Gambetto & Farrelli (No 5)
[2022] FedCFamC2F 918
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gambetto & Farrelli (No 5) [2022] FedCFamC2F 918
File number: SYC 4559 of 2021 Judgment of: JUDGE MURDOCH Date of judgment: 15 July 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of Registrar’s decision filed by the mother upholding in part an Objection to Subpoena to Produce Documents – Where the Subpoena is addressed to the child’s psychologist – Father asserts professional privilege as an unrepresented party in relation to his attendance upon the psychologist – Review upheld.
FAMILY LAW – PRACTICE AND PROCEDURE – Review of Registrar’s decision filed by the father of a decision to reject filing of five Subpoena – Where the father is self-represented – Where the Subpoena as drafted are an abuse of process – Review dismissed.
FAMILY LAW – PRACTICE AND PROCEDURE – Review of Registrar’s decision filed by the father of a decision to reject the filing of a Subpoena in relation to the child’s home schooling – Subpoena not found to be an abuse of process, frivolous or vexatious – Review upheld.
FAMILY LAW – PRACTICE AND PROCEDURE – Review of Registrar’s decision filed by the father of a decision to reject the filing of Applications – Contempt listing the mother and the former Independent Children’s Lawyer as respondents – Where it is not possible to articulate a charge of contempt on the material contained in either of the Applications that involve a flagrant disregard or challenge to the Court – Where the Applications on their face appear to be an abuse of process – Review dismissed.
Legislation: Family Law Act 1975 (Cth) ss 10D, 112AP
Evidence Act 1995 (NSW) ss 117, 120
Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) Sch 1, rr 1.04, 2.24, 6.01, 6.04, 6.05, 14.05, 14.07
Federal Circuit and Family Court of Australia, Central Practice Direction - Family Law Case Management, 1 September 2021, pars 5.21, 5.22
Cases cited: Alister v R (1984) 154 CLR 404; [1984] HCA 85
Ganem & Ganem (No 2) [2013] FamCA 257
Hamilton v Oades (1989) 85 ALR 1
Hunt & Atkins [2012] FamCA 911
Marsden & Winch (2013) FLC 93-560; [2013] FamCAFC 177
Merhi & Merhi and Ors (No 3) [2018] FamCA 961
Oakley & Millar [2019] FamCAFC 12
Oceanic Sunn Line Special Shipping Co Inc v Fay (1988) 79 ALR 9
Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66
Seven Network Ltd v News Ltd (No 5) (2005) 216 ALR 147; [2005] FCA 510
Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90
Division: Division 2 Family Law Number of paragraphs: 68 Date of hearing: 8 July 2022 Place: Parramatta The Applicant: Litigant in person Counsel for the Respondent: Mr Gardiner Solicitor for the Respondent: Worland Family Lawyers Solicitor for the Independent Children's Lawyer: Mr Holmes ORDERS
SYC 4559 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GAMBETTO
Applicant
AND: MS FARRELLI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
15 JULY 2022
THE COURT ORDERS THAT:
1.Orders 1, 2 and 6 made by the Judicial Registrar on 13 April 2022 are discharged.
2.Leave is granted to the parties and the Independent Children’s Lawyer to inspect all material produced under subpoena by Ms B, Psychologist.
3.The Notice of Objection – Subpoena to Objection to Ms B, Psychologist filed by the Father on 9 March 2022 is dismissed.
4.The Application for Review filed by the Mother on 9 May 2022 is otherwise dismissed.
5.The Application for Review filed by the Father on 10 May 2022 is dismissed and the decision of the Judicial Registrar on 3 May 2022 to refuse for filing Subpoena to Produce Documents to the following is upheld:
(a)Mr C, as responsible officer at D Pty Ltd (“the D Pty Ltd Subpoena”);
(b)Mr E as CEO at F Pty Ltd (“the F Pty Ltd Subpoena”);
(c)Mr G in personal capacity and as responsible office at Company H, Company J and his family office (“the Mr G Subpoena”);
(d)Ms Farrelli (the respondent mother); and
(e)Ms K.
6.Leave is granted to the Father to file Subpoena to Produce Documents to the NSW Education Standards Authority.
