DUARTE & MORSE

[2018] FamCA 511

FAMILY COURT OF AUSTRALIA

DUARTE & MORSE [2018] FamCA 511

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Hearing in chambers – Review of a registrar’s decision to refuse the mother leave to issue two subpoenas in contravention proceedings – Where the subpoenas would require the father to attend Court to give evidence and produce documents and for the child’s school to produce documents – Where the mother cannot call the father as her own witness – Where the subpoena to the school is unnecessary as there are no proceedings before the Court based on an arguable case to which the documents produced would be relevant – Application dismissed.

FAMILY LAW – COURTS AND JUDGES – Bias – Where the mother has raised concerns of judicial bias – Where the mother has not formally sought a recusal – Where there is nothing to suggest that a fair-minded lay observer might reasonably apprehend that the Court might not bring an impartial and unprejudiced mind to the determination of the review application.

Family Law Act 1975 (Cth) s 112AD
Family Law Rules 2004 (Cth) rr 15.17, 15.18, 18.08, 18.10

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

APPLICANT: Ms Duarte

RESPONDENT: Mr Morse

FILE NUMBER: SYC 737 of 2014

DATE DELIVERED: 13 July 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: In Chambers

Orders

1. The mother’s Application in a Case filed on 13 June 2018 is dismissed.

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 Duarte & Morse 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:  SYC737 of 2014

Ms Duarte

Applicant

And

Mr Morse

Respondent

REASONS FOR JUDGMENT

Introduction

1. The substantive proceedings between the parties were commenced by the mother filing an Application – Contravention on 4 May 2018, in which she alleges that the father contravened orders affecting a child, without reasonable excuse. That application was replaced by an Amended Application filed 21 May 2018.

2. A registrar refused the mother leave to issue two subpoenas in those contravention proceedings. The mother filed an Application in a Case on 13 June 2018 seeking a review of the registrar’s decision. That application is refused for the following reasons.

The Background Facts

1. The Court may issue a subpoena on the request of a party - r 15.17 of the Family Law Rules 2004 (“the Rules”). However, the Court must not issue a subpoena at the request of a self‑represented party unless the party has first obtained the registrar’s permission to make the request (r 15.18 of the Rules).

2. Ms Duarte requested permission to seek the issue of subpoenas to the F School and to the father.

3. Ms Duarte says that she was advised by the Registry by telephone on 5 June 2018 that her request was refused because the subpoenas were considered irrelevant.

4. Rule 18.08 provides that a party may apply for a review of an order mentioned in an item of Table 18.6 by filing an Application in a Case and a copy of the order appealed from in the filing registry within the time mentioned in the item.

5. The decision of the registrar is a decision under Division 15.3.1 of the Rules and Table 18.06 provides for an application for review to be filed within seven days. That was done and under the usual arrangements in this Registry, the application came to me because I am the judge responsible for case management.

6. Rule 18.10 deals with the powers of the Court on review and provides that the review must be heard as an original hearing. A note to the rules explains: “In an original hearing, the court rehears the whole matter and does not simply review the decision of the original court.”

7. An email was sent to the parties by the Registry on 21 June 2018 in terms to the following effect:

   The mother’s Application in a Case for a review filed 13 June 2018 will be determined in chambers.

   Any written submissions either party might like to make should be provided to [the associate to Justice Loughnan] and to the other party within seven days.

8. On 21 June 2018 at 4.25 pm an email was received from the mother:

   To whom it may concern,

   I request that Justice Loughnan recuse himself from this matter, as in my view he acted prejudicially and incompetently in relation to my contravention application in 2016, when he ran a summary dismissal application on his own motion. I didn't appeal it at the time as I was having a baby so he got off the hook, but I won't allow that a second time. I will file a formal application for recusal on Monday, on the grounds of ostensible bias.

   Ms Duarte

9. On 21 June 2018 at 4.51 pm an email was received from the mother to the following effect:

   Dear Associate,

   My apologies, I thought you were talking about the subpoenas.  I do not consent to the substantive amended contravention application (which was served) being determined in chambers, as [Mr Morse] will need to be put on the stand to determine the gravity of the contravention, and also I have important legal arguments to make, which I wanted to do both orally and in writing.  We haven’t even had a directions hearing.  These factors amount to the court denying me procedural fairness.  Is the court attempting to sabotage this politically volatile application?

