FLETCHER and FLETCHER

[2022] FCWA 149

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: FLETCHER and FLETCHER [2022] FCWA 149

CORAM: O'BRIEN J

HEARD: [REDACTED] 2022

DELIVERED : Ex tempore

FILE NO/S: [REDACTED]

BETWEEN: MS FLETCHER

Applicant

AND

MR FLETCHER

Respondent

Catchwords:

SUBPOENAS - Where the husband objects to the production and inspection of documents sought under subpoenas issued at the request of the wife on the grounds of relevance, fishing, and the maintenance of therapeutic confidences - Discussion of relevant principles - Where there is merit in the objections.

PRACTICE AND PROCEDURE - Subpoenas - Where the husband seeks permission to issue subpoenas for the production and inspection of documents relating to the wife's mental health - Where the relevance of documents relating to the wife's mental health 15 years ago and prior to the birth of the children is not readily apparent - Where the subpoenas as drafted are unacceptably broad in any event - Permission refused.

LEGAL PRACTITIONERS - Where the court raises concerns as to the manner in which the parenting proceedings are being conducted, and the level of costs being incurred - Discussion of the obligations of legal practitioners in the conduct of parenting proceedings and litigation more generally - Discussion of the mandated approach to be taken by the court in child related proceedings.

Legislation:

Family Law Act 1975 (Cth)
Family Court Rules 2021 (WA)
Evidence Act 1906 (WA)
Interpretation Act 1984 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Counsel A
Respondent	:	Counsel B

Solicitors:

Applicant	:	Law Firm A
Respondent	:	Law Firm B

Case(s) referred to in decision(s):

A Team Diamond Headquarters Pty Ltd and Anor v Main Road Property Group Pty Ltd and Ors (2009) 25 VR 189

Alsop v Lord Oxford (1833) 39 ER 794

B & Associates (a firm of solicitors) v Bloomfield (2003) FLC 93-155

Chapman v Saunders [2001] FCA 4

Commissioner for Railways v Small (1938) 38 SR (NSW) 564

Dorajay Pty Limited v Aristocrat Leisure Limited [2005] FCA 588

Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290

Hatton v Attorney-General of Commonwealth of Australia & Ors (2000) FLC 93-038

J & B [2008] FamCA 184

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Mandic v Phillis (2005) 225 ALR 760

Martin & Martin and Anor (No 5) [2014] FamCA 954

National Employers’ Mutual General Association Ltd v Waind and Hill; Waind v Hill and National Employers’ Mutual General Association Ltd [1978] 1 NSWLR 372

Quach v Vu & Ors [2009] NSWSC 131

Santos Ltd and Ors v Pipelines Authority of SA (1996) 66 SASR 38

Virgtel Ltd & Anor v Zabusky & Ors (No 2) [2009] QCA 349

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fletcher and Fletcher has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

1The matters initially requiring determination and for which this listing was allocated are the objections to subpoena filed by [Mr Fletcher] ("the husband"). The subpoenas, which all seek the production of documents, were issued at the request of [Ms Fletcher] ("the wife").

2The husband also filed an application seeking an order that [the Counselling Service], the recipient of a subpoena to produce documents issued at his request, comply with that subpoena. He requested that the application be listed for today, asserting that it could be "dealt with swiftly". As will be seen, that assertion was accurate albeit not perhaps for the reason contemplated.

3The husband sought the issue of subpoenas to produce documents directed to Medicare, a [Mental Health Service], [Dr A], and a [Fitness Centre]. Given the potential commonality of issues raised by the husband's objections to the subpoenas issued at the request of the wife, and his request to issue subpoenas, the parties were notified that the request would be considered at today's hearing.

Brief background

4The relevant substantive proceedings relate to the parenting arrangements for the parties' three children, [Child A], born [in] 2008, [Child B], born [in] 2013 and [Child C], born [in] 2015. They relate also to the question of whether a Financial Agreement executed by the parties should be set aside and, if so, what orders if any for spousal maintenance and alteration of property interests should then be made. The financial proceedings were commenced by the filing of the wife's application [in] July 2021. The parenting proceedings were commenced by the filing of the husband's amended response [in] December 2021. The approach taken by the parties to the litigation to date is reflected by the fact that there have been nine hearings, at least 14 affidavits filed, and since February 2022 some 20 subpoenas issued at the request of the parties, leading to the production to date of nearly 600 subpoenaed items. It is also reflected by the very significant amount expended by each of them in legal fees.

5The financial proceedings have been bifurcated, so that the dispute about the Financial Agreement may be determined first. That aspect of the proceedings is scheduled for a readiness hearing, following which it is intended that the matter would progress towards a three-day trial.

