitors

FILE NUMBER:

BRC

2317

2013

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

DATE DELIVERED:

19 November 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

19 November 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

Orders

The Applicant mother be granted leave to cause the issue of subpoenas directed to:
(a)       K Town Medical Practice;
(b)       UU Town Medical Practice; and
(c)       C Town Medical Practice
in the following terms:
Any medical records or documents held relating to any diagnosis and/or treatment of any mental health or like medical condition, from and including the year 2006, in relation to [full name and various addresses of the father].
The parties be granted leave to inspect the documents produced under the subpoenas referred to in Order (1) hereof, subject to any objection raised by any recipient of any of the subpoenas.

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. 3) 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 Number: 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

On 12 December 2018 Hogan J made final parenting and property settlement orders in proceedings between Ms Darley (“the mother”) and Mr Darley (“the father”) and the Independent Children’s Lawyer (“the ICL”) appointed to independently represent the children’s interests in the parenting proceedings.
Appeal NOA 9 of 2019, conveniently referred to as “the parenting and property appeal”, is the mother’s appeal from those orders.
The parenting and property appeal has been consolidated with two other appeals brought by the mother from orders made by Carew J on 5 April 2019 and 23 August 2019 respectively, with respect to a vexatious proceedings order made against the mother pursuant to s 102QB of the Family Law Act 1975 (Cth) (“the Act”). Appeal NOA 39 of 2019 and appeal NOA 83 of 2019 are those respective appeals.
The present Application in an Appeal by which the mother seeks leave to issue subpoenas relates to the parenting and property appeal.
I have on three previous occasions delivered reasons for judgment on Applications in an Appeal brought by the mother relating to the issue of subpoenas (reasons delivered 6 December 2019; 9 January 2020 and 6 August 2020 respectively).[1] I adopt, without unnecessary repetition of them in full, the reasons for judgment previously delivered as referred to on the topic of subpoenas as part of these reasons.
[1]Darley & Darley [2019] FamCAFC 238; Darley & Darley [2020] FamCAFC 4 and Darley & Darley (No.2) [2020] FamCAFC 193.
In summary, by Ground 11 of her Further Amended Notice of Appeal filed on 23 April 2020 in the parenting and property appeal, the mother contends that the primary judge was in error in failing to require the father to provide medical records as requested by the mother where, on the mother’s contention, those records would have shown relevant diagnoses of mental illness of the father relevant to a decision in the best interests of the children.
The mother seeks, via the issue of various subpoena, to compile evidence to be the subject of an application to adduce further evidence on appeal on this topic, and in support of Ground 11, when the Full Court hears her parenting and property appeal.
I reiterate here, as I have pointed out in the previous reasons for judgment I have delivered on this topic, that it is entirely a matter for the Full Court constituted to hear these appeals as to whether leave is granted to the mother to adduce any further evidence on appeal. The orders that I have made to date with respect to the subpoena issue, and the orders I propose to make today on this application, are not open to be interpreted as any endorsement of the merits of any potential application by the mother to adduce further evidence on appeal. Put simply, I have previously observed that in my judgment the mother is entitled to a reasonable opportunity to gather relevant evidence to mount an application to adduce further evidence on appeal, if such evidence exists, and if such an application has any merit with respect to Ground 11 as earlier referred to. Again, whether or not any evidence gathered by this process meets any criteria for admission of further evidence on appeal will be entirely a matter for the Full Court hearing these appeals.
I need not re-state in full the terms of the previous orders I have made. These are a matter of record and accompany the various reasons for judgment that have been referred to. Suffice to note that the mother was permitted to issue a subpoena in the first instance to Medicare to ascertain whether any relevant documents might be held by relevant medical service providers so that the topic of the issue of further subpoenas might be revisited. This was a far more conservative approach than the broad and far reaching subpoenas the mother sought to issue in the first instance.
Production of relevant medical records via the subpoenas issued to date results in the mother’s further Application in an Appeal to seek additional subpoenas to obtain the father’s medical records from three identified medical practices or medical centres. That is, the records produced via subpoena from Medicare identify these practices as having provided medical treatment to the father, together with the prescription of medication, potentially within the category described by Ground 11 in the mother’s parenting and property appeal. In her affidavit filed in support of the application the mother attempts, by reference to medications apparently prescribed to the father as referred to in the records, to identify medical conditions which these various medications are used to treat. I record that I do not accept that the mother has the expertise to proffer such opinions of an expert kind, but this does not diminish the observation I have already made about the potential for these practices to hold relevant records.