   I do NOT give permission for this to be determined in chambers.  It was previously listed for 9 July.  I do not understand why there is a sudden change.  Please explain!

   Ms Duarte.

10. On 22 June 2018 at 12.46 pm an email was received from the mother to the following effect:

    Dear …,

    It appears our wires were crossed.  My apologies for any inconvenience caused. 

    Would you kindly clarify, please, exactly what is intended in regards to 9 July.  When I took my documents to the registry on 13 June, I was told by … that the case coordinator would contact me in regards to this matter, as I suggested that the application in a case be heard on 9 July, and directions made.  I made it clear to … that the hearing of the substantive contravention application will be at least a full day affair in my estimation, and not amenable to a duty list.

    I remain concerned about Justice Loughnan having any involvement whatsoever, as he previously showed prejudice toward the father and denied procedural fairness.  Furthermore, I am concerned that if he were to determine the application in a case in chambers, he might act on experience and attempt to run a summary dismissal motion of his own volition as he did with my last contravention application, the only difference this time being it would be ex-parte.

    Yours sincerely,

    Ms Duarte

11. On 27 June 2018 the father sent an email which included the following terms:

    Dear Associate,

    I am responding to the Application in a Case filed 13th June 2018.  My Solicitor … from Slater and Gordon has sent me this document on 22nd June 2018.  My solicitor is only representing me in my cost case and Appeal case, I will represent myself in all other cases as they arise.  I have only been formally served with this Application in a Case by … on the 26th June 2018 At 1 pm.

    From what I can see the 13th June 2018 Application is in reference to subpoenas relating to [Ms Duarte’s] Contravention Application filed on the 4th May 2018.

    I will seek to have this Contravention dismissed as I firmly believe that I have complied with the Final Family Court orders issued on 1st December 2017.  The Final Court orders were issued to allow me to make decisions on the welfare, health and schooling needs for the children [H], [J] and [K].  Unfortunately [Ms Duarte] has continued to harass the school since the handing down of the Final Court orders by emails, she has been making unreasonable demands on the school.  The school emailed [Ms Duarte] to inform her that she was not to contact the school, but she ignored this email and continued the harassment.  It was at this point 8th March 2018 that I organised to terminate the original Enrollment [sic] Contract and replace with a new Enrollment [sic] Contract which reflects the Final Family Court Orders and brings [H’s[ Enrollment [sic] Contract in-line with the Enrollment [sic] Contracts I have signed for [J] and [K].  This termination of the school Enrollment [sic] Contract of H’s schooling was communicated to [Ms Duarte] by email on the 8th March as per Final Court order 3.

    Application in a Case seeking to issue a subpoena.

    Based on the above I will be seeking this Application to be dismissed as I consider their [sic] to be no cause for [Ms Duarte] to be issuing subpoenas to myself and F School.

    Response to [Ms Duarte] Affidavit (reference Application 13th June 2018)

    [Ms Duarte] has sent me a Notice to Produce request earlier this year after the Final Court orders were issued which I refuse to supply the highly personnal [sic] information about my medical history and my personal friends since the divorce with [Ms Duarte] using the word “Paramours”!  I find this inference and the notice to produce as an invasion of privacy and it is highly offensive!

    Item 11 and 12 relates to matters considered by the judge at the final hearing and are no longer relevant given final orders have been made.

    For the reasons outlined I ask that this Application be Dismissed!

    Yours Sincerely

    [Mr Morse]

Discussion

1. In her emails the mother has requested that I not deal with aspects of the case because I am biased in favour of the father and previously denied her natural justice. The mother indicated that she would formally seek that I recuse myself but she has not done so. Nor has the mother provided any evidence in support of such an application. I will nevertheless say something about this issue.

2. In summary the legal position[1] in respect of recusal is as follows:

   ·Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the Court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause;

   ·If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case;

   ·In a case of real doubt about whether a judge is disqualified it may be prudent for a judge to recuse himself or herself;

   ·The issues in question follow from a consideration of the fundamental principle that court cases must be decided by an independent and impartial tribunal;

   ·One category of basis for disqualification is the appearance of bias; and

   ·The test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.

   [1] See the majority judgment of the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and the High Court decision in Johnson v Johnson (2000) 201 CLR 488.

3. Apart from the mother’s assertions, there is no evidence to support the mother’s contention of bias and, therefore, nothing to suggest that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the determination of the review application.

