Dickens and Dickens (No. 2)

[2017] FamCA 750

FAMILY COURT OF AUSTRALIA

DICKENS & DICKENS (NO. 2) [2017] FamCA 750

FAMILY LAW – PRACTICE AND PROCEDURE – SUBPOENA – Review of Registrar’s decision not to reissue a subpoena to the NSW Police – Where the NSW police have produced certain documents – Where the father does not accept the explanation given by the NSW Police that they are unable to locate or no longer have further documents – Where there is little utility in reissuing the subpoena to the NSW police – Where the issue to which any documents that may not have been produced is peripheral to any central issue in the competing applications for parenting orders – Where the father’s application is dismissed.

State Records Act 1998 (NSW)

APPLICANT: Mr Dickens

RESPONDENT: Ms Dickens

INDEPENDENT CHILDREN’S LAWYER: Mr Moylan

FILE NUMBER: SYC 739 of 2010

DATE DELIVERED: 25 September 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 15 August 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Father in person

SOLICITOR FOR THE RESPONDENT: Mother in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Moylan Family Law

Orders

(Made 15 August 2017)

1. At the request of the father, both his Application in a Case filed 29 October 2015 and his Application in a Case filed 30 March 2016 be dismissed.

2. The father’s Application in a Case filed 9 March 2016 be dismissed. I reserve my reasons for judgment.

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 Dickens & Dickens (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)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 739  of 2010

Mr Dickens

Applicant

And

Ms Dickens

Respondent

REASONS FOR JUDGMENT

1. By way of an Application in a Case filed 9 March 2016 the father sought to review a decision of Registrar Campbell regarding a subpoena issued by the father dated 10 December 2015.

2. The formal orders that the father sought were as follows:

   1.  That the decision made on 29 February 2016 by Registrar Campbell regarding subpoena dated 10 December 2015 be set aside.

   2.  That Police produce for inspection the original items listed in item 3 of the schedule to subpoena dated 10 December 2015.

   3.  That Police produce copies of the items listed in item 3 of the schedule to subpoena dated 10 December 2015.

   …

3. The father has issued a number of subpoenas to the NSW Police Force in this matter. The police have produced certain documents pursuant to those subpoenas. The father complains that they have not produced all the documents that they have and does not accept their explanation that they are unable to find any further documents.

4. In support of that application, the father relied upon the following documents (Annexure A to the Application in a Case filed 9 March 2016):

   1. Brief written submissions regarding subpoena issued to NSW Police dated 10 December 2015, pages 6 and 7;

   2. Email correspondence, pages 8 to 25;

   3. Printouts of and regarding the test of police email address, pages 26 to 28; and

   4. Letter by KK Lawyers dated 5/20/2016, page 29.

   (During the hearing I indicated that I did not have available all of those documents but I found them during the time that the father was making his oral submissions.)

5. At page 9 of annexure A the father provides the text of an email he received from the Sydney Case Coordinator on 29 February 2016 in which he was advised as follows:

   …

   The Registrar advises that this is not a matter for re-listing. The matter has been listed in a court subpoena list once, and the subpoenaed entity maintains they have complied.

   …

6. The particular item in the schedule to the subpoena to which the father was primarily concerned was item 3, although during oral submissions he also referred to item 2.

7. Those items are in the following terms:

   …

   2. Any CCTV video footage, or other security video recording, which shows [C] and [Mr Dickens] at [Suburb T] Police Station, in particular:

   a. of [C] and [Mr Dickens] in the reception area, together and/or separately, on 15 March 2014 during the hours of approximately 3.00 pm to 5.30 pm, and

   b. of [C] and [Mr Dickens] on 17 March 2014 during the hours of approximately 12 noon to 2.00 pm,

   for the entire duration that [C] and [Mr Dickens] were captured on CCTV together and/or separately.