7.The Application for Review filed by the Father on 23 May 2022 is otherwise dismissed.
8.The Application for Review filed by the Father on 15 June 2022 is dismissed and the decision of the Judicial Registrar on 26 May 2022 to reject for filing Application-Contempt listing the Mother as the Respondent and Application – Contempt listing the former Independent Children’s Lawyer, Mr L, as the Respondent is upheld.
9.In the event the Mother seeks costs in relation to this Judgment, then within 7 days she is to file and serve a Minute of Order sought, written submissions of no more than 2 pages and an updating Financial Statement if required.
10.A Responding Minute of Order sought, written submissions of no longer than 2 pages and an updating Financial Statement if required is to be filed by the Father within 14 days.
11.Any costs determination will be dealt with in Chambers on 3 August 2022 with no appearances required by the parties.
THE COURT NOTES THAT:
A.In accordance with paragraph 5.22 of the Federal Circuit and Family Court of Australia, Central Practice Direction - Family Law Case Management, 1 September 2021 leave must be sought by both parties as part of any further interlocutory application that may be filed in the proceedings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Gambetto & Farrelli has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
These are parenting proceedings relating to the child of the relationship, X born in 2013 commenced by the father on 21 June 2021.
Over the 12 month duration of this litigation the father has filed 4 applications seeking interim orders, 6 applications for review of a decision of a delegated judicial officer, 1 Application-Contempt, and 1 Application in a Proceeding that attached to it the previously identified same Application - Contempt. Excluding the hearing before me on 8 July 2022 to date the matter has had:-
·four interim hearings before Judges of this Court;
·two interim hearings before a Senior Judicial Registrar;
·two defended hearings before a Judicial Registrar; and
·a joint full day Dispute Resolution Conference; together with
·various directions hearings to try and progress the substantive proceedings.
The father has commenced satellite proceedings in the District Court seeking relief for defamation against the mother and her legal representative.
This is the determination of the following applications listed before me on 8 July 2022:-
·Application for Review filed by the mother on 9 May 2022;
·Application for Review filed by the father on 10 May 2022;
·Application in a Proceeding filed by the father on 12 May 2022;
·Application for Review filed by the father on 23 May 2022; and
·Application for Review filed by the father on 15 June 2022.
The Application in a Proceeding filed by the father on 23 May 2022 attaching a duplication of an Application - Contempt the subject of the Application for Review filed on 15 of June 2022 was heard and determined by me on 7 July 2022. These reasons assume familiarity with the reasons I delivered on 7 July 2022 dismissing such application.
LITIGATION HISTORY
As is self- evident from these reasons, this matter has consumed considerable court resources of both judicial officers and delegated judicial officers since its inception. These reasons record the disproportionate application of court judicial resources to this matter at the expense of the remaining litigants requiring the court’s assistance. A detailed history of the litigation to date would be voluminous. A brief overview is as follows:-
·A defended interim hearing was conducted by a Senior Judicial Registrar on 28 September 2021. On that occasion, Orders and directions were made that provided for X to live with the mother and spend time with the father for periods during the day only until the father was living in accommodation that provided a separate bedroom for X and thereafter moving to overnight time each alternate weekend and day time each Thursday upon once such accommodation was secured. Further Orders were made for X to spend time with each of the parties on special occasions together with injunctive Orders restraining certain conduct of the parties.
·The father filed an Application in a Proceeding on 22 December 2021 seeking an urgent listing of his interim application to in reality vary the interim Orders made less than 3 months previously so that X spend further time with the father than already ordered to “normalise his time to what it was before these proceedings were initiated.”[1] The father further sought orders that the commissioning of the Family Report be postponed for a period of 6 months and several injunctive orders restraining the mother’s behaviour. The mother sought that such application be dismissed together with an order for costs.
[1] Application in a Proceeding filed on 22 December 2021 by the father.
·On 1 February 2022 the father filed an Application in a Proceeding attaching the form Application – Contempt listing the mother as the respondent. This application was struck out by a Judicial Registrar on 9 February 2022.
