Darley & Darley
[2020] FamCAFC 4
•9 January 2020
FAMILY COURT OF AUSTRALIA
| DARLEY & DARLEY | [2020] FamCAFC 4 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – TRANSCRIPT – Where the mother was permitted to listen to the relevant audio to determine whether she wished to obtain all or part of that transcript – Where the mother is not yet in a position to make that determination – Where the application is adjourned to the Appeals Registrar to a date to be fixed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – SUBPOENA – 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 sought to issue a subpoena of a much broader compass – Where the earlier orders are varied to provide the exact wording for the mother’s subpoena – Where the application in relation to the issuing of a subpoena is otherwise dismissed. FAMILY LAW – APPEAL – PROCEDURE – Where the mother seeks an extension of time to file her Summary of Argument following the resolution of the transcript and subpoena issues – Where the mother seeks leave to copy documents already produced under an earlier subpoena – Where the mother tendered documents proving service of the relevant application upon the person whose medical records the mother wishes to copy – Where the mother is permitted to copy two pages of the relevant records – Where the appeal is now no longer able to be heard in the March 2020 Full Court sittings – Where the time for the mother to file her Summary of Argument is extended to the end of March 2020 – Where the Appeals Registrar is to arrange a new timetable for the remaining parties to file their documents. |
| Family Law Act 1975 (Cth) |
| Gloucester Shire Council v Fitch Ratings, Inc [2016] FCA 587 Darley & Darley [2019] FamCAFC 238 |
| 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: | 9 January 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 9 January 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 |
| THE RESPONDENT: | No appearance |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | No appearance – leave given not to appear |
Orders
The mother’s Applications in an Appeal (NOA 39 of 2019 and NOA 83 of 2019) relating to the question of dispensing with the whole, or part, of any transcript for the hearings on 2 April 2019 and 10 June 2019 before Carew J be adjourned to the Appeals Registrar to a date to be fixed.
Leave is given to the mother to obtain photocopies of pages 10 and 11 from subpoena bundle number 30 being the records of [Dr TT] in respect of consultations with the paternal grandmother held on 12 and 13 September 2012, and that the mother forthwith upon obtaining them serve copies of those documents upon the father and the Independent Children’s Lawyer.
Order (5) of the Orders of 4 December 2019 be varied as follows:
(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.
The applications for leave to issue any subpoena be otherwise dismissed.
An extension of time be granted to the mother to file and serve her Summary of Argument, relating to the three appeals, to 4:00 pm on 27 March 2020.
The question of revising the timetable with respect to the father and the Independent Children’s Lawyer for the filing of their Summaries of Arguments, relating to the three appeals, be adjourned to a date to be fixed before the Appeals Registrar.
Liberty to apply be granted to the father and the Independent Children’s Lawyer in respect of the question of extending the timetable for the filing of documents as set out in Orders (5) and (6) hereof.
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 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
On 4 December 2019, I made orders and delivered reasons for judgment in respect of several applications in appeals concerning the subject appeals (“the December 2019 reasons”).[1]
[1]Darley & Darley [2019] FamCAFC 238.
I incorporate, without repeating them here in full, the December 2019 reasons for judgment as part of these reasons for judgment. Moreover, I will adopt in these reasons for judgment the same descriptions as used in the December 2019 reasons in respect of the mother’s separate appeals, that is first: “the parenting and property appeal”, second: “the contravention appeal” and third: “the s 102QB[2] appeal”.
[2] Of the Family Law Act 1975 (Cth) (“the Act”).
Aside from an order reinstating the s 102QB appeal, the first issue dealt with in the December 2019 reasons for judgment concerns the provision of transcript in respect of each appeal. As is there recorded, it was discovered that in respect of the parenting and property appeal the Court was in possession of transcript which could be made available to the parties for the purpose of that appeal, so that issue fell away in respect of the parenting and property appeal.
As I noted in the December 2019 reasons, there ought not to have been, in any event, any order for this Court to fund the provision of transcript for any of these appeals given the matters identified.
With respect to each of the contravention appeal and the s 102QB appeal, the mother sought to have the opportunity to have access to the audio for each of those subject hearings so that she might determine whether she actually required any or all of the transcripts for the purposes of pursuing those appeals.
The application was adjourned to today with a view to reconsidering all of these matters.
In the result, the mother is not yet in a position to advise further as to whether she will need to obtain some or all of the transcript with respect to each of the contravention appeal and/or the s 102QB appeal.