4. A subpoena is effectively a court order requiring the attendance of a witness to give evidence at Court and/or to produce documents. A subpoena normally issues without notice to the addressee and depending on its wording, can make very onerous demands on that addressee. Failure to comply with a subpoena can result in the arrest of the addressee and in the imposition of a penalty under s 112AD of the Family Law Act 1975 (Cth) (“the Act”) which can include imprisonment or a fine. It is for those reasons that care is taken before subpoenas are issued and particularly where they are issued at the request of a litigant in person. There must be a relevant connection between the type and scope of the documents or evidence sought and the substantive proceedings.

5. Here the mother sought that subpoenas issue for the purpose of the contravention proceedings commenced by her amended contravention application filed 21 May 2018. That application contained 10 allegations, seven of which were said to relate to breaches of Order 3 made on 1 December 2017 and three of which were said to relate to Order 14(a) of those Orders.

6. The allegations are to the following effect:

   Charge 1: the father contravened without reasonable excuse Order 3 made 1 December 2017 by an email sent on 8 March 2018 at 8.58 am in that he did not notify the mother of changes to schooling arrangements with reasonable sufficiency.

   Charge 2: the father contravened without reasonable excuse Order 3 made 1 December 2017 by a telephone call made on 20 March 2018 at about 6.15 pm in that he did not notify the mother of changes to schooling arrangements with reasonable sufficiency.

   Charge 3: the father contravened without reasonable excuse Order 3 made 1 December 2017 by an email sent on 27 March 2018 at 10.37 am in that he did not notify the mother of changes to schooling arrangements with reasonable sufficiency.

   Charge 4: the father contravened without reasonable excuse Order 3 made 1 December 2017 by an email sent on 25 April 2018 at 1.21 pm in that he did not notify the mother of changes to schooling arrangements with reasonable sufficiency.

   Charge 5: the father contravened without reasonable excuse Order 3 made 1 December 2017 on 26 April 2018 at 12.52 pm in that he did not notify the mother of changes to schooling arrangements with reasonable sufficiency.

   Charge 6: the father contravened without reasonable excuse Order 3 made 1 December 2017 by an email sent on 27 April 2018 at 6.39 pm in that he did not notify the mother of changes to schooling arrangements with reasonable sufficiency.

   Charge 7: the father contravened without reasonable excuse Order 3 made 1 December 2017 continuously and in various ways between 8 March 2018 and 30 April 2018 in that he did not notify the mother of changes to schooling arrangements with reasonable sufficiency.

   Charge 8: the father contravened without reasonable excuse order 14(a) made 1 December 2017 by an email sent on 24 April 2018 at 12.52 pm in that he abused his discretion in not permitting the mother to have contact with F School to the degree that was reasonably necessary in relation to contractual issues.

   Charge 9: the father contravened without reasonable excuse Order 14(a) made 1 December 2017 by an email sent on 27 April 2018 at 6.39 pm in that he abused his discretion in not permitting the mother to have contact with F School to the degree that was reasonably necessary in relation to contractual issues.

   Charge 10: the father contravened without reasonable excuse Order 14(a) made 1 December 2017 continuously and in various ways between 8 March 2018 and 30 April 2018 in that he abused his discretion in not permitting the mother to have contact with F School to the degree that was reasonably necessary in relation to contractual issues.

7. The Orders of 1 December 2017 were in the following terms:

Parenting

(1)All prior parenting orders are hereby discharged.

(2)The father is to have sole parental responsibility for the children H born … 2006 (“H”), J Morse born … 2010 (“J”) and K Morse born … 2012 (“K”) (collectively referred to as “the children”).

(3)Whenever the father makes any decision which changes some aspect of the children's long term arrangements such as schooling, or makes an important decision about some aspect of their health, he is to notify the mother of same in writing. [emphasis added]

(4)If the father considers it necessary or appropriate to do so, he may seek the mother’s input, in writing, in relation to any arrangement for, or significant aspect of, any of the children’s lives.

(5)The mother is restrained from bringing the children into contact with Mr T at any time or under any circumstance other than that which might be specifically permitted by the father in writing from time to time.

(6)The mother is restrained from knowingly approaching within 200 metres of the father’s residence or his place of work. Should the father’s place of work be on a train or at a train station, the mother is permitted to travel on the train and enter the train station as part of her normal transit use, however, she is not to approach the father or speak to him on any such occasion unless the father has previously agreed that she may by providing that permission in writing.