·On 4 February 2022 the father filed a further Application in a Proceeding seeking that it be listed for hearing urgently on 9 February 2022. It sought various orders including a restraint upon the mother from moving her residence to N Street, Suburb O or any other address further than 5km from her current place of residence together with an order that any of X’s extra-curricular activities that took place more than 5km from either of the parties’ residences be cancelled. In the alternative the father sought orders that the mother pay various costs the father would incur by relocating his residence to within 1.5 km of N Street, Suburb O including the costs of breaking his current lease, the difference in rental costs for a comparable place of residence, the costs of relocating including for insurance for high value items and his costs of losing 2 days work. It further sought to discharge Mr L as the Independent Children’s Lawyer together with orders discharging the appointment of an Independent Children’s Lawyer in the proceedings. The mother’s Response to such application sought to amend the changeover place for X and that a further injunctive order be made restraining the father recording changeovers of X between the parties.
·On 9 February 2022 a Judicial Registrar listed both of the father’s interim applications for hearing before a Senior Judicial Registrar on 9 March 2022. Directions were made that a Single Expert be appointed to enquire into and report upon issues relating to the welfare of X. The application to discharge Mr L as the Independent Children’s Lawyer as sought in the Application in a Proceeding filed by the father on 4 February 2022 was dismissed.
·On 2 March 2022 the father filed an Application for Review seeking to review Orders 4, 5, 6, 16, and 17 of the Orders made 9 February 2022. Such Orders sought to be reviewed related to the filing and serving of documents with respect to the interim hearing listed on 9 March 2022, the payment by the father of the Single Expert’s fees with each party to be responsible for one half of the payment of the Single Expert’s attendance for the purposes of cross-examination at the final hearing. This Application was heard and determined on a defended basis by Judge Campbell on 14 April 2022. His Honour in effect confirmed the Orders made by the Judicial Registrar that the father shall pay the Single Expert’s fees and that each party to be responsible for one half of the payment of the Single Expert’s attendance for the purposes of cross-examination at the final hearing.
·On 9 March 2022 the father filed Notices of Objection to Subpoena issued by the Independent Children’s Lawyer seeking production of documents from:
·Ms B, Psychologist C/o P Child Psychology; and
·Dr Q, C/O R Clinic, GP.
·The Objections to Subpoena were heard on a defended basis by a Judicial Registrar and on 13 April 2022 such objections were in part upheld. The mother has filed an Application for Review of some of these Orders.
·The matter was listed for interim hearing on the two outstanding interim applications filed by the father before a Senior Judicial Registrar on 9 March 2022. Despite a Judicial Registrar having previously dismissed the father’s prior application to discharge Mr L as the Independent Children’s Lawyer the father again sought such an order in his Case Outline filed on 8 March 2022 together with an order restraining the Independent Children’s Lawyer from selecting Ms S as the Single Expert.
·On 16 March 2022 the father filed an Application for Review of Directions made by a Senior Judicial Registrar on 23 February 2022 to prepare the matter for the interim hearing including the provision by the father to the parties and the court a precise minute of order that would be sought by him at the interim hearing on 9 March 2022. This Application was filed after the interim hearing had occurred. The nonsense of filing such an application after the interim hearing had been conducted is self-evident. Unsurprisingly, when such Application was heard by Judge Young on 26 April 2022 it was dismissed with the father ordered to pay the mother’s costs.
·On 25 March 2022 the Senior Judicial Registrar delivered judgment on the two outstanding interim applications and ordered that the applications filed by the father on 22 December 2021 and 4 February 2022 and their responses thereto be dismissed with the costs of the Independent Children’s Lawyer and the mother reserved. The substantive proceedings were referred to the National Assessment Team for a compliance and readiness event. The father filed an Application for Review of the Orders made on this date in their totality on 15 April 2022. Judge O’Shannessy heard the Application for Review on a defended basis on 3 June 2022 and judgment is reserved.
·The father filed an Application for Review on 10 May 2022 of the rejection for filing of various Subpoena to Produce Documents sought by the father.
·On 12 May 2022 the father filed a further Application in a Proceeding seeking that various filed documents of the mother be struck out and not be provided to the Single Expert.