It appears that by reference to the records produced via subpoena from Medicare that these three identified medical practices probably hold records relating to relevant treatment the father has received, with respect to the formulation of mental health plans and the like. This noted, I do not consider that it would be reasonable to allow the issue of a subpoena to each of these three practices in the extraordinarily broad terms formulated by the mother, including that they are unconfined as to any timeframe at all. The terms of the subpoenas sought by the mother as outlined in her application are unconfined as to any timeframe at all. The terms of the subpoenas sought by the mother speak for themselves and in my judgment are self-evidently far too broadly drawn and expressed, and would impose an unfair and unnecessary burden upon the recipients of a subpoena in such terms.
At [19] of the reasons for judgment I delivered on 9 January 2020[2] in this matter I observed the following:
19.It is well settled by the authority that a subpoena must be issued for a genuine forensic purpose and must identify what appear to be relevant documents. In Gloucester Shire Council v Fitch Ratings, Inc [2016] FCA 587 Wigney J observed the following at [22]:
22.The law concerning subpoenas is one of those areas of law where metaphors abound. The test for whether a subpoena has a legitimate forensic purpose has been put in terms of whether the material caught by the subpoena appears to have relevance in the sense of “throw[ing] light” on at least some of the issues in the principal proceedings: Cosco Holdings Pty Ltd v Commissioner of Taxation [1997] FCA 1504; (1997) 37 ATR 432 at 439-440. It has also been said that it must be “on the cards” that the documents sought will materially assist the party at whose request the subpoena has been issued: Alister v The Queen (1984) 154 CLR 404 at 414; Tamwood Limited (ACN 010 954 499) v Habitare Developments Pty Ltd (ACN 122 935 497) [2009] FCA 364 at [13], [35]-[38]. Slightly more prosaic statements of the test include that the documents must have some “apparent” or “adjectival” relevance, or would be reasonably likely to add, in the end, in some way or another, to the relevant evidence in the case: Spencer Motors Pty Ltd v. LNC Industries Ltd [1982] 2 NSWLR 921 at 927-928 G-A; National Employers’ Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 at 385 D-F; Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 at 103; Dorajay Pty Limited v Aristocrat Leisure Limited [2005] FCA 588 at [17].
[2]Darley & Darley [2020] FamCAFC 4.
Wigney J continued at [24]:
24.A subpoena also cannot be used for the purposes of “fishing” or conducting a “fishing expedition”. A finding of “fishing” amounts to a finding that the subpoena has no legitimate forensic purpose because the documents are sought to discover if the issuing party has a case, not to support a case that has already been articulated: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575. A finding of “fishing” also appears to involve a question of oppression. A subpoena will be more readily set aside if great numbers of documents are required to be produced in circumstances where it cannot be demonstrated that they are likely to be sufficiently relevant: Dorajay at [34].
In circumstances where the parties’ first child was born in 2006, now some 14 years ago, it is difficult to imagine that there exists relevant medical evidence concerning the father’s parenting capacity pre-dating the year 2006. Thus I would be of the view that the relevant subpoena should be specific to documents produced on and from the year 2006 rather than being completely open-ended as to time as is the case with the mother’s proposed subpoena as contained in her application.
Moreover, I fail to see the relevance of many of the numerous categories of documents identified in the form of subpoena expressed by the mother.
In the course of the hearing of this application in exchanges with the mother, it seemed to be agreed by her that all that would be necessary to the mother in advancing Ground 11, or more specifically her application to adduce further evidence on appeal in support of Ground 11, are documents meeting the following description:
Any medical records or documents held relating to any diagnosis and/or treatment of any mental health or like medical condition, from and including the year 2006, in relation to [full name and various addresses of the father].
(Here would be inserted the father’s full name and various addresses as per the mother’s application).
I would therefore confine the grant of leave to the mother to have a subpoena issue to each of the three practices that are identified in her application in the above terms identified.
I record that, as has been the case previously with respect to the mother’s Applications in an Appeal, including those addressing the subpoena issue, the father has not sought to be heard with respect to the applications and has advised the Court to that effect.
I have, in dealing with this matter to date, and specifically the subpoena issue, in which the mother has been self-represented throughout and the father has not participated, treated the mother’s various Applications in an Appeal as “applications of a procedural nature” within the meaning of s 94(2D) of the Act. That is, I have proceeded on the understanding that the mother’s applications for the issue of a subpoena may be heard and determined by me as a single judge exercising jurisdiction pursuant to s 94(2D).
That section relevantly provides as follows:
