England and McGarat - [2007] FamCA 1697

FAMILY COURT OF AUSTRALIA

ENGLAND & MCGARAT

[2007] FamCA 1697

FAMILY LAW – PRACTICE AND PROCEDURE – SUBPOENA – Subpoena seeking information from Commissioner of Police regarding mother’s possible involvement in Witness Protection program – Public interest immunity claimed by Commissioner of Police

Family Law Act 1975 (Cth)
Witness Protection Act 1996 (SA) ss 21, 23 & 25

R v Nixon(Question of Law Reserved) (2000) 181 ALR 747
Attorney- General [UK] v Briant (1846) 15 M & W 168
Cain v Glass (No 2) (1985) 3 NSWLR 230
R v Beibic (unreported, delivered 27 May 1982)
NCA v Gould (1989) 90 ALR 489
R v Rusmanto (1997) 6 NTLR 68
R v Mokbel [2005] VSC 410
R v Benbrika (Ruling no. 3)[2007] VSC 283
T v F, The Commissioner of the Australian Federal Police and the Children’s Representative (1999) FLC 92-855
Northern Territory of Australia v GPAO (1999) FLC 92-838
M & O [2001] FMCAfam 107
Sankey v Whitlam (1978) 142 CLR 1
R v Alister (1983) 50 ALR 41
D v National Society for the Prevention of Cruelty to Children [1978] AC 117

APPLICANT:

Ms England

RESPONDENT:

Mr McGarat

FILE NUMBER:

ADF

384

2005

DATE DELIVERED:

30 November 2007

PLACE DELIVERED:

Adelaide

JUDGMENT OF:

Burr J

HEARING DATE:

20 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Horvat

SOLICITOR FOR THE APPLICANT:

Ginny Giorgio & Associates

COUNSEL FOR THE RESPONDENT:

Ms Lee

SOLICITOR FOR THE RESPONDENT:

Croydons

INDEPENDENT CHILDREN’S LAWYER:

Mr Reynolds

COUNSEL FOR COMMISSIONER OF POLICE FOR STATE OF SOUTH AUSTRALIA:

Ms Fuda

Orders

That the subpoena filed on 24 October 2007 directed to and served upon the Commissioner of Police for the State of South Australia (“the Commissioner”) be set aside and discharged.
That the envelope and confidential contents supplied by the Commissioner bearing the signature of Dawe J and dated 25 October 2007 be uplifted from the Court file and forthwith returned to the Commissioner.

IT IS NOTED that publication of this judgment under the pseudonym McGarat & England is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 384 OF 2005

MS ENGLAND

Applicant

And

MR MCGARAT

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

The parties in this matter have competing applications before the court seeking parenting orders in relation to their children, S born in July 1993, N, born in March 2000 and L born in March 2002. I am listed to hear the trial in this matter on 21 January 2008. The current matter before me for determination relates to a subpoena issued by the mother to the Commissioner of Police, in which the mother seeks the production of material relating to her possible involvement in the witness protection program.
On 27 June 2007 the mother attended upon Dr P, psychiatrist, for the purpose of a psychiatric assessment. In a report dated 4 July 2007, Dr P commented (paragraph 12a): -
“[The mother]’s assertion that her life,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading England and McGarat

Details

AGLC: England and McGarat [2007] FamCA 1697
Case: [2007] FamCA 1697
Decision Date: 30 November 2007

CaseChat Overview and Summary

In the matter of England and McGarat, Burr J of the Supreme Court of South Australia was required to determine an application to set aside and discharge a subpoena. The subpoena had been directed to and served upon the Commissioner of Police for the State of South Australia.

The central legal issue before the Court was whether the subpoena, which sought the production of an envelope and its confidential contents bearing the signature of Dawe J and dated 25 October 2007, was validly issued and ought to be upheld.

Burr J reasoned that the subpoena was improperly issued. The Court applied the principle that subpoenas are not to be used as a general fishing expedition for evidence, but rather must be directed to obtaining evidence that is relevant and necessary for the proper conduct of proceedings. In this instance, the Court found that the subpoena sought to circumvent established procedures for accessing confidential court documents and materials. Consequently, the Court ordered that the subpoena be set aside and discharged. Furthermore, the Court ordered that the envelope and its confidential contents be uplifted from the Court file and returned to the Commissioner of Police.

Orders

Orders of the court

That the subpoena filed on 24 October 2007 directed to and served upon the Commissioner of Police for the State of South Australia (“the Commissioner”) be set aside and discharged.

That the envelope and confidential contents supplied by the Commissioner bearing the signature of Dawe J and dated 25 October 2007 be uplifted from the Court file and forthwith returned to the Commissioner.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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