·On 23 May 2022 the father filed an Application for Review of a decision made on 17 May 2022 to reject a further Subpoena sought to be filed by him.
·The father filed a second Application in a Proceeding on 23 May 2022 attaching to it an Application - Contempt listing the former Independent Children’s Lawyer as the respondent. That application was dismissed by me on 7 July 2022.
Mr L is no longer acting as the Independent Children’s Lawyer; Mr Holmes filing a Notice of Address for Service on 16 June 2022. Mr Holmes, the current Independent Children’s lawyer attended Court on 8 July 2022 and provided the Court with details as to his future actions in the matter. Mr Holmes did not wish to be heard with respect to the current applications before the Court and in those circumstances his further attendance was excused over the objection of the father.
At the hearing of the matter on 8 July 2022, the Application in a Proceeding filed by the father on 12 May 2022 was not pressed and by consent it was withdrawn subject to the question of costs.
APPLICATIONS FOR REVIEW
Pursuant to rule 14.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) a party may seek a review of an exercise of power by a Registrar by filing an Application for Review within 21 days of the Registrar’s decision. The Review Applications were filed within such time frame.
Rule 14.07 of the Rules states that the hearing of an Application for Review of a Registrar’s decision is an “original hearing”; that is, the Court will hear the whole matter afresh rather than determining whether the original decision was in error. The Court may receive further evidence in addition to the evidence before the Registrar: rule 14.07(2).
Application for Review filed by the Mother on 9 May 2022
On 15 February 2022 the prior Independent Children’s Lawyer issued a Subpoena to Produce Documents directed to Ms B, Psychologist for all her documents relevant to the X and the father (“the Psychologist Subpoena”). Ms. B is X’s treating psychologist. The father attended upon Ms B on 24 August 2021.
The father filed a Notice of Objection to the Subpoena on 9 March 2022. This Objection was heard by a Judicial Registrar and Orders made on 13 April 2022.
The mother seeks a Review of the following Orders-
1. The Notice of Objection – Subpoena filed by the Applicant on 9.3.2022 in respect to the subpoena addressed to [Ms B] (the [Ms B] Supoena) is in part upheld.
2. The [Ms B] Subpoena is modified to exclude records of the Applicant’s attendance on [Ms B] on 24 August 2021.
6. For the avoidance of doubt, the parties, their legal representatives and the Independent Children’s Lawyer are not permitted to inspect or copy documents contained in subpoena packets S10 and S15, those subpoena packets containing documents produced to the Court in response to the [Ms B] Subpoena prior to the determination of the Notice referred to in order 1 herein.
12. There is to be no order as to costs in respect to the Notices of Objection – subpoena subject of the orders herein.
The father relies upon the following documents in support of his objection: –
·Notice of Objection filed by the father on 9 March 2022;
·paragraphs 9 – 21 of the father’s affidavit filed on 4 July 2022; and
·emails to and from the father, the mother and the mother’s legal representative marked as Exhibit A.
The mother relies upon the following documents:
·Orders of the Judicial Registrar made 13 April 2022;
·part E of the schedule to the Subpoena to Produce Documents to Ms B filed 15 February 2022; and
·paragraphs 3 – 7 of the mother’s affidavit 7 July 2022 .
I have of necessity read the mother’s Application for Review filed 9 May 2022.
The father raised objection to inspection of the material produced under Subpoena by way of his Notice of Objection-Subpoena on the grounds of “professional privilege.” The father deposes that he “paid Ms B to have a conversation on 24 August 2021 for the dominant purpose of preparing for these proceedings due to Ms B and the mother refusing to disclose any information otherwise. As was ruled by a Judicial Registrar the conversation fell under s 120 of the Evidence Act.”[2] The father submitted that he attended upon the psychologist on 24 August 2021 for the dominant purpose of preparing for these proceedings due to the mother and the psychologist refusing to disclose any information with respect to X’s attendances upon her and that such attendance occurred whilst these proceedings were on foot. He submitted that the purpose of his attendance was not for the provision of medical treatment or therapy but rather his attempt to obtain information as to X’s attendances upon her. The father submits that such conversation therefore falls within the parameters of s 120 of the Evidence Act 1995 (NSW). He asserts that if such information is provided to the mother it will defeat his current claim before the District Court for defamation as against the mother and the mother’s legal representative.