6The background to the parenting proceedings is summarised in my judgment published [in early] 2022 ("the early 2022 judgment"). I incorporate that judgment into these reasons to the extent necessary. Those parenting proceedings presently stand adjourned generally, interim orders having been made for ongoing reportable family therapy and the preparation of a report by a Single Expert Witness ("SEW") psychologist. When I enquired of counsel this morning as to the current status in that regard, I was told that family therapy has commenced and is continuing, and that the interviews needed for the preparation of the SEW report have been completed.

The husband's application in a case

7While the application was very recently filed, I propose to deal with it first. I note that the application was apparently served on the entity to which it is directed, [the Counselling Service], only late on Friday afternoon, but that does not raise any difficulty.

8That is so, as the application is misconceived.

9A subpoena is itself an order of the court.[1] An order simply that a party comply with an order is circular and pointless.[2] The consequences of proven non-compliance with a subpoena lie in contempt.[3]

[1] See Martin & Martin and Anor (No 5) [2014] FamCA 954, [44].

[2] See Quach v Vu & Ors [2009] NSWSC 131, [7].

[3] See J & B [2008] FamCA 184, [104]; Chapman v Saunders [2001] FCA 4, [21] - [22] and the authorities there cited.

10The husband's application in a case will be dismissed.

11Counsel for the wife submitted that, the application and supporting affidavit having been provided to the SEW pursuant to the orders made by consent [in] January 2022, orders should be made requiring the return of those documents, asserting them to be irrelevant. Properly, counsel conceded that in that respect the horse had likely already bolted. In addition, it may frankly be observed that the SEW will likely have already received significant volumes of irrelevant material. I am not prepared to take a selective approach to any perceived issue arising from that. If either party is concerned in due course that any opinion expressed by the SEW is influenced by irrelevant matters no doubt that will be the subject of cross examination at any trial.

The present dispute - the subpoena objections

[Dr B]

12At the wife's request, a subpoena was issued directed to [Dr B], a psychiatrist. The subpoena seeks the production of documents in relation to the husband, without temporal limitation, in the following terms:

Copies of all documents including but not limited to:

(a)Diagnoses;

(b)Medications and prescriptions issued;

(c)Correspondence;

(d)Reports;

(e)File Notes; and

(f)Memoranda;

in relation to Mr Fletcher born [redacted].

13The husband objected to production, inspection or copying of the documents on the following grounds, reproduced verbatim:

(a)Relevance;

(b)Fishing;

(c)Confidentiality;

(d)Abuse of process;

(e)Alternative to disclosure; and

(f)Prejudice to therapeutic benefit outweighs probative value.

14In answer to a query from me this morning, consistent with the written outline of submissions filed yesterday, counsel for the husband confirmed that the grounds of objection pursued are relevance, fishing, and what may be regarded as a combined ground of confidentiality and a consideration of whether the risk to the therapeutic relationship between the husband and the doctor in question outweighs the probative value of the confidential material sought.

[The Medical Centre]

15At the wife's request, a subpoena was issued, directed to the general medical practice attended by the husband, the Medical Centre. The description of the documents sought was identical to that appearing in the subpoena issued to Dr B.

16The husband objects to production, inspection or copying of the documents on the same grounds as articulated in shorthand form in relation to the subpoena directed to Dr B, save for the reference to a weighing of asserted prejudice to therapeutic benefit against probative value. Again, at the hearing this morning counsel confirmed that the objections pressed are relevance and fishing.

[The Accountants]

17A further subpoena was issued at the wife's request, directed to the husband's accountants, [the Accountants]. The subpoena seeks the production of documents in the date range [mid] 2018 to [mid] 2022, described as follows:

Copies of all documents including but not limited to:

(a)Correspondence between you and the trustee;

(b)General correspondence;

(c)Trust records;

(d)Trust resolutions;

(e)Authorities;

(f)Distributions;

(g)File notes;

(h)Reports; and

(i)Memoranda;

in relation to the [Fletcher Family Trust] and Ms Fletcher.

18The husband objects to production, and inspection or copying of the documents in the following terms:

"Lack of relevance beyond any correspondence between [him] and [the Accountants] in which [he] purportedly authorises [the wife] to affix his signature in electronic form to documents and for [the Accountants] to operate as if it was signed by him (sic)".

19In the written outline of submissions filed on behalf of the husband, it was said that the subpoena was issued in the parenting proceedings and that the submissions as to relevance should be viewed in that context. In the written submissions filed on behalf of the wife, it was acknowledged that the subpoena was issued in the context of the parenting proceedings, albeit it was submitted that the documents sought would also have potential relevance to the financial case.

20[The Accountants] separately objected, asserting that the tendered conduct money of $25 was insufficient for the collation of a significant volume of documents. Conduct money of $5,000 plus GST was requested. That objection was addressed by the wife through her solicitors, indicating a willingness to agree to that request.