Applications of a procedural nature, including applications:
(a)for an extension of time within which to institute an appeal under subsection (1) or (1AA); or
(b)for leave to amend the grounds of an appeal under subsection (1) or (1AA); or
(c)to reinstate an appeal under subsection (1) or (1AA) that, because of the standard Rules of Court, was taken to have been abandoned; or
(d)to stay an order of a Full Court of the Family Court made in connection with an appeal under subsection (1) or (1AA); or
(e)for an extension of time within which to file an application for leave to appeal; or
(f)for security for costs in relation to an appeal; or
(g)to reinstate an appeal dismissed under a provision of the Rules of Court; or
(h)to adjourn the hearing of an appeal; or
(i)to vacate the hearing date of an appeal; or
(j)to expedite the hearing of an appeal;
may be heard and determined by a Judge of the Appeal Division or other
Judge if there is no Judge of the Appeal Division available, or by a Full Court
of the Family Court.
It is readily apparent that whilst “applications of a procedural nature” are identified in inclusive terms in this section, rather than prescriptively, an application for leave to issue a subpoena in an appeal is not specifically identified as one of the applications of a procedural nature referred to in the section.
Turning then to the Family Law Rules 2004 (Cth), r 22.34 addresses the question of subpoenas being issued in an appeal. Rule 22.34 provides as follows:
22.34 Subpoenas
(1)A subpoena may be issued in an appeal only if leave to issue the subpoena has been given by:
(a)the Full Court; or
(b)for an appeal heard by a single Judge—that Judge.
(2)A document produced in compliance with a subpoena issued in accordance with subrule (1) may be inspected only with the leave of the Full Court or the Judge mentioned in paragraph (1)(b).
Obviously if the subject appeals were appeals from the Federal Circuit Court of Australia amenable to being heard by a single judge, then it would be plainly within the scope of r 22.34 for a single judge to grant leave to issue a subpoena, and to grant leave to inspect the documents produced. However, the parenting and property appeal is an appeal from a judge of the trial division of this Court and is to be heard by a Full Court constituted by three judges, not a single judge, as the Act requires. It would seem to follow then that if r 22.34 is strictly applied it is for that Full Court of a bench of three judges to consider the mother’s present application.
It is trite to note that a substantive section of the Act such as s 94(2D) would prevail over Rules of Court regulating practice and procedure if there be any conflict between the two and it is arguable that an application for leave to issue a subpoena is an application of a procedural nature within the meaning of the section. However, the specific provision of the rule gives pause for thought as to whether it is legitimate for a single judge to determine the question of leave to issue a subpoena for an appeal.
This question arose for consideration by Strickland J in Charisteas & Charisteas and Ors (2019) FLC 93-884 in which his Honour delivered judgment on 16 January 2019. Notably, his Honour had the benefit of submissions by counsel who had considered the point. His Honour, having observed the provision of r 22.34, then stated at 78-740:
The husband’s counsel correctly submitted that the Family Law Rules have to be read subject to the Family Law Act 1975 (Cth), and s 94(2B)(c) provides that a single judge may give directions about the conduct of an appeal, and s 94(2D) provides that applications of a procedural nature may be heard by a single judge. Thus, a single judge can hear and determine this application.
However, if I am wrong about that, the effect of r 1.12 of the Family Law Rules is that I am able to dispense with the requirements of r 22.34, and I would be content to proceed on that basis to hear and determine the application.
Self-evidently, Strickland J was satisfied that as a single judge he could proceed to hear and determine an application for leave to issue a subpoena in an appeal as a question of a procedural nature, within the meaning of the section, and his Honour would dispense, as needed, with the requirements of the relevant rule. I propose to adopt the same approach.
In the end result in the course of the hearing of this Application in an Appeal, the mother expressed her agreement to leave being granted to a subpoena in the terms which I have identified in the course of these reasons, which is far more limited in scope than the subpoena which she initially sought. The mother explained that she had simply obtained a precedent from the Women’s Legal Service for the subpoena which she sought to issue. In the end result the mother did not object to a subpoena in the terms I have expressed including the time limitation referred to.
For these reasons I would grant leave to the mother to issue a subpoena in the terms earlier identified in these reasons.
I would also grant leave to the parties, in the interests of expediency, to inspect the documents produced, subject to any objection raised by any recipient of any of the subpoenas. I refer to expedience in the context that the orders made in the parenting proceedings were made in December 2018 and, it is becoming critical that the appeal from those orders be heard and dealt with, given that is unlikely to occur now until early next year, obviously a time more than two years after the making of those orders.
I order accordingly.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Kent delivered on 19 November 2020, edited to correct grammatical errors and some infelicity of expression.

Associate:

Date: 19 November 2020