(7)The mother is restrained from permitting or encouraging the children to call any person except the father by any name which includes the words “dad”, “daddy” or “father”.

(8)The mother is to have supervised time with the children as follows:

(a)On one occasion each fortnight on a day nominated by the father (to be the same day of the week on each visit so far as that is practical) for a period of two hours.

(b)The supervisor is to be one approved by the father and, for the first six occasions, the mother undertakes that such time is to be supervised by a supervisor provided by an agency which provides supervisors for parents’ time with children. The father is to provide the mother with a list of three agencies he would nominate for the purpose of providing a supervisor for the mother’s time with the children under these orders and the mother is to choose one agency and advise the father of same in writing. The father is to ensure that the agencies nominated will provide a written report of such time to both the father and the mother within seven days of each event. The mother is to meet the cost of the supervisor.

(c)The mother’s time with the children on the first three occasions of supervised time is to take place at a site nominated by the father. Thereafter the mother is to provide the father with a list of places at which she proposes to spend her time with the children and she may only spend time at such place as approved by the father (and the supervising agency, if applicable) in writing.

(d)After six occasions of the mother spending supervised time with the children where that supervision is provided by an agency supervisor, the mother may seek the father’s approval for another person, persons or an organisation to be the supervisor of her time with the children. The mother is to provide contact details for any such persons or organisations to the father at the time she nominates such person or entity and the father is to be permitted to speak with any such nominated person about the role of supervisor should he wish to do so. Should the father approve such person or organisation as a supervisor then the mother may exercise her time with the children in the presence of that person.  Where the mother nominates a person she is not to do so unless she has shown such person a copy of these orders. Should such nominated person be accepted by the father then the mother is to provide a copy of the orders to that person before the first occasion on which supervision by that person takes place.

(e)In the event of the mother seeking the father’s approval for a particular person or persons to supervise her time and in the event the father accepts such person or persons, then before the first occasion upon which the mother spends time in the presence of that supervisor, she is to provide the father with a copy of a written acknowledgement by such persons that they have been provided with a copy of these orders and accept they are to supervise the mother in the presence of the children and are to ensure none of the following events occur:

(i)Any contact with Mr T, including contact by telephone or any electronic means.

(ii)Any discussion with the children by the mother in which she is critical of the father, makes denigrating or derogatory statements about him.

(iii)Any discussion regarding matters of her religious beliefs with or in the presence of the children which directly or by clear inference the children may reasonably be seen to understand the mother is being critical of the father’s religious beliefs or lack thereof.

(9)The father may, in writing provided to the mother at any time, suspend the requirement for the supervision of the mother’s time with the children for such occasion or occasions which he considers appropriate to do so.

(10)The father may in writing to the mother increase the amount of time, increase the frequency and vary the site where the mother is to spend that time with the children. Where the father provides that in writing, the mother may agree to the changes in writing and if she does so unequivocally, then she may spend such time with the children as that writing permits.

(11)In the event that the mother no longer resides with Mr T and the father is satisfied there will be no contact by the children with Mr T and where the father is satisfied the mother is otherwise compliant with the court orders, then the father is to consider extending the time the children spend with the mother to overnight time in her home. If he offers to the mother a change of the time the children spend with her to include overnight time and the mother accepts unequivocally in writing the conditions upon which such offer is made, then such time is to continue until the father gives notice in writing that it is to cease.

(12)The mother’s time with the children, under these orders, is to be suspended during any part of the children's school holiday periods where the father has made arrangements for him to spend time with them as a holiday activity or for them to holiday at a site which makes it impractical for the mother to have the time required by these orders with the children. Where that happens the father is to provide make up time for the children to spend with the mother and he is to nominate in writing to the mother the times and sites at which any such makeup time takes place. The makeup time is to be subject to the supervision order provided herein unless the father waives such requirement in writing to the mother.

(13)The mother is to have telephone time with the children on two occasions each week for up to 15 minutes or such longer period as the father allows. The phone calls are to be on Tuesday and Thursdays each week at 6.00 p.m. unless the father notifies the mother of a different time or day of the week for such contact. So far as can be arranged the father is to ensure that all three children are present and able to participate in the phone call. The father is to monitor such calls for as long as he considers necessary. The father is to terminate any phone call where he considers the words spoken by the mother to the children are inappropriate or the children or any of them become distressed.

