Frick and Lennon

[2010] FamCA 503

FAMILY COURT OF AUSTRALIA

FRICK & LENNON [2010] FamCA 503

FAMILY LAW – PROCEDURE – Procedural directions – subpoenas

Family Law Act 1975 (Cth)

APPLICANT: Mr Frick

RESPONDENT: Ms Lennon

INDEPENDENT CHILDREN’S LAWYER: Julie Redman

FILE NUMBER: ADC 3076 of 2008

DATE DELIVERED: 25 May 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 25 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr B McQuade

SOLICITOR FOR THE APPLICANT: Adey Lawyers

COUNSEL FOR THE RESPONDENT: Ms A Horvat

SOLICITOR FOR THE RESPONDENT: Christopher Ganzis & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms D Wood

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Alderman Redman

Orders

1. By consent that the order of this Court made on 31 August 2009 be varied to allow the father to require the mother to undergo drug testing in terms of that order and in addition to any requests made by the Independent Children’s Lawyer of the parties for them to undergo drug testing from time to time.

2. That the father have leave to issue subpoenas to Dr G, A Medical Centre and M Medical Centre requiring production of the mother’s medical records from 4 August 2008 to the present time, such subpoena to be returnable before a Registrar at 9:30am on 16 June 2010.

3. That upon production of the said medical records leave to inspect only be given to the Independent Children’s Lawyer.

4. That by 4:00pm on 18 June 2010 the mother file and serve either an affidavit or statement of evidence in chief of Mr M.

5. That further consideration of the inspection of the documents produced pursuant to the said subpoenas and the issue of whether Mr M will be permitted to be a witness in this case be adjourned to 9:00am on Wednesday 23 June 2010 before Strickland J.

6. That these proceedings generally be adjourned to a compliance/ directions hearing before Registrar Thomas at 10:30am on 14 July 2010.

7. That the Application in a Case filed by the father on 24 May 2010 be dismissed and removed from the active pending cases list.

8. That this case be listed for final hearing not before 10:00am on Monday 2 August 2010 with a time estimate of 6 to 8 days.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3076 of 2008

MR FRICK

Applicant

And

MS LENNON

Respondent

EX TEMPORE REASONS

1. This is a Magellan matter which I have been managing.  It has reached the stage where it can be listed for hearing and I propose to list it in a special sitting which is being arranged in this Registry commencing on 2 August 2010 for two weeks.  There are a number of cases that are being looked at to be included in that special sitting which will involve interstate judges and this will be one of those cases.  Just to repeat, I cannot indicate whether the case will be a primary case or a reserve case in that list but that decision will be made by others.  I am told today that there are no issues in terms of availability of counsel or witnesses, as currently advised, which would impact upon the listing of the matter at that time, and I have indicated to counsel that this matter will be listed on 14 July 2010 before Registrar Thomas, as will all other matters in that list, as a final compliance/directions/callover listing.

2. To continue the relevant comments in relation to the preparation of the matter for that hearing.  I have identified with counsel yesterday and today the witnesses that are to be called. On the mother’s side the mother of course will give evidence, and an affidavit of hers is already on file.  The maternal grandfather will also be called and an affidavit of his is already filed.  There will be two police officers, Mr N and Detective Sergeant C, and they will both need subpoenas.  I will give leave in due course for that to occur.

3. The mother is also relying on three medical reports which are annexed to her affidavit filed on 24 May 2010.  Each of the doctors concerned will need to be made available for cross examination.  Mr McQuade, for the father, has indicated he wishes to cross examine them.  There is a further witness that the mother has instructed her legal representatives that she wishes to call and that is a Mr M who is a director of D Security Agency.  He was a former employer of the father.  I have explored the relevance of that witness with Ms Horvat and I am not satisfied on the information currently before that that witness is relevant and should be called.  I will give the opportunity though to Ms Horvat to provide a statement or, if possible, his affidavit of evidence in chief so that I can make a more fully informed decision as to the relevance of that witness.  It may be that in the ultimate I allow that witness to be called but that remains to be seen. 