The legal principles

Objection to production as distinguished from inspection and copying

21In written submissions, counsel for the wife noted that the Family Court Rules 2021 (WA) ("the Rules") do not provide for objections to production of documents by persons other than the person to whom the subpoena in question is directed. On that basis, it was submitted that the husband was not entitled to object to production, as distinguished from inspection or copying.

22Leaving aside the clear entitlement of the court to dispense with the Rules,[4] there is another difficulty with that submission. A subpoena will issue only with the court's permission.[5] That permission may be requested without giving notice to any other parties and may be determined in chambers.[6] Where permission is granted without the other party having the opportunity to be heard (as is typically the case and was the case here) the court must retain the power to revoke that permission, or effectively suspend or discharge the effect of it, however that step is characterised.

[4] Family Court Rules 2021 (WA), r 12.

[5] Ibid, r 246(3).

[6] Ibid, r 246(4).

23While the observation made in the written submissions as to the relevant rule is accurate, with no disrespect to counsel, the argument it supports is sterile.

Relevance and fishing

24The party seeking to uphold a subpoena issued at its request bears an onus to demonstrate that there is a legitimate forensic purpose in seeking the production of the documents identified in it.[7] A legitimate forensic purpose is usually established by demonstrating that the documents sought have apparent relevance to the issues in the substantive proceeding.[8] "Apparent relevance" refers to adjectival as distinct from substantive relevance,[9] often expressed as a consideration of whether the documentation called for could possibly throw light on the issue in the substantive proceedings.[10]

[7] Santos Ltd and Ors v Pipelines Authority of SA (1996) 66 SASR 38, 52.

[8] Hatton v Attorney-General of Commonwealth of Australia & Ors (2000) FLC 93-038.

[9] National Employers' Mutual General Association Ltd v Waind and Hill; Waind v Hill and National Employers' Mutual General Association Ltd [1978] 1 NSWLR 372, 381.

[10] See for example Mandic v Phillis (2005) 225 ALR 760, [36].

25A subpoena cannot be used for the purposes of "fishing", a finding of which generally involves 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.[11] A finding of "fishing" can also involve a question of oppression, given that a subpoena will be more readily set aside if large numbers of documents are required to be produced in circumstances where it cannot be demonstrated that they are likely to be sufficiently relevant.[12]

Maintenance of therapeutic confidences

[11] Commissioner for Railways v Small (1938) 38 SR (NSW) 564, 575.

[12] Dorajay Pty Limited v Aristocrat Leisure Limited [2005]FCA 588, [34].

26The objection on this ground in relation to the subpoena directed to Dr B falls, in my view, to be considered by reference not only to common law concepts, but having regard to the provisions of the Evidence Act 1906 (WA) as to the protection of confidential communications given in professional confidential relationships (the "Shield Laws").

Section 20A defines relevant terms as follows:

protected confidence means a communication made by a person in confidence to another person (the confidant) –

(a)in the course of a relationship in which the confidant was acting in a professional capacity; and

(b)when the confident was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant.

harm includes actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm, such as shame, humiliation and fear.

Section 20C (1) provides that:

A court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose –

(a)a protected confidence; or

(b)the contents of a document recording a protected confidence.

27The court may give such a direction on its own initiative, or on the application of the protected confider or confidant.[13]

Section 20C (3) provides that:

a court must give such a direction if satisfied that:

(a)it is likely that harm would or might be caused, whether directly or indirectly, to the protected confider if the evidence is adduced; and

(b)the nature, extent and likelihood of the harm outweigh the desirability of the evidence being given.

[13] Evidence Act 1906 (WA), s 20C(2).

28Section 20C (4) sets out a non-exclusive list of the matters to which the court must have regard for that purpose.

29Cases decided in the courts administering family law in the eastern states, addressing objections of the nature under consideration here by reference to the concept of public interest immunity, must be referred to with caution. Those cases are decided in proceedings to which the Evidence Act 1995 (Cth) applies. That Act contains no express provisions equivalent to the provisions just outlined.

30Section 20C by its terms applies to the adducing of evidence. There is no provision which states that the relevant provisions are to be applied directly in respect of an objection to the production of documents under a subpoena. As has been observed, "that is a curious omission, to say the least" for reasons noted by Pritchard J (as her Honour then was) in Hancock.[14] While her Honour did not find it necessary to decide the point, I respectfully agree with her observation that "if the Shield Laws do not apply in respect of the production of documents under a subpoena, the very protections [they] are designed to provide could be significantly undermined, if not rendered nugatory".[15]

[14] Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290.

[15] Ibid, [140].

31The point was the subject of only brief submissions before me, and for reasons which follow it is unnecessary to decide it. I do no more than express the preliminary view that the provisions apply equally to the production of documents under subpoena for the reasons noted by Pritchard J, and noting that a construction which promotes the purpose or object underlying the relevant law is to be preferred to a construction which would not.[16]

The evidence of the parties

[16] Interpretation Act 1984 (WA) s 18, s 19 and the second reading speech of the Hon Attorney General, Western Australia, Parliamentary Debates, Legislative Assembly, 20 October 2011.