The mother indicates that she has taken notes, from having attended to listen to some of the audio, and plans to obtain some legal advice potentially about amendments to her grounds of appeal, at least, with respect to the contravention appeal if not the s 102QB appeal.
It will, thus, be necessary to adjourn at least that part of the subject Applications in an Appeal to a date to be fixed, so I simply make an order adjourning the applications to the Appeals Registrar for a further date to be fixed to consider the question of dispensing with the need for transcript for the subject appeals.
The other matter that was raised and discussed in the December 2019 reasons and is repeated today, relates to the subpoenas that the mother wishes to issue. Before dealing with that I should mention that there was an issue with respect to the mother seeking to put before the Full Court potentially, on her further evidence application, at least some part of documents already obtained under subpoena with respect to the paternal grandmother’s attendance upon a doctor. The parties have previously, for the purposes of the trial of the proceedings, been given leave to inspect documents produced on subpoena but not leave to obtain copies of documents so inspected.
Today, the mother identifies that from her inspection of the subpoenaed documents, pages 10 and 11 of subpoena bundle number 30 containing the records of one Dr TT in respect of consultations with the paternal grandmother held on 12 and 13 September 2012 respectively, are the relevant documents she would seek to obtain in an effort to have them produced as further evidence on the appeal. That is the parenting and property appeal.
I will order that the mother have leave to obtain copies of those two documents and that she serve copies of each of the documents so obtained upon the father and the Independent Children’s Lawyer (“the ICL”).[3]
[3] Admitted and marked as Exhibit 1 on this hearing are the documents proving service of the subject application upon the paternal grandmother.
With respect to the subpoena issues otherwise, I set out in the December 2019 reasons the difficulties confronted by the mother with respect to the subpoena the mother was then seeking to have issued in support of Ground 9 of her parenting and property appeal, challenging the trial judge’s refusal of leave to issue subpoena.
Broadly, the mother contends that there may exist medical records which would disclose material relevant to the father’s mental health, which she contends would have relevance to the determination of the children’s best interests.
As I set out in the December 2019 reasons, whilst I considered that the mother should have some opportunity to establish the challenge she seeks to mount on appeal, that is, at least the opportunity to formulate an application for further evidence to be adduced on appeal concerning medical records, the application as then framed by the mother, was 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.
As I recorded in the December 2019 reasons, in the first instance, leave was given to the mother to issue a subpoena to Medicare to obtain details of the identity of medical providers to the father. The plan envisaged, by at least the Court at that stage, was that the mother would issue such a subpoena and have it returned so that, if necessary, the question of any further subpoenas could be revisited today.[4]
[4] As recorded in [33] of the December 2019 reasons.
In the event, since the making of the orders made on 4 December 2019, the mother has submitted a subpoena in identical terms on two occasions, namely 6 December and 11 December 2019, and the Appeals Registrar declined to issue a subpoena in those terms on each occasion explaining by reference to the December 2019 reasons that the subpoenas sought to be issued by the mother were not in conformity with the reasons.
I have repeated that position to the mother today and she explains that the subpoenas she sought to issue on those days were sought prior to her receipt of the written version of the December 2019 reasons. Be that as it may, the mother has since filed a further Application in an Appeal and has not resiled from it, in terms of the application she pursued today seeking the subpoena in far wider terms.
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].
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].
Between the hearing in December 2019, to which the December 2019 reasons relate, and today’s hearing, I have had the opportunity to review the transcript of the proceedings the subject of the parenting and property appeal.
As I took up with the mother in the course of exchanges today, part of the appeal record in respect of the parenting and property appeal is a report of Dr J, psychiatrist, who was appointed the independent expert for the purpose of the parenting and property proceedings.
Dr J prepared a report which forms part of the evidence in the appeal record, a report dated 14 November 2013.
The report discloses that Dr J undertook an examination of each party, but focusing for the moment upon the father, as to the history that the father had provided concerning both his personal, academic and employment history as well as his medical history.
There are, contained in Dr J’s report, details as to what the father told Dr J about his medical history, including for example, concessions about the father having suffered from stress and anxiety and in relation to consultations with psychologists. There is also discussion by the father as to him being diagnosed with post-traumatic stress disorder and his use of medication.
Dr J sets out in his report his own assessment of the mental state examination of the father and recorded that in respect to the father (as he did with the mother) no evidence of any major mental illness was identified.