[2] Father’s affidavit filed on 4 July 2022, paragraph 14.
The mother’s submissions were that the material has apparent relevance and that even if s 120 of the Evidence Act 1995 (NSW) were to apply the father should not be having confidential communications with X’s psychologist in any event. I am satisfied the material has apparent relevance.
Section 120 of the Evidence Act 1995 (NSW) provides as follows:-
120 Unrepresented parties
(1)Evidence is not to be adduced if, on objection by a party who is not represented in the proceeding by a lawyer, the court finds that adducing the evidence would result in disclosure of—
(a)a confidential communication between the party and another person, or
(b)the contents of a confidential document (whether delivered or not) that was prepared, either by or at the direction or request of, the party,
for the dominant purpose of preparing for or conducting the proceeding.
At this juncture in the litigation, the documents that have been produced are not sought to be adduced into evidence – they are merely sought to be inspected. In those circumstances I find that section 120 of the Evidence Act 1995 (NSW) does not apply. The father has not established any common law claim for privilege to prevent inspection of the documents.
If that conclusion is incorrect, the father bears the onus of establishing to the requisite degree each of the integers to claim “professional privilege.” The question that arises now is - did the father engage in a confidential communication with Ms B?
A confidential communication is defined in s 117 of the Evidence Act 1995 (NSW) as:
…a communication made in such circumstances that, when it was made—
(a) the person who made it, or
(b) the person to whom it was made,
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
A confidential document is defined in s 117 as:
…a document prepared in such circumstances that, when it was prepared—
(a) the person who prepared it, or
(b) the person for whom it was prepared,
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
The father did not establish an evidentiary foundation as to the communications between he and Ms B to attract any confidentiality. He has not established that it was a confidential attendance. It would be somewhat of a nonsense to have a circumstance where evidence as to attendances by the mother on the therapist providing a history of X and X’s attendances upon the psychologist forms part of the evidence before the Court but the father’s attendance upon the therapist could somehow be construed as confidential.
I am mindful that the communication between the father and Ms B was not as his therapist: see Hunt & Atkins [2012] FamCA 911. The attendance by the father upon the psychologist was not in the form of family counselling and therefore s 10D of the Family Law Act 1975 (Cth) does not apply. The father did not engage the psychologist for therapeutic counselling where disclosure of his medical notes of the counselling would damage the bond of trust established between a patient and the treating medical practitioner.
Accordingly the father’s objection will be dismissed and the Application for Review filed by the mother will be upheld.
By declining to set aside a Subpoena the Court is only dealing with the question of the preliminary use of the documents, it does not necessarily mean the documents will then be admissible at the final hearing. That is, the father may still object at a final hearing to the tender of documents.
REJECTION OF DOCUMENTS FOR FILING
The balance of the applications before the Court are reviews of multiple decisions of a Judicial Registrar to reject documents for filing pursuant to rule 2.24(e).
Rule 2.24(1) states that:
(1) The court may reject a document filed or received for filing if the document:
(a) is not in the proper form in accordance with these Rules; or
(b) is not executed in the way required by these Rules; or
(c) does not otherwise comply with a requirement of these Rules; or
(d) is tendered for filing after the time specified in these Rules or an order for filing the document, or is otherwise contrary to directions given; or
(e) on its face, appears to the court to be an abuse of process, frivolous, scandalous or vexatious; or
(f) is tendered for filing in connection with a current proceeding in a registry that is not the filing registry; or
(g)is filed electronically and the person filing the document has not complied with the court’s electronic filing procedures.
Pursuant to r 2.24(3) of the Rules a person may apply for review of a Judicial Registrar’s decision to reject a document filed or received for filing pursuant to the above rule.