32The parties agreed that the husband should file an affidavit in support of his objections, and the wife should file a responding affidavit. That agreement was embodied in the consent orders made [in] May 2022.

The husband's evidence

33In his affidavit, the husband said the following in relation to the subpoena to Dr B:

(a)that after he referred in his case information affidavit to having seen Dr B for approximately four years, and to having been prescribed a [controlled prescription medication], the wife's then lawyers sent a letter seeking that he "vouch" various statements made in that affidavit. The letter sought "[his] depression diagnosis – [his] [controlled prescription medication] prescription and dosage – medical certificate setting out psychiatric advice regarding [him] taking more than one [controlled prescription medication] tablet per day and – all urinalysis test results pertaining to [his] ongoing [controlled prescription medication] prescription";

(b)that he does not have a medical certificate or urinalysis test results, albeit he does have a prescription. He expressed his understanding that the issues sought to be addressed by the wife are her asserted concerns that he takes more than the prescribed dose of his medication, drinks to excess such that his judgment may be compromised when Child A is in his care, and that he may be "doctor shopping" with the intention of having Child A diagnosed with [a neurodevelopmental disorder] and prescribed [controlled prescription medication] – presumably so as to access greater quantities of the drug for himself.[17] He notes that the wife's proposal is that Child A live with each parent on an equal shared care basis;

(c)he summarised an unedifying exchange of correspondence between the lawyers for the parties as to the relevance of the "vouching" and disclosure requests made on behalf of the wife arising from his case information affidavit;

(d)his lawyers wrote to Dr B raising a series of questions designed to address the matters raised by the wife regarding his case information affidavit, and in her own case information affidavit. The questions, reproduced in full in the husband's affidavit, are detailed and thorough. Dr B provided a nine-page report in response – that report is annexed to the husband's affidavit. The request and report were provided to the wife's lawyers, accompanied by a request that the subpoenas to Dr B and the Medical Centre be withdrawn and a copy of the report be provided to [Ms A], the appointed SEW psychologist; and

(e)that therapeutically he finds his interactions with Dr B very useful, and he is concerned that if his file and notes from private sessions are reviewed his capacity to continue to engage with Dr B or other therapists will be compromised.

[17] Case Information Affidavit filed by the wife on 21 January 2022, [29].

34The husband said the following in relation to the subpoena to the Medical Centre:

(a)that the wife had not raised any concerns about his health other than the allegation that he abuses the prescription provided by Dr B, and has not previously sought disclosure of any other medical records;

(b)that the letter sent by the wife's lawyers to the court seeking the necessary permission to issue the subpoena stated that the husband attends the Medical Centre and referred to him being prescribed [controlled prescription medication], without noting that the prescription was provided by Dr B and not by the Medical Centre. By inference, it is suggested that the wife's lawyers misled the court by omission;

(c)that shortly prior to the request for the issue of the subpoena, certain of the wife's medical records had been inadvertently produced under subpoena by a different medical centre and reviewed by both his lawyers and the SEW. That led to sharp criticism of his lawyers by the wife's lawyers;

(d)that on the same day as seeking the issue of the subpoena to the Medical Centre, the wife sought the issue of subpoenas to other medical professionals seeking Child A's medical records, notwithstanding having a signed authority from the husband to enable her to obtain those records directly without recourse to the subpoena process; and

(e)that any comparison of his actions in seeking the issue of subpoenas directed towards the production of the wife's medical records, and the wife's actions, would be misleading given issues raised regarding the wife's mental health in his case information affidavit, and the wife's failure to respond to those matters in her case information affidavit.

35The husband said the following in relation to the subpoena to the Accountants:

(a)that the issue perceived by the wife arose as he had stated in his case information affidavit his concern about the wife's "propensity to tell mistruths" and seeking that she "seek some form of regular assistance" in that regard – he cited by way of example his alleged discovery that the wife had, without his knowledge or consent, used his electronic signature to make a trust distribution to herself;

(b)he detailed exchanges between the parties' lawyers as to disclosure of relevant documents;

(c)he noted that the letter sent by the wife's lawyers to the court seeking the necessary permission to issue the subpoena referred to the allegation just noted, said that the husband had refused requests for disclosure, and that the Accountants had refused to provide "information pertaining to the issue"; and

(d)he noted that the breadth of the description of the documents sought in the subpoena extends far beyond documents relevant to the identified issue, that his objection as to relevance was limited to documents outside the parameters of that identified issue, and that he had offered and remains willing to consent to a subpoena appropriately narrowed in scope.