   3. Unredacted clean copies of emails, text messages, duty book entries, notebooks and/or all other written records made by Police which document any form of communication between the lawyer [Ms JJ] and Police from 15 March 2014 to 31 January 2015 and 17 April 2015 to 20 May 2015 regarding:

   a. [C’s] alleged assault by [Mr LL] on 14 March 2014,

   b. the ex-parte recovery order issued by the Family Court on 18 March 2014, and

   c. the investigations into the above events, and

   d. the Family Court of Australia proceedings SYC739/2010.

   …

ITEM 3

1. Item 3 seems to be an attempt to obtain information about communications between the mother’s lawyer and the police in 2014 and 2015. The police say they have no record of communication. I have no doubt that there was some communication between the mother’s lawyer and the police particularly at the time when the mother made an ex parte application to the court on 18 March 2014 for a recovery order after the father had retained C for four days.

2. The police say that after searching for communication with Ms JJ they were unable to locate any record of it.

3. The father relies on sections of the State Records Act 1998 (NSW) in his assertion that the police must still hold these records. Section 12(1) states:

   (1) Each public office must make and keep full and accurate records of the activities of the office.

4. The father also pointed to the following subsections of s 21 of the State Records Act 1998 (NSW):

   (1) A person must not:

   (a) abandon or dispose of a State record, or

   …

   (d) damage or alter a State record, or

   …

5. On 8 February 2016 the NSW Police wrote to the father advising that after making inquiries they were “unaware of Ms JJ contacting either Suburb T or Suburb K Police during the period 15 to 17 March 2014. If it is on court record that she did indeed contact someone, I am unable to establish who that Police officer may be”. On 19 February 2016 NSW Police again advised the father that they could not produce any documents nor did they have access to any correspondence with Ms JJ (noting that they had written the incorrect dates in the email of 8 February 2016 and stated that they had responded to all dates listed in the schedule to the subpoena). On 24 February 2016 the father was advised by the Subpoena Unit that the subpoena had been complied with and no further information was available.

6. On the balance of probabilities it is likely that if the father was permitted to reissue the subpoena to the police he would get the same answer from the police as they gave him last time.

7. Also, it is not obvious to me as to what relevance a communication between the mother’s lawyer and the police would be to the central question that I have to now determine, namely, whether or not I would grant the father’s application to move the children to him and make an order that they not see their mother for two years.

8. It is unremarkable that a lawyer for a party would liaise with police in relation to the issuing of a recovery order, particularly in circumstances where the child would be taken by the police and returned to that lawyer’s client.

9. Given that it is unlikely that there would be any utility in reissuing the subpoena to the police.

ITEM 2

1. The father also wished to re-agitate the issuing of the subpoena for CCTV video footage. Initially he had not done that in his application of 9 March 2016.

2. The reason for that was on 8 February 2016 the NSW Police sent an email to the father advising “the CCTV at Suburb T Police Station is on continuous record and lasts for six months, until it records over itself due to the capacity of the memory. This footage was requested outside this six month period and hence does exist”. While there is no date, it seems that the father did respond to this email advising that he accepted this response from the NSW Police (pages 17 and 18 of Annexure A). 

3. The father before me orally attempted to revive this issue by pointing to the fact that he had previously issued another subpoena on 28 July 2014 (within the six month period) where in item 2(e) he had requested copies of CCTV footage. The father asserted, and so far as I am aware there was no evidence about this, that the police had previously produced this footage but following an objection to that material had later produced only a fraction of that material.

4. Again, the situation is that the police have indicated they are unable to produce material and I find there is no utility in granting the father leave to reissue the subpoena to the police. The father had previously accepted that if that footage once existed, it no longer existed.

CONCLUSION

1. What the father is now seeking is bordering on a fishing expedition. It was not made clear why CCTV footage of the child and the father would be of relevance. The issues to which any documents that may not have been produced by the police would relate are at best peripheral to any central issue that I have to determine in the competing applications for parenting orders between the parties. It would be an undue further waste of the court’s time to allow the father to issue further subpoenas in relation to the documents that he seeks which the police say they are unable to locate or no longer have.

2. I dismiss the father’s Application in a Case filed 9 March 2016.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 25 September 2017.

Associate: 

Date:  25.9.2017