4. On the father’s side, he of course will give evidence and he is calling both of his parents and they all have affidavits before the court. 

5. With the Independent Children’s Lawyer the witnesses identified are Ms P who is from the Child Protection Services.  There is a report of hers on file.  She will need a subpoena though to attend and give evidence.  Separate to that, the Independent Children’s Lawyer has indicated that the Family Consultant who has prepared a report in this case should also be available for cross examination, and in the usual way that witness would be called by the Court so that each counsel can cross examine him.  However, the Independent Children’s Lawyer will need to make the arrangements and contact Mr Y as to when he will be available for cross-examination once it is clearer as to when the matter will be heard in that two week period that I have just referred to. 

6. In terms of the length of the trial there is a range of six to eight days that counsel have identified and it seems to me that is not unrealistic.  A further issue that has been raised is that although this is a Magellan matter it still is a matter that is within Division 12A, and without an order of this Court there would be certain rules of evidence which would not apply.  I take the view that in Magellan matters because of the subject matter, it is appropriate to apply all the Rules of Evidence strictly and thus I propose to make an order to that effect.

7. A flow on effect of that is that there may be objections to some of the material in the affidavits and I need to make provision for lists of objections to be before the Court.  What I propose to do is in due course issue a chambers order providing for the filing of written outlines, lists of objections, and lists of documents to be tendered, and I will include in that order orders giving leave to issue subpoenas to the witnesses that I have just referred to, leaving alive at this stage, though, the issue of Mr M.  In that regard I propose to make an order today for a statement or affidavit to be filed within three weeks and then for the matter to be listed on a date which I will identify in a moment in the week of 21 June 2010 before me to consider that statement or affidavit. 

8. Turning to the Application in a Case which is before me today, that is an application filed on 24 May 2010 by the father.  I am pleased to record that paragraph 3 of that application is an order that can be made by consent, and I will attend to that in a moment.  Paragraph 2, though, is very much in dispute and there the father seeks leave to issue subpoenas to the three doctors who have provided the medical reports annexed to the mother’s affidavit filed on 24 May 2010.

9. This issue was raised with me on a previous hearing by way of an oral application made by the father.  At that time I declined to make an order on the basis that there would be reports filed by the relevant medical practitioners which I was assured would address the issues that the father wishes to inquire about. That has occurred, and there are three medical reports now before the Court.  Mr McQuade though still pursues the application and I have heard argument about it.  I am not going to repeat the arguments that have been put to me.  They are understandable and reasonable arguments from each party’s perspective and including the Independent Children’s Lawyer.  I propose though to give leave to issue the subpoenas, and my short reason for that is that given that the three doctors concerned will be made available for cross examination, a legitimate line of cross examination would be to refer them to their notes, and thus, in that context those notes would need to be inspected by the cross examiner at the very least.

10. Thus it seems to me that it is not possible in the circumstances that are presented to me to avoid the production of those notes.  The objection to the production of those notes though is an understandable one from the mother’s point of view, and that is that those notes may very well contain sensitive and intimate material in relation to the mother’s health which would be of no relevance to the proceedings in this case and in normal circumstances would not be available for inspection.  Mr McQuade has confirmed, and it is obvious from the affidavit in support of the application, that his client is not interested in that material and, indeed, he would not be able to inspect it in the usual course.

11. What Mr McQuade’s client is concerned about is cross-examining these doctors in relation to, or in the context of allegations that the father makes that the mother has been and continues to take illegal drugs.  That is a very live issue in this case and, in my view, it is a relevant issue and that provides the relevance for these notes to be produced.  However, given the issue of the sensitivity of this material, I propose to initially only allow the Independent Children’s Lawyer to inspect the documents produced and then the Independent Children’s Lawyer can confer with the legal representatives of the parties, and hopefully reaching agreement between them as to what material should be available for inspection and, if necessary, tendered before me.  However, if there is no agreement about that, then in the usual way it will be my decision to determine what, if any, of that material I allow to be inspected and under what conditions. If necessary I can address that at the hearing to determine if Mr M can be called as a witness. 

I certify that the preceding 11 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 25 May 2010.

Associate