The wife's evidence

36In her affidavit, the wife:

(a)confirmed that the subpoenas in question were issued to elicit production of documents she would say are relevant in the parenting case and would assist the SEW in the preparation of her report;

(b)asserted that the husband has "mental health issues" and is prone to "alcohol and drug abuse" in the context of expressing concern as to Child A's attendance at school and the husband's views and approach as to his health issues;

(c)reiterated her asserted concerns regarding the husband's "criticisms of [her] to the children, their schools and their healthcare providers";

(d)made the bald statement that inspection of the documents produced by Dr B, the Medical Centre and the Accountants will "assist in determining and clarifying the issue of risk". How inspection of the accountant's file will inform issues of risk to the children was not articulated;

(e)denied the evidence of the husband in his case information affidavit that she has a "propensity to tell mistruths", responding by saying that she is concerned that his alleged mental health, drug and alcohol issues may be "affecting his capacity to distinguish and depose the truth";

(f)referred in detail to the husband's evidence in relation to alleged transactions initiated by her use of his electronic signature, saying that provision of the broad class of documents sought would "assist in establishing the history of authorities provided to [the Accountants]" for distributions from the trust and "assist [her] case by providing missing details in that regard";

(g)indicated her willingness to meet the objection raised by the Accountants by paying the increased conduct money sought;

(h)complained that she was not involved in the preparation of questions put to Dr B by [Law Firm B] nor given the opportunity to make an enquiry of him in response, while raising no specific criticism of the questions asked or the report itself;

(i)referred at length to an incident in August 2017 where the husband had a single vehicle car accident, she says while under the influence of alcohol and prescription drugs. She then described what she says she was told by an unnamed Uber driver as to the circumstances of that accident and recounted the shared "horror" of the parties at the fashion sense reflected in some of the clothing purchases made by the husband that day while allegedly intoxicated. A copy of an invoice for the repairs to the car is tendered into evidence by annexure to the wife's affidavit, and details of the offending clothing purchased are volunteered. To observe that the relevance of that evidence is not apparent is to err significantly on the side of understatement;

(j)otherwise referred to a series of matters upon which she makes the bald assertion that Dr B's notes might shed some light; and

(k)said that Dr B's report is stated to be based on the assumption that the husband has provided him with an accurate and complete history, and that production of the Medical Centre file will assist in determining whether that assumption is well-founded.

37The written and oral submissions made on behalf of each party were consistent with the matters set out in their affidavits. With no disrespect to counsel, that is unsurprising given the extent to which both affidavits departed from their proper evidentiary function and strayed into argument and submission. It is unnecessary to summarise the submissions made against that background other than in limited respects.

38In written submissions for the wife, by reference to the report of Dr B, it was accurately noted that an expert's report is only admissible if the facts and assumptions upon which it is based are proved by admissible evidence. It is trite that "so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way".[18] It was further submitted that the documents sought are "necessary for an effective cross examination of [Dr B]".

[18] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, 743 [85].

39Those submissions are premature. Dr B's report is not in evidence for the purposes of trial and may never be. If either party seeks to call Dr B as a witness at trial, the question of the production of his notes can be revisited.

40The wife's submission that "although the [subpoena to the Accountants] was issued for parenting purposes, no doubt documents produced… will also be relevant to financial issues between [the parties]" is also premature. It is not suggested that the documents sought have any potential relevance to the preliminary question of whether the Financial Agreement between the parties should be set aside. For obvious reasons it is common ground that the wife's applications for spousal maintenance and alteration of property interests cannot proceed unless and until that preliminary question is determined in her favour.

41It was understandably noted on behalf of the wife that, while steadfastly resisting the inspection of his own medical records, the husband has requested the issue of multiple subpoenas directed to health providers engaged by her. The husband has very recently requested the issue of subpoenas to:

(a)a psychiatrist engaged by the wife over an unknown period extending at least as far back as 2007;

(b)[a] Mental Health Service, on the basis of that psychiatrist having apparently recommended 15 years ago that the wife attend two weeks of cognitive behaviour therapy there; and

(c)a [Fitness Centre], on the basis of the wife having told her general practitioner in November 2021 that she was having therapy with a psychologist there.

42The fact that the husband has sought the issue of subpoenas in relation to the wife's mental health establishes no more than the fact that he asserts that to be a relevant factor in the proper determination of the parenting proceedings. It is, of itself, irrelevant to any consideration of the merits of objections to subpoenas issued at the request of the wife and directed to the question of the husband's mental health. The question of whether the husband should be granted the required permission to issue those subpoenas is a different matter, to which I will return.

43While it may well be that the parties are engaging in a "tit-for-tat" exercise, that is not relevant to the determinations presently required other than in the broader context of the conduct of the parenting proceedings, a matter to which I will return.