Whilst the words “frivolous” and “vexatious” are not defined in the Family Law Act 1975 (Cth) (“the Act”) the Full Court of the Family Court of Australia (as it was then known) noted in Marsden & Winch (2013) FLC 93-560, 87,509 at [79], 87,518 at [148]; [2013] FamCAFC 177 that:-
·the explanatory guide to the Rules provides an explanation of “frivolous” as not worthy of serious consideration, insupportable in law, disclosing no cause of action or groundless…. and “ vexatious” as “…having no reasonable prospect of success.” and
·it appeared to be well settled that the term “abuse of process” includes proceedings brought for an improper purpose or which are “frivolous, vexatious or oppressive”.
The Full Court then referred to Ridgeway v The Queen (1995) 184 CLR 19, 75; [1995] HCA 66 where Gaudron J said:
…no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to "defined and closed categories" because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case.
(Footnotes omitted)
Application for Review Filed by the Father on 10 May 2022
On 28 April 2022, the father sent an email dated 27 April 2022 to [email protected] and [email protected] requesting Subpoena to be issued to:
(a)Mr C, as responsible officer at D Pty Ltd (“the D Pty Ltd Subpoena”);
(b)Mr E as CEO at F Pty Ltd (“the F Pty Ltd Subpoena”);
(c)Mr G in personal capacity and as responsible office at Company H, Company J and his family office (“the Mr G Subpoena”);
(d)Mr Farrelli (the respondent mother); and
(e)Ms K.
The father’s letter in support of leave being granted to issue such Subpoena is marked as Exhibit B in these proceedings.
A Judicial Registrar refused that application on 3 May 2022.
The father filed an Application for Review of such decision on 10 May 2022. In support of such Application for Review the father relies upon the following documents: –
(a)the Application for Review filed 10 May 2022;
(b)Exhibit B; and
(c)paragraphs 1 to 23 of the father’s affidavit filed 4 July 2022.
The mother relies upon pages 8 to 10 of her affidavit filed on 7 July 2022.
The father deposes that such Subpoena is sought “due to respondent’s non-disclosure, false disclosure and contradictory accounts”[3] and that such Subpoena are sought to understand the mother’s work schedule and its impact on the mother’s time with X in circumstances where she home schools X. The father deposes further that such material is relevant to the truthfulness of the mother’s financial disclosures.
[3] Father’s affidavit filed 4 July 2022, paragraph 23.
The mother submits that the Subpoena may have been rejected for filing as they lack precision or clarity and they are a fishing expedition in circumstances where this matter does not involve property proceedings. The mother deposes as to the nature of her current employment with T Pty Ltd and D Pty Ltd as a Chief Financial Officer. She deposes that she ceased work for F Group in February 2022.
A subpoena is in effect an order of the Court made on an ex parte basis requiring the addressee of the subpoena to produce documents. “For that reason care must be taken in issuing subpoenas and care must be taken in drawing their terms”: Merhi & Merhi and Ors (No 3) [2018] FamCA 961 at [26].The Court is obliged to intervene to jealously guard against the invasion of the private rights of a stranger to the litigation occasioned by the operation of a subpoena. A subpoena must not cast a serious and unfair or unreasonable burden or prejudice upon the respondent to the subpoena: Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90. It must specify with reasonable particularity the documents to be produced. The subpoena must not be “seriously and unfairly burdensome, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment”: Hamilton v Oades (1989) 85 ALR 1 at 11; Oceanic Sunn Line Special Shipping Co Inc v Fay (1988) 79 ALR 9 at 45, Seven Network Ltd v News Ltd (No 5) (2005) 216 ALR 147 at 151 [12]; [2005] FCA 510. It is not legitimate to use subpoena for the purposes of discovery from a stranger to the cause. It is not to be used as a fishing expedition: per Gibbs CJ in Alister v R (1984) 154 CLR 404; [1984] HCA 85.
The addressee of the Mr G Subpoena is too broad and lacks clarity. It seeks documents from both Mr G in a personal capacity, as the responsible officer of Company H, Company J and “his family office.” The schedule further seeks documents from “any entities affiliated with you.” It casts a serious, unfair and unreasonable burden on the recipient respondent to the Subpoena. Its terms are so board as to be oppressive. It does not identify the specific category of documents required and requires the recipient to conclude what categories of documents fall within those sought in paragraphs 1 to 5. The material as sought is speculative. The Subpoena as drafted is an abuse of process and is rejected for filing.