(14)The mother is not to approach or have any contact with any of the children’s schools or personnel otherwise than as follows or otherwise provided for in these orders:

(a)On any occasion the father provides his written consent/invitation [emphasis added];

(b)On any of the children’s end of year speech days or presentation days, howsoever named, to which parents are invited or expected by the school to attend;

(c)On any other occasion when parents are invited or expected by the school to attend for a specific event and where the mother has first given not less than 48 hours written notice by email or text message to the father of her intention to attend and the father has provided by return email or text his written consent for that specific attendance.

(15)Whenever the mother attends at any of the children’s schools she is to conduct herself in a manner which will not embarrass any of the subject children were they to know of such behaviour nor is she to interact with any school employee or other person attending the school on that occasion in a combative, challenging or aggressive manner.

(16)Should there be any occasion where the father has reasonable reason to believe the mother has acted in a manner contrary to order (15) hereof he may give her written notice that she is not to attend that school again other than in circumstances where he provides his written consent to her so doing. If such notice is given the mother is thereafter restrained from attending at such school until she holds the father’s written agreement that she do so.

(17)The father is to ensure that each school the children attend are authorised to send to the mother emails, school reports, school notices which they send to parents in the ordinary course of business.

(18)The father has leave to publish a copy of the Parenting Orders made herein to each of the children’s schools.

(19)Wherever in these orders there is provision for either party to give notice or communicate with the other then such communication is to take place by email or text message between the parties’ selected email address and notified mobile telephone number.

(20)Each parent is to provide to the other an email address to which written notice can be given to the other and a mobile phone to which a text message may be sent to and received by the other. Each parent is to ensure their email account and mobile phone device is checked no less than one occasion each day to ensure that knowledge of any communication from the other parent is seen and acknowledged.

(21)Should it transpire that the mother elects not to exercise time with the children or have telephone time with them for any period exceeding one month then the father is to send to the mother on the first day of each month where in the previous month she has had no contact with the children an email which provides her with a summary of the children's activities, achievements, milestones and information about them which he considers the mother would be interested to know. Such communication is not to exceed one A4 page of material, however, it is to be more than just in a “dot point” form.

(22)Mr T is restrained from coming into the presence of any of the children, remaining in the presence of any of the children or communicating with any of the children unless he holds a consent in writing from the father permitting same and then only to the extent such written permission or consent allows. He is also restrained from attending any of the children’s schools or any place where it is reasonably predictable the subject children will be.

(23)Should the father have cause to engage any counselling services for any of the children then, if he considers it is necessary or may be helpful to the person providing such service to have access to the reasons for the Court making these orders, he is permitted to provide a copy of same to any such person.

…..

1. An affidavit was filed in support of the mother’s Application – Contravention on 4 May 2018.  There the mother explains the nature of the contraventions she seeks to establish. The mother deposed, among other things that:

   ·The parties’ eldest son H has attended F School at Suburb C from Kindergarten to Year 6. He was enrolled under an enrolment contract signed by each of the parties.

   ·In early 2018 serious concerns arose for the mother in relation to H’s education and she wrote to the Head of the Junior School seeking access to work samples and teaching plans.

   ·The school principal purported to cut off communication with the mother and responded with words including:

   Should there be an issue that you need to raise with the School, I would ask that you first seek permission to do so from the father of your children as per point a) in Section 14 and then direct such requests to myself as the Principal

   ·On 8 March 2018 the father emailed the mother in the following terms:

   This email serves as notice under the Final Court Orders dated 1st December 2017, that at paragraph (3)

   “Whenever the father makes any decision which changes some aspect of the children’s long term arrangements such as schooling, or makes an important decision about some aspect of their health, he is to notify the mother of same in writing.”

   I am hereby notifying you (Mother) that [H’s] contract of enrolment within [F] School is to be terminated!, and a new enrolment contract will commence with me (Father) as sole signatory upon termination of the old contract.

   ·Thereafter the mother communicated to the father and to the principal of F School that she strongly disagreed with the father purporting to alter or cancel her contract with the school.