Discussion and conclusion - the subpoena objections

44Central to arguments about relevance is the identification of matters in issue. While both parties accuse each other of having mental health issues, the consideration of just what legal and factual matters are properly in issue in the proceedings in the relevant sense (as distinct from merely being aired either gratuitously or without proper regard to relevance) is informed by the relief sought by the parties.

45In his amended response, the husband seeks final orders for equal shared parental responsibility, subject to him having sole parental responsibility for decisions pertaining to Child A's education and health. He seeks orders for Child A to live with him and spend time with the wife as agreed by the parties after taking into account Child A's wishes, and that Child C and Child B live with the parties on a week about basis.

46In the most recent iteration of her substantive reply to the parenting proceedings commenced by the husband's amended response,[19] the wife seeks final orders for equal shared parental responsibility, that Child A live with each party on a week about basis, and that subject to any recommendations in the report of the SEW, Child B and Child C spend increasing time with the husband such that commencing from term three in 2025 they will spend time with him two nights per week.

[19] Three versions of that reply having been filed on behalf of the wife within the space of a week.

47Both parties are expending time, money, court resources and presumably their own emotional resources in the pursuit of documents as to the mental health of the other and documents directed towards the question of the other's propensity to lie, in circumstances where they propose to be jointly responsible for making decisions about major long-term issues about their children, and where they each propose equal shared care arrangements in respect of at least some of the children.

48All that is taking place against the background of the agreed participation of the parties in family therapy, the stated and agreed goals of which are:

(a)to facilitate the relationship between the children and both parties;

(b)to facilitate communication between the parties regarding the children's needs;

(c)to reduce conflict regarding parenting time schedules;

(d)to improve the quality of parenting skills; and

(e)to address emotional behavioural problems of the children.

49In all those circumstances, the wife has failed to persuade me that the subpoenas directed to Dr B and the Medical Centre, even had they not been drawn in terms which are unacceptably broad, presently have a legitimate forensic purpose in the relevant sense. The husband has, properly, responded to the raising by the wife of queries about his mental health and use of prescription drugs by commissioning, obtaining and disclosing a detailed report from his relevant treating doctor. That is more than adequate for present purposes. If the parenting proceedings go to trial, and the matters genuinely in issue develop, change, or at least are properly defined further over the course of the proceedings, the questions may be revisited.

50At present, the fact that the subpoenas to Dr B and the Medical Centre are drawn in unacceptably broad terms both as to the description of documents sought and the unlimited timeframe of their creation, simply reinforces the point. The submissions made on behalf of the husband as to the subpoenas "fishing" are accurate.

51The wife has also failed to persuade me that the subpoena to the Accountants, at least in its broad current form, has a legitimate forensic purpose. There is no identifiable relevance to the parenting proceedings other than in the limited aspect of seeking to rebut the of a subpoena for production of documents directed to the issue of the wife's authority to transact given his allegations made in that regard. If the wife files a suitably amended subpoena and seeks permission to issue it, that permission will be granted.

52As already noted, quite apart from the fundamental issue of relevance, the subpoenas in question are unacceptably and inexcusably broad. It should not be beyond the wit of experienced lawyers to draft properly considered and focused subpoenas rather than apparently taking the requisite care primarily to ensure that they draft in a manner so broad as to reassure themselves that they will not "miss anything".

53That said, those advising the husband might usefully reflect on their entirely justified criticism of the subpoenas issued at the request of the wife when reviewing the subpoenas drafted by them on behalf of the husband.

54The extraordinary breadth of description of the documents sought from the Fitness Centre, which on their face would capture for example any note taken by a staff member as to the wife's physical flexibility, balance and ability to hold a particular yoga pose, need not be commented on further. The proposed subpoena to Dr A seeks documents including, again by way of example only, "minutes from meetings/telephone conversations" as well as contemporaneous notes and test results, "enrolment forms" whatever that may be intended to mean, and "treatments, medications and/or prescriptions", of which only prescriptions can in fact be documents. The proposed subpoena to the Mental Health Service is in identical terms. Those matters alone are self-evidently problematic, even before any consideration is given to the fact that on the husband's own submission the documents sought are likely to have been generated some 15 or more years ago, before the birth of any of the children.

55For those and the other reasons already outlined, the husband's request for leave to issue further subpoenas directed to Dr A, the Mental Health Service, the Fitness Centre and Medicare as conveyed in his solicitor's letter is declined.

56The husband's objections to the subpoenas issued to Dr B, the Medical Centre and the Accountants are upheld, and the subpoenas will be discharged.

57I make it clear that, should the matter regrettably progress towards a trial and should factual disputes relevant to the determinations required at trial arise such that the issue of subpoenas may properly be justified, there is no barrier to the parties seeking the appropriate permission. Any request for permission to issue subpoenas will, of course, be considered on its individual merits as they appear at the relevant time. The submissions already made, accurately, as to the legitimacy of subpoenas being issued for the purpose of exploring matters of credibility may be viewed in that context.

