Dutnall and Rallin (No. 2) - [2020] FamCAFC 295

FAMILY COURT OF AUSTRALIA

DUTNALL & RALLIN (NO. 2)

[2020] FamCAFC 295

FAMILY LAW – APPEAL – LEAVE TO APPEAL – PRACTICE AND PROCEDURE – Subpoena – Notice of Objection – Where the primary judge upheld the respondent’s Notice of Objection to a subpoena issued to the child’s high school by the applicant – Where there is no doubt as to the correctness of the primary judge’s decision – Where no substantial injustice would result if leave to appeal is not granted – Application for leave to appeal dismissed – Applicant to pay the respondent and the Independent Children’s Lawyer’s costs in fixed sums.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Where the documents sought to be adduced could not show any error on the part of the primary judge – Application dismissed.

Family Law Act 1975 (Cth) ss 4(1), 94AAA(3), 117(2A)

Family Law Regulations 1984 (Cth) reg 15A(2)

Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
Dutnall & Rallin [2020] FamCAFC 265
Hatton v Attorney-General of the Commonwealth of Australia & Ors (2000) FLC 93-038; [2000] FamCA 892
Lenova & Lenova (Costs) [2011] FamCAFC 141
Lietzau & Lietzau [2020] FamCAFC 149
Malloy and Anor & Stopford Malloy [2017] FamCAFC 205
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
National Employers’ Mutual General Association Ltd v Waind & Hill [1978] 1 NSWLR 372
Robeck & Robeck [2018] FamCAFC 201
Tallant & Kelsey (2016) FLC 93-742; [2016] FamCAFC 207

APPLICANT:

Mr Dutnall

RESPONDENT:

Ms Rallin

INDEPENDENT CHILDREN’S LAWYER:

John Spence & Associates

FILE NUMBER:

SYC

3232

2016

APPEAL NUMBER:

EAA

110

2020

DATE DELIVERED:

26 November 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

17 November 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

6 July 2020

LOWER COURT MNC:

[2020] FCCA 2257

REPRESENTATION

THE APPLICANT:

Self-represented litigant (by video link)

SOLICITOR FOR THE RESPONDENT:

Sexton Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Ladopoulos

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

John Spence & Associates

Orders

The application for leave to appeal from the orders of a judge of the Federal Circuit Court of Australia made on 6 July 2020 is dismissed.
The Application in an Appeal to adduce further evidence filed on 12 October 2020 is dismissed.
The applicant pay the respondent’s costs fixed in the sum of $1,863.60 and the Independent Children’s Lawyer’s costs fixed in the sum of $2,001.

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 Dutnall & Rallin (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
SYDNEY

Appeal Number: EAA 110 of 2020
File Number: SYC 3232 of 2016

Mr Dutnall

Applicant

And

Ms Rallin

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

Mr Dutnall (“the applicant”) and Ms Rallin (“the respondent”) are engaged in parenting proceedings concerning their child, Z, who was born in 2005 (“the child”). The matter is listed for final hearing on 12 and 13 April 2021.
On 15 January 2020, the applicant issued a subpoena to the child’s high school seeking a number of documents. The respondent filed a Notice of Objection on 21 February 2020.
On 6 July 2020, a judge of the Federal Circuit Court of Australia upheld the respondent’s objections to paragraphs 2, 3 and 4 of the schedule to the subpoena and stood over consideration of paragraphs 5 and 6 to the final hearing.
The applicant filed a Notice of Appeal on 31 July 2020.
This appeal is being heard by a single judge pursuant to a direction given by the Chief Justice under s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).
Although the substantive proceedings clearly come within reg 15A(2) of the Family Law Regulations 1984 (Cth), an objection to a subpoena is a procedural matter which does not fall within the definition of a child welfare matter (see, for example, Malloy and Anor & Stopford Malloy [2017] FamCAFC 205 at [22]–[26] and the authorities cited by Strickland J in Lietzau & Lietzau [2020] FamCAFC 149 at [65]–[69]).
Leave to appeal is therefore required. I shall return to this in due course.
In order to understand the appeal, it is necessary to record that in 2013, the applicant was charged with many child sex offences against children aged between nine and 14 years. In late 2016, he was sentenced to imprisonment for 24 years with a non-parole period of 18 years.
The applicant’s Initiating Application filed on 28 June 2019 seeks, amongst other orders, orders providing for the applicant and the respondent to have shared parental responsibility for the child, that the respondent keep the applicant informed at all times of the respondent’s and the child’s current address and telephone number and that the respondent ensure regular communication between the child and the applicant by telephone, letters and photographs.
The respondent’s evidence is to the effect that the child does not want to see the applicant, and she opposes the orders sought by the applicant on the basis that they are not in the child’s best interests. The applicant has responded by saying that the respondent is simply controlling the child and manipulating her into that view.
In an attempt to obtain direct evidence of the child’s wishes, the primary judge ordered that a Child Inclusive Conference take place but the child declined to attend.