Dr J also had before him the documentation, as set out in his report, which included matters such as subpoenaed records from medical sources.
As I have said that report formed part of the evidence before the trial judge in the parenting and property proceedings.
A review of the trial transcript in the parenting and property appeal reveals that the mother did not require Dr J for the purpose of any cross-examination.
What the trial transcript also reveals is that counsel for the ICL cross-examined the father concerning his medical history, by reference to the matters the mother raised in her affidavit material and allegations she raised concerning the father’s mental health. That appears, for example, at page 85 of the transcript of 8 October 2017 and thereafter.
For her own part, the mother did not cross-examine the father or challenge him in relation to either the history he provided to Dr J for the purpose of the report I have referred to, nor in respect of the answers the father gave under oath in cross-examination by counsel for the ICL.
The records in relation to the parenting and property appeal establish, and indeed the reasons for judgment of the trial judge demonstrate, that the initial part of the trial took place over four days on the 17, 18, 19 and 20 October 2017. There was then a reopening of the proceedings on 13 and 14 February 2018 and a further hearing on 23 May 2018.
The mother contends that it was on the 10 January 2018, when the reopening was in prospect, that she made an oral application before the trial judge with respect to issuing a subpoena in relation to the father’s medical records.
The mother does not produce any documentary evidence to support that. In other words, there is no actual application pointed to, nor is there any transcript before this Court, in relation to it nor any order by the trial judge, but it can be assumed for the sake of the argument that the mother is accurate that she made some oral application.
The point though is that given what had occurred, as I have set out, prior to 10 January 2018, it is understandable that unless the mother demonstrated a genuine forensic purpose and demonstrated a real likelihood of there being documents relevant to the issue, then it would not have been legitimate for the trial judge to give leave to issue a subpoena.
The Appeals Registrar has set out for the mother that only paragraph 2(e) of the subpoena she sought to issue, is in conformity with the December 2019 reasons and my description of the subpoena the mother should be permitted to issue in the first instance. I endorse that approach by the Appeals Registrar, that is, to the extent that it is necessary to do so I would vary the orders (Order (5)) I made on 4 December 2019 to make it clear that the mother have leave to issue a subpoena in the following terms:
(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.
As I have sought to emphasise to the mother, ultimately the question of further evidence on an appeal is a matter for the Full Court charged with hearing and determining the appeal.
Likewise associated questions such as the issue of subpoena is a matter ultimately for the Full Court hearing the appeal.
In the event that the mother proceeds to issue a subpoena in the terms which I have described, and there are relevant documents obtained on subpoena that lead to the question of whether some further subpoena should be issued, that is a matter for another day.
The remaining matter raised by the mother is the timetable set by the Appeals Registrar by orders and directions that have been made in relation to the filing and service of, in the first instance, the mother’s Summary of Argument for these appeals. On the current timetable, the mother is due to file her Summary of Argument by the end of this month.
As the mother raises, it is unlikely she is going to be able to file a complete Summary of Argument by the end of this month given what she has raised concerning the potential for obtaining some further legal advice and the potential amendment of her grounds of appeal in the contravention appeal, and the mother envisages at least the need to have the time extended until the end of March 2020 rather than the end of this month.
At it seems to me, there is now no realistic prospect of these appeals being ready to be heard and determined at the March 2020 sittings of the Full Court, which obviously the timetable to date has been directed towards. The next opportunity for the appeals to be heard will be in the June 2020 sittings.
I will therefore extend the time for the filing of a Summary of Argument by the mother to the end of March 2020 and I will otherwise adjourn, to the Appeals Registrar, the question of revising the timetable with respect to the other parties to the appeals for the filing of their Summaries of Argument.
I record that I extend time on the basis that the mother confirms in submissions from the bar table that the orders in the parenting and property appeal are being observed, that is, that pending the determination of that appeal, those orders are in effect and the parenting arrangements determined by the orders the subject of that appeal are in effect.
I ought though, out of an abundance of caution, provide for liberty to apply to each of the ICL and the father given that they have not been specifically heard in respect of the question of extending the timetable, and would not necessarily have been aware that that was in prospect despite being aware of the further hearing of these Applications in an Appeal today.
For these reasons I make the orders set out at the commencement of these reasons for judgment.
I certify that the preceding forty-five (45) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Kent delivered on 9 January 2020, edited to correct grammatical errors and some infelicity of expression.
Associate:
Date: 10 January 2020
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