The parenting proceedings more generally

58As may be inferred from the observations already made, I harbour concerns as to the conduct of these proceedings more generally. Before articulating those concerns, I make it clear that the hearing this morning was conducted entirely appropriately by both counsel briefed to appear.

59It is timely to reiterate a number of the statutory requirements for the conduct of parenting proceedings under the Family Law Act 1975 (Cth) ("the Act").

60The court is required to consider the needs of the children and the impact that the conduct of the proceedings may have on them in determining the conduct of the proceedings.[20] The court is also required to actively direct, control and manage the conduct of the proceedings,[21] and to ensure as far as possible that they are conducted in a way that will promote cooperative and child focused parenting by the parties.[22]

[20] Family Law Act 1975 (Cth), s 69ZN(3).

[21] Ibid, s 69ZN(4).

[22] Ibid, s 69ZN(6).

61In giving effect to those principles, the court is required to decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily, decide the order in which the issues are to be decided, and give directions or make orders about the timing of steps that are to be taken.[23]

[23] Ibid, s 69ZQ(1).

62The court may give directions or make orders as to by whom evidence is to be given, and in relation to what matters. There is express power to make orders that evidence of a particular kind or in relation to a particular matter not be presented.[24]

[24] Ibid, s 69ZX.

63Relevantly too, it is not only the court which has express obligations imposed by statute. Lawyers advising parties in parenting cases are obliged to encourage their clients to act on the basis that the child's best interests are met by having a meaningful relationship with both parents, and by being protected from physical or psychological harm from being subjected or exposed to abuse neglect or family violence, with the latter consideration taking precedence.[25]

[25] Ibid, s 60D.

64Quite apart from obligations specific to the conduct of parenting cases, broader principles apply.

65In all litigation, lawyers have a duty to give "sufficient consideration in preparing or presenting their case as to how they might best assist the court in the use of its limited resources",[26] and to do all they reasonably can to ensure that proceedings are conducted in a timely and cost-efficient way.[27] Adducing only that evidence which is relevant to matters actually in issue is fundamental to the discharge of those duties. Similarly, while affidavits must always speak in the voice of the witness, and not in the voice of the lawyer who prepared them, in parenting proceedings lawyers have an obligation to counsel against gratuitous and unhelpful evidence, which is of no probative value in determining the best interests of the children, but which can damage relationships to their detriment.

[26] A Team Diamond Headquarters Pty Ltd and Anor v Main Road Property Group Pty Ltd and Ors (2009) 25 VR 189, [15].

[27] Family Court Rules 2021 (WA), rr 5, 8; Virgtel Ltd & Anor vZabusky & Ors (No 2) [2009] QCA 349, [30].

66Any lawyer practising for a significant time in family law will experience the difficult, troubled, demanding, angry or "high maintenance" client who by his or her actions and attitudes generates additional work in the lawyer's office, seeks to insist on unnecessary work being performed, or seeks to insist on an approach to litigation which does not meet the principles espoused in the Act or the lawyer's duties to the court. The lawyer's obligations in those circumstances, however, are clear and long established, both in the family law context and more generally.

67A separate but related issue arises. I had cause to observe at an earlier hearing that the parties in this case have incurred quite extraordinary legal costs. As at [early] October 2021 the wife had incurred costs of approximately $165,000, and the husband had incurred costs of approximately $143,000. I recognise that some of those costs were incurred in entirely proper efforts to resolve disputes prior to the three months that had then passed since the commencement of litigation. I am now informed that the costs incurred by the wife are in excess of $380,000 and the costs incurred by the husband are in excess of $323,000.

68To put it as neutrally as possible, those costs appear, on their face, to be both disproportionate to the matters in issue in the proceedings and excessive.

69Lawyers have a clear duty to advise and protect a client against unnecessary expense.[28] The client must be both protected, and as far as possible placed in the position of fully understanding the ramifications of either specific actions or a general approach to the litigation both in terms of cost and more generally.[29] Those long established principles are reflected in the main purpose of the Rules to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case,[30] and the mandated responsibilities of parties and their lawyers in achieving that main purpose.[31] They are consistent with the rules regulating the professional conduct of lawyers more generally.

[28] Alsop v Lord Oxford (1833) 39 ER 794.

[29] B & Associates (a firm of solicitors) v Bloomfield (2003) FLC 93-155, [10].

[30] Family Court Rules 2021 (WA), r 5.

[31] Ibid, r 8.

70The fact or perception that a client can "afford" extraordinarily high legal costs is neither here nor there when the duty to that client is properly understood, and the duty to the court is noted. Adherence to the duty to the client is if anything more critical where the client is stressed, angry, or suffering from mental health challenges. Adherence to the duty to the court remains paramount, regardless of any desire or even insistence on the part of the client to an approach which does not meet that duty, even if the client suffers from no such personal challenges.