Application for leave to appeal

Grounds 1, 5 and 6 raise issues of procedural unfairness in different ways but they cannot proceed in the absence of a transcript of the hearing before the primary judge. On 2 November 2020, this Court refused to obtain the transcript for the use of the applicant in this appeal and he was relieved of the obligation to provide it himself (Dutnall & Rallin [2020] FamCAFC 265). However, in the absence of the transcript, the errors asserted in those grounds of appeal cannot be demonstrated and they must fail.
Ground 8 is not a proper ground of appeal.
Grounds 2 and 3 assert that the primary judge erred by finding that the material sought in the schedule to the subpoena was not likely to be relevant to the matter before the Court (Ground 2); by failing to find that the applicant had a legitimate forensic purpose in seeking, inspecting and utilising the child’s school records; and by applying moral considerations over legal principles (Ground 3).
The schedule to the subpoena relevantly provides:
…
2.All and any enrolment, transfer and participation records and any other documents (including electronic) pertaining to the child… including but not limited to:
i)Enrolment forms and applications
ii)Proof of identity records such as birth certificates and declarations
iii)Proof of residential address and school catchment area
iv)Parent identification and all standard and emergency contact details provided
v)Class attendance records
vi)Assessment records, report cards, teacher feedback
vii)Awards and significant events
viii)School fee and financial documents
ix)All and any other related enrolment documents and correspondences.
3.All and any individual or class photographs or video and any other type of image showing the child…
4.All and any correspondences and communications (including emails and other electronic records) pertaining to the child… including but not limited to:
i)Letters and notices sent by the school to either of the child's parents or to any other person or organisation.
ii)Letters or other documents received by the school from either of the child’s parents or any other person or organisation.
iii)Consent Forms and other permissions and correspondences related to excursions, travel (domestic and international), counselling, dance, academic, performance, auditions, and or similar events.
5.All and any other document pertaining to medical issues, scholastic or psychological counselling, personal or career guidance, or any other document or thing pertaining to the behaviour, welfare or protection of [the child].
6.All and any other document pertaining to [the child].
(Emphasis in original)
It is quite clear that documents sought in a subpoena must have some relevance to the issues in the proceedings in which the subpoena has been issued. Accordingly, a “lack of apparent relevance” will be a sufficient ground to set it aside (Hatton v Attorney-General of the Commonwealth of Australia & Ors (2000) FLC 93-038 at 87,606).
The applicant submits that the documents sought in the subpoena will assist in demonstrating that the views of the child are that she wishes to communicate with the applicant and that it is the respondent who is leading her to a contrary view.
It is convenient to take each paragraph of the schedule to the subpoena in turn.
The primary judge found that it was difficult to understand how any of the documents sought in paragraph 2 could pertain to the child’s views (at [5]). Her Honour also found that this paragraph was, in effect, a fishing expedition (at [6]).
As to the first, her Honour was clearly correct. The documents sought are formal records apparently created by people other than the child which, on their face, would not record any information as to the child’s attitude toward the applicant.
The applicant referred to his evidence that school information that he has recently received shows that the child prepared a presentation for a school assessment which she based on her time with him in City B. Paragraph 152 of the applicant’s affidavit filed on 15 January 2020 makes it clear that a more accurate description of that event would be that the child spent time in City B with both her parents at least eight years ago.
The applicant submits that this assessment clearly falls within paragraph 2(vi) of the schedule to the subpoena which seeks “[a]ssessment records, report cards, teacher feedback”. I do not agree, as the documents sought are obviously those prepared by teachers.
Secondly, in any event, it is not at all apparent how a project based on the child spending time in City B with both her parents more than eight years ago would have any relevance to whether the child now wants to communicate with the applicant, or that she is being manipulated into saying that she does not want to do so. A fond memory, assuming for the moment that it is, of events of many years ago, before the family’s circumstances changed irreversibly by the arrest and conviction of the applicant, have no apparent relevance to present issues.
A fishing expedition is an impermissible use of a subpoena to seek a wide range of documents in the hope that something might turn up that may be relevant to the proceeding (Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575; Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250 at 254).
Given the nature of the proceedings before the Court, her Honour’s description is entirely apt.
Paragraph 3 of the schedule to the subpoena sought “[a]ll and any individual or class photographs or video” (emphasis omitted), which includes not only those of the child, but also possibly her classmates. There is no basis whatsoever for the applicant to seek photographs or videos depicting anyone other than the child, and as the primary judge implied, it would be exceedingly improper to use a subpoena to provide photographs or videos of other children to an imprisoned and convicted child sex offender. This is not a moral consideration but a legal one – the Court’s process can only be used for proper purposes.
As to the child in question, the applicant said that the photographs and videos might show that the child was wearing clothes or jewellery, for example, a pendant that he had given her, which would indicate that she thought of him fondly and would therefore wish to communicate with him. There are several impermissible leaps in that logic. Even supposing for a moment that the child was wearing a piece of jewellery that the applicant had given her over eight years ago, nothing could be drawn from that, save for that she liked to wear that piece of jewellery. It would not indicate that she wished to see the applicant.
The primary judge was entirely correct to find that there was no apparent relevance of the photographs or videos to the matters in issue before her Honour. And further, for the reason just given, it was indeed also improper for photographs or videos of the child to be provided to the applicant without her consent or that of the other parent.
As to the documents sought in paragraph 4 of the schedule to the subpoena, her Honour said:
9.Given that the issue in this matter is [the child’s] age, her maturity, and her desire or otherwise for there to be any Orders with respect to information about her being provided to [the applicant], and her views about any future conduct with the [applicant], those matters that are set out at paragraph 4 are not relevant. I do not propose granting access to any documents set out in paragraph 4 of the Schedule.
The applicant submits that the primary judge erred because these documents would establish “the topics, nature and tone” of both the respondent’s and the applicant’s communications with the school (the applicant’s Summary of Argument filed on 11 November 2020, paragraph 60). Clearly, subparagraphs (i) and (iii) fall away because they are documents primarily prepared by the school and which, in any event, cannot disclose anything as to the child’s attitude towards the applicant. The respondent’s attitude is clear, being that she does not want the child to have anything to do with the applicant. It is therefore difficult to see what issue in the proceedings her correspondence to the school would have any relevance.
I do not see any error in her Honour’s ruling.
Paragraphs 5 and 6 were stood over by the primary judge until the final hearing. Her Honour accepted that the documents sought by the applicant may be relevant but considered that they contain material and information personal to the child and, accordingly, were part of the essential issue for determination at the final hearing (at [10]).
In National Employers’ Mutual General Association Ltd v Waind & Hill [1978] 1 NSWLR 372 at 384, Moffitt P said the following as to the inspection of documents:
…It is accepted that the documents should not go beyond the judge against objection of the owner, unless there is valid reason to do so. It is clear that it can only be legitimate to do so, so far as it is necessary in the proper conduct of litigation…
I do not see how it can be an error on the part of her Honour to defer that important consideration until the interests of justice, which may require inspection of the documents, are fully investigated at a final hearing. Further, I have some difficulty in seeing Order 2 made by the primary judge as a decree as defined by s 4(1) of the Act (see Commonwealth v Mullane (1961) 106 CLR 166 at 169; Tallant & Kelsey (2016) FLC 93-742; Robeck & Robeck [2018] FamCAFC 201).
Accordingly, Ground 4 is not made out.
Finally, Ground 7 asserts that the primary judge “erred in misapprehending the basis for including information in the orders sought in the [applicant’s] Initiating Application”. It is difficult to understand what is meant by that. The applicant did not assist. He said: “I only seek this material because its relevance and capacity to better independently inform all parties of [the child’s] thoughts and wishes, and needs” (the applicant’s Summary of Argument filed on 11 November 2020, paragraph 67).
Her Honour said:
2.…The thrust of the [applicant’s] submissions is that there may be information held by the school which may assist the court in understanding what [the child’s] views may be about communication with the [applicant].
The primary judge has fully understood the applicant’s position and Ground 7 cannot succeed.
I am unable to see that the applicant has identified any doubt as to the correctness of her Honour’s decision. Further, as the consideration of paragraphs 5 and 6 of the schedule to the subpoena have been deferred to the final hearing, I am satisfied that no substantial injustice would result if leave to appeal is refused, as that aspect of the matter remains open for consideration (Medlow & Medlow (2016) FLC 93-692 at [57]).
The application for leave to appeal will therefore be dismissed.