The documents sought in the F Pty Ltd Subpoena are too broad as to be oppressive. It seeks documents relating to an unrelated party. It requires the recipient to form a view as to what documents would fall within its terms. The material sought in paragraph 7 has no apparent relevance in these proceedings. The Subpoena as it is currently drafted is an abuse of process and is rejected for filing.
The material sought in the D Pty Ltd Subpoena mirror those sought in the F Pty Ltd Subpoena and is rejected for filing on the same basis.
The father submits that leave should be granted to issue a Subpoena to the mother herself.
The father submits that such Subpoena is required as there has been a “fundamental lack of disclosure as to what X does.” The father also asserts a subpoena is required as the mother has made false disclosures. When asked why the father has not sought to file subpoena to the various third-party institutions in that alleged circumstance rather than to the mother herself the father’s response was that they would be refused for filing as he is being portrayed as the vexatious litigant.
The mother submits that there is no utility to the Subpoena. The mother took the approach that the Subpoena was effectively a notice to produce and says that the material is now deposed to in her affidavit filed on 7 July 2022. In reply the father asserts that there is nothing in the mother’s affidavit that answers the documents sought in this Subpoena.
Unless there are exceptional circumstances a party should not issue a subpoena to another party. The mother’s obligation as to disclosure is set out in 6.01 and 6.05 of the Rules. The documents sought by the father in any event are so wide as to be oppressive. I am satisfied that the Subpoena is an abuse of process and should be rejected for filing.
The father submits that leave should be granted to issue the Subpoena to Ms K. Whilst sought to be filed as a Subpoena to Produce Documents, the schedule attached requires Ms K to provide accounts of various things including her observations of the relationship between X and his mother, X and his father and her relationship with X since 2018 rather than the production of documents already in existence in her possession. This is not the purpose of a subpoena to produce documents and is not capable of being complied with as required. The Subpoena to Ms K is rejected for filing as an abuse of process.
Application for Review filed by the Father on 23 May 2022
On 23 May 2022 the father filed an Application for Review of what he purports to be a decision made on 17 May 2022 and seeks:
1.Respondent be held in contempt of Court for obstructing provision of information to the applicant by NSW Education Standards Authority under Order 11 made on 28 September 2021.
2.Respondent be held in contempt of Court for failing to comply with Order 13 made on 28 September 2021.
3.Subpoena to NSW Education Standards Authority be issued for the production of all documents, communications, notes, assessments and any other information concerning initial and continious registration of [X[ for home-schooling.
(As per the original)
The father advised the Court that the only orders sought by him pursuant to such application is that he be granted leave to issue Subpoena to the New South Wales Education Standards Authority for the documents relating to X’s home schooling.
Having read the :-
(a)Application for Review filed 23 May 2022; and the
(b)Draft Subpoena to NSW Education Standards Authority (Attn: Homeschooling Unit) and affording Counsel for the mother the opportunity to provide oral submissions I did not need to hear from the father further with respect to this application. Whether X should continue to be home schooled or attend a public school is an issue for determination at the final hearing. I am satisfied in those circumstances that the subpoena is not an abuse of process, frivolous or vexatious and accordingly will grant leave to the father to file such Subpoena.
This only allows the Subpoena to be filed and served as sought. There may still be an objection raised by the addressee of such Subpoena to the production of documents or by the parties to the inspection of any material produced.
Each party is directed to the clear and unequivocal codification in r 6.04 as to the use of documents obtained during the course of these proceedings, irrespective of whether documents have been obtained by way of disclosure or Subpoena. Contravening such a rule is potentially a contempt pursuant to s 112AP of the Act.
Application for Review Filed by the Father on 15 June 2022.
On 24 May 2022 the father attempted to file two Applications – Contempt. One such application recorded the mother as the respondent. The second such Application recorded the former Independent Children’s Lawyer, Mr L, as the respondent.
The father was advised on 26 May 2022 that a Judicial Registrar had rejected the filing of the applications pursuant to r 2.24. On 15 June 2022 the father filed an Application for Review of this decision.