2. The subpoena proposed by the mother to be addressed to the father would require the father to attend Court to give evidence and to produce the following documents:

   1.All medical records of [Mr Morse] (24 June 2014 – present);

   2.All medical records of [H], [J] and [K] (24 June 2014 – present);

   3.All dental records of [H], [J] and [K] (24 June 2014 – present);

   4.All preschool reports and worksamples for [K] (2016 – 2017);

   5.All school worksamples (including but not limited to Seesaw samples) for [H] and [J] (2017);

   6.All photographs of [H], [J] and [K] (24 June 2014 - present);

   7.All home videos and school/pre-school videos of [H], [J] and [K] (24 June 2014 – present);

   8.All records of babysitting arrangements for [H], [J] and [K] (24 June 2014 - present);

   9.All employment records for [Mr Morse] (24 June 2014 - present);

   10. All counselling and psychologist records for [Mr Morse], as well as [H], [J] and [K] (24 June 2014 - present);

   11. All diagnostic assessments for [Mr Morse], as well as [H], [J] and [K] (24 June 2014 - present);

   12.All records of extra-curricular activities engaged in and planned to be engaged in by [H], [J] and [K] (24 June 2014 - present);

   13.All written correspondence and records of engagement between [Mr Morse] and paramours (24 June 2014 - present);

   14.All documentation of receipts of purchases overseen by Mr Morse for medications for [H], [J] and [K] (1 January 2014 - present);

   15.Copy of any correspondence with [F] school requesting termination of [H’s] enrolment contract.

   16.Copy of any correspondence evidencing the negotiation process for a new contract for [H’s] schooling, and/or communications with [F] School in relation to the mother’s entitlements.

   17.[F’s] letter of termination of the original contract for [H’s] schooling.

   18.[F’s] letter making the new offer for [H’s] schooling.

   19.Whatever document/s [Mr Morse] signed in acceptance of that offer.

   20.Terms and conditions of the new contract for [H’s] schooling.

   21.The existing contracts for [H], [J] and [K’s] schooling.

   22.Statements of debt to [F] School and/or payment plans (if any). 

3. The subpoena proposed by the mother to be addressed to the F School would require the following production:

   2.Copy of all correspondence (electronic or otherwise) between [Mr Morse] and any staff of [F] School, 1 January 2017 to present.

   3.Copy of all diary entires [sic] kept by staff of [F] School in relation to personal conversations with [Mr Morse], 1 January 2017 to present.

   4.Any other documentation expressing negotiations between [F] School and [Mr Morse] in relation to enrolment contracts for H, J and K.

   5.Receipts for payment of school fees for [H], [J] and [K], January 2014 to present.

   6.Current enrolment contracts for [H], [J] and [K].

   7.Initial enrolment contracts for [H], [J] and [K].

   8.Current statements of debt to the school and/or payment plans (if any).

   9.In relation to [H], 1 Jan 2017 to present:

   a)Work produced for [religious education]

   b)Photos of artworks

   c)Informative texts

   d)Imaginative texts

   e)Persuasive texts

   f)Recounts (all accounts produced through the year)

   g)Journal writing assessment

   h)Video of [H] in the role of … in the school production

   i)Evidence of [H] using Shark

   j)[H’s] HIGE timeline for British colonisation of Australia

   k)Literacy support curriculum and any other teaching/learning plans

   10.In relation to [J], 1 Jan 2017 to present:

   a)Work produced for [religious education]

   b)Photos of artworks

   c)Informative texts

   d)Recounts (all accounts produced through the year)

4. The mother affirmed an affidavit on 17 May 2018 in support of an Application in a Case seeking permission for the issue of the subpoenas. In that affidavit the mother explained the reason for seeking subpoenas in the following terms:

   …

   7.In terms of the respondent being subpoenaed to give evidence, a subpoena is necessary as I wish to call him as a witness in the case and I have no assurance that he would otherwise do so.

   8.In terms of the respondent being subpoenaed to produce documents, this is necessary as he has indicated that he will not comply with my Notice to Produce dated 26 April 2018, which seeks the same documents.

   9.On 15 May 2018 at 1:23pm, I emailed [Mr Morse]:

   Dear [Mr Morse],

   I am told that you successfully received service of the following documents this morning:

   Contravention application filed 4 May 2018
   Orders referred to in that application
   Affidavit of myself affirmed 30 April 2018
   Documents referred to in that affidavit
   Notice to Produce dated 26 April 2018

   …, who served you, told me that upon receiving these documents, he understood you to say words to the effect, ‘I won’t be complying with this Notice to Produce as the court has already told me I don’t have to.’