Application to adduce further evidence

The applicant sought to adduce further evidence in the appeal, being earlier orders made by judge of the Federal Circuit Court of Australia in property proceedings between the parties in 2017 as to the applicant receiving some of the parties’ photographs, including those of the child, some correspondence from the respondent’s solicitors at that time and a school assessment document.
In oral submissions, it became clear that the school assessment document referred to by the applicant was one that has been discussed earlier. Unfortunately, the applicant did not annex any of these documents to either his affidavit in support of the Application in an Appeal filed on 12 October 2020 or his Summary of Argument filed on 11 November 2020. As they were not before the Court, it was therefore impossible for them to be taken into account. However, in any event, I do not see how any of those documents could show error on the part of the primary judge, which is the purpose of such further evidence (CDJ v VAJ (1998) 197 CLR 172). The application to adduce further evidence will therefore be dismissed.

Costs

In the event that the appeal was dismissed, the respondent sought her costs of the appeal, assessed at scale, in the sum of $1,863.60 and the Independent Children’s Lawyer sought costs in the sum of $2,001. Each sought costs on the basis that the application for leave to appeal was wholly unsuccessful (s 117(2A)(e) of the Act).
As has been described earlier, the applicant is incarcerated and he has no property and almost no income. However, impecuniosity is not necessarily a bar to a costs order, otherwise the impecunious could litigate with impunity (Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12]).
I am satisfied that the circumstances of this matter justify making the costs orders sought.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 26 November 2020.

Associate:

Date: 26 November 2020