71It is not possible at this stage, nor would it be desirable, for me to attempt to apportion responsibility between the parties and the two sets of lawyers as to the level of legal costs incurred in these proceedings to date. I am acutely conscious that I do not have anything like the "full picture". I simply make a number of observations for illustrative purposes.

72The approach taken by the wife and those advising her to the pursuit of "disclosure" and "vouching" of statements made by the husband in his case information affidavit is difficult to describe in terms suitably restrained for publication in a judgment. By way of limited examples only:

(a)in the context of responding to evidence of the wife that he had demeaned her, the husband said that he had "publicly praised [her] when [he] gave speeches at various functions." The wife sought copies and/or recordings of the speeches and the dates and events at which they were delivered;

(b)in the context of responding to the template question in the case information affidavit regarding arrangements for the children, and the roles played by the parties, the husband said that he attended all school sports days and school assemblies where any of the children were receiving merit certificate. The wife sought a list of the dates on which the husband attended school sports days and school assemblies; and

(c)in the same context, the husband said that from 2016 to 2020 he took the "lead father role at [holiday destination] for [Child A]'s school 'father-son' long weekend camps which host about 50 – 100 people" while also saying that the wife assisted with the pre-camp preparation. The wife then sought "copies of emails sent between 2016 to 2020 from [husband] regarding the [School A]'s 'father – son' [holiday destination] camp including but not limited to those pertaining to RSVP's, accommodation, [travel] tickets, payments, groceries for the camp, camp itinerary and queries from parents."

73A number of the statements made by the husband in his case information affidavit were objectively unnecessary, albeit they responded to equally unnecessary statements made by the wife in her first affidavit filed in the context of what were then financial proceedings only. A cycle of gratuitous statements by each party, both in affidavits and in correspondence presumably sent on their instructions, followed by a perceived need by the other party to respond, has permeated the litigation.

74At one point, one of the parties sought to file an enforcement application which was not accepted for filing. The parties then purported to agree to that application being dismissed, and to an order in relation to the costs of it. On another occasion, when it was abundantly clear that the hearing scheduled for May 2022 would not afford sufficient time for the matters before the court to be argued that day, efforts were made by my staff to convey to the lawyers my direction that they confer with a view to the matters in dispute being programmed to a suitable hearing date, and the initial hearing being vacated to save time and expense. That did not happen, and I was advised at the hearing that while there had been a flurry of electronic communication, the lawyers concerned had not actually talked to each other. When I insisted that they do so, the matter was promptly and predictably resolved, and consent orders made.

75Those are but a few limited examples of matters which give rise to my concern as to the conduct of these proceedings. There are others. It would be unhelpful to set out in detail examples of the sniping between the solicitors for the parties both in correspondence and in documents filed in the court, but they are myriad. They include gratuitous evidence by the wife as to the husband allegedly having an intimate relationship with his then lawyer, and insinuations by those advising the husband of professional impropriety by the wife's lawyers.

76If either solicitor wishes to suggest that the other has behaved other than professionally, they may take that up with the relevant regulatory authority. If either solicitor on reflection perceives themselves to have difficulty in bringing the required dispassionate objectivity to the conduct of the proceedings, they should review their continued participation in them.

77The parties and their solicitors need to reflect on the matters raised, particularly in relation to the ongoing conduct of the parenting proceedings. I recognise that the financial proceedings are complex and involve enormous sums of money; I am (presently at least) somewhat less concerned about the parties adopting a fiercely adversarial approach to those proceedings than I am about their present approach to the parenting proceedings.

78Having raised those concerns, I place the parties squarely on notice as to my intention to conduct the parenting proceedings in accordance with my obligations set out in the Act and to compel them to do the same. The fact that the matter causing the most concern at present is the conduct of the parenting proceedings should not be misunderstood by the parties as being any form of invitation for them to conduct the financial proceedings in a manner inconsistent with the main purpose of the Rules, and the professional obligations of their legal advisers.

79In the circumstances just set out, I do not propose to entertain any dispute between the parties as to costs arising from the matters determined today. Rather, I will reserve both parties' costs so that they may pursue any such dispute at trial if they seek to do so.

Orders

80There will be the following orders:

1.The objections of the husband having been upheld, [Dr B], [the Medical Centre] and [the Accountants] are excused from compliance with the subpoenas issued at the request of the wife and directed to them.

2.To the extent any documents have already been produced to the Court pursuant to the said subpoenas, they are to be returned to the relevant subpoenaed party.

3.The Form 2 application in a case filed by the husband is dismissed.

4.The request of the husband for permission to issue further subpoenas is refused.

5.The costs of the parties are reserved to trial.

These reasons are the reasons for decision delivered [in] 2022, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

GA

Associate to the Judge

[REDACTED] 2022