   Please would you confirm whether or not it is indeed your intention to refuse to comply with the Notice to Produce dated 26 April 2018, bearing in mind that Aldridge J’s comments concerning the utility of such an instrument in appellate jurisdiction do not apply in respect of first instance hearings. 

   Yours sincerely,

   [Ms Duarte]

   10.On 15 May 2018 at 1:34pm, [Mr Morse] replied:

   [Ms Duarte],

   I acknowledge the serving/Receiving of the mentioned Documents.  I will not be complying with your Notice to produce!.

   11.The contravention application filed 4 May 2018 raises the following questions:

   a)Are the respondent’s obligations under Order 3 subject to a ‘reasonable sufficiency’ standard? and

   b)Is the respondent’s breadth of discretion under Order 14a limited?

   12.If the answer to either or both of those questions is yes, then breach will be made out in reference to the specific standards imputed by the court.

5. Turning first to the proposed subpoena to the father. The mother cannot call the father as her own witness. In any event in contravention proceedings the respondent has a right to silence until a case is made against him. He is not obliged to give evidence on his own behalf, let alone on behalf of the mother, until a sufficient case is made against him. It is for that reason that the Rules make no provision for the filing of a Response supported by affidavit evidence in respect of such an application. There are other obvious problems with the proposed subpoena. For example, it is drawn so widely as to be vexatious, but it is unnecessary to address those issues.

6. The mother’s request for permission to seek the issue of a subpoena addressed to the father is refused.

7. I turn the subpoena sought in respect of the F School.

8. I should firstly say that there can be no breach by the father of order 14(a) made on 1 December 2017. That order is not addressed to the father at all. It imposes no obligations on the father, he has no discretion to exercise under that order and therefore there can be no question about the breadth of such a discretion.

9. Therefore, insofar as the proposed subpoena would seek evidence to support charges 8, 9 or 10, it is unnecessary and there are no proceedings before the Court based on an arguable case to which the documents sought would be relevant.

10. As with charge 10, charge 7 is an omnibus allegation which would not be capable of being fairly put to the father. Charge 7 cannot be the basis for a subpoena.

11. As the mother explains in her affidavit filed 4 May 2018, on 8 March 2018 the father emailed the mother in the following terms:

    This email serves as notice under the Final Court Orders dated 1st December 2017, that at paragraph (3)

    “Whenever the father makes any decision which changes some aspect of the children’s long term arrangements such as schooling, or makes an important decision about some aspect of their health, he is to notify the mother of same in writing.’

    I am hereby notifying you (Mother) that [H’s] contract of enrolment within [F] School is to be terminated!, and a new enrolment contract will commence with me (Father) as sole signatory upon termination of the old contract.

12. The notification that is the subject of the remaining charges is the father’s notification about the termination of the original contract of enrolment for H at F School and about the making of a new contract of enrolment for H at that same school, with the father as the sole signatory parent. On the mother’s evidence the notification was made in a series of communications on 8 March 2018, 20 March 2018, 27 March 2018, 25 April 2018 and 27 April 2018.

13. The mother’s case is apparently that the father’s notification was insufficient and thereby he can be said to be in breach of order 3. What is missing from the mother’s case, even if she was to establish that there could be a notice that was inadequate to comply with the order, is any indication of the way in which the notification was insufficient.

14. In my view there is not an arguable case to put before the Court.

15. In those circumstances insofar as the proposed subpoena would seek evidence to support charges 1 – 6 inclusive, such a subpoena is unnecessary as there are no proceedings before the Court based on an arguable case to which the documents sought would be relevant.

16. In any event the subpoena is drawn so widely as to constitute an abuse of process. It follows that conduct that could constitute a breach of an order made on 1 December 2017 could only be conduct that occurred after that date. The category of documents at paragraphs 2, 3, 4, 5, 9 and 10 include a call for documents prior to the date of the orders. Paragraphs 2, 3, 4, 5, 6, 7, 8, 9 and 10 call for categories of information that have no obvious connection with the enrolment contract for H. Indeed they include a call for documents about other children. Perhaps the most extreme example is paragraph 10 which calls for “work produced for [religious education]; Photos of artworks; Informative texts; Recounts (all accounts produced through the year)” all in respect of the parties’ son, J. Suffice it to say, those documents could not be relevant to the sufficiency of the father’s notification about the contract of enrolment for H.

1. The mother’s request for permission to seek the issue of a subpoena addressed to F School is refused.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 13 July 2018.

Associate: 

Date:  13 July 2018