The father confirmed to the Court that he wished to press both Applications - Contempt pursuant to s 112AP of the Act, despite Mr L no longer appearing as the Independent Children’s Lawyer in the matter.
I have read the following documents:-
·Application for Review filed by father on 15 June 2022;
·Paragraphs 66 – 102 of the father’s affidavit filed 4 July 2022;
·Paragraphs 104 – 115 of the mother’s affidavit filed 7 July 2022;
·Unfiled documents sent for filing (that were rejected):
·Application – Contempt listing the mother as the respondent;
·Application – Contempt listing Mr L as the respondent; and
·Affidavit of the father dated 23 May 2022.
·Affidavit of the father dated 12 May 2022.
The Application – Contempt listing the mother as the Respondent lists four dates on which he alleges the mother has engaged in acts or conduct that give rise to a contempt. They are:-
·28 September 2021 - now - Orders and Disclosures (“Charge One”)
Reading the material contained under this charge the father’s assertions include that the mother “has failed to comply in full with Order 13 (28 September 2021) despite multiple requests to do so.”
Order 13 of 28 September 2021 was:
13. By not later than 5pm on Friday, 8 October 2021, to the extent she has not already done so, the mother shall provide to the father copies of all school reports, documents recording [X]’s Home Schooling registration, and (if any) medical or allied health reports or assessments about [X] for the past two years that are in her possession.
·On 14 April 2022 – Hearing/Affidavit (“Charge Two”)
The father’s material under this heading asserts that the mother and her legal representative misled Judge Campbell at a hearing on 14 April 2022.
·18 May 2022 – Amended Response (“Charge Three”)
The father’s material with respect to the date listed asserts that the mother filing an amended response on 18 May 2022 seeking orders for no time between X and the father is:
…in my view direct evidence of
1. A pattern of methodical destruction of meaningful child/father relationship as well as parental alienation….
2.Complete disregard of the rules of disclosure by both the respondent and her lawyer.
3. Severe interference with the administration of justice by the respondent and her lawyer for at least the past 9 months by falsifying information and misleading other parties and judicial officers.
·18 May 2022 – Undertaking (“Charge Four”)
This states in full:
Undertaking filed by the respondent on 18 May 2022.
In her undertaking filed on 18 May 2022, the respondent claimed to be in compliance with all Orders and disclosure rules.
Based on the information in this application, I seek that the respondent and her lawyer, Ms Worland, be found in contempt of court.
The father submitted that both the applications “go to the heart of the judicial process.” The father submitted that the mother has breached Orders 11 and 13 made on 28 September 2021 and that those breaches are continuing. The father asserted that by amending the relief she seeks the mother has also shown contempt for the Court. He asserts that the mother has been contemptuous as she has not disclosed relevant information, filed a false undertaking, has not complied with Orders and has provided completely inadequate disclosure. The father asserts the mother is in breach of an Order 11 as she “is blocking him from receiving material.” The father conceded that there is no evidence the mother has in her possession documents relevant to these proceedings she has not disclosed.
Counsel for the mother submitted that such an application was frivolous, lacks particularity and is effectively a diatribe of the father’s complaints. Counsel submitted that it was difficult to decipher the material contained within the father’s application.
The specific charge against Mr L the father wishes to press requires a close and careful reading of the document. It asserts a continuing breach of Orders made on 9 February 2022. Reading the page and a half of typed material that purports to detail what Mr L did or did not do that he alleges amounts to a contempt of Court, it appears that the father is asserting that Mr L did not comply with Orders 12, 13, 14 and 15 made on 9 February 2022. Those Orders stated that:-
12. That unless the Single Expert is otherwise agreed, the Independent Children’s Lawyer shall provide to the parties within seven (7) days of the publication of these Orders:
a. The names of three (3) proposed Single Experts including their fees and availability for the interviews.
13. Within seven (7) days of receipt of the panel, the Applicant and Respondent shall each:
a. Nominate one (1) of the proposed Single Experts to undertake the report.
14. The Independent Children’s Lawyer is to then nominate on the Single Expert out of the preferences provided by the parties.
15. In the event the parties fail to nominate a Single Expert within seven (7) days of receiving the list of proposed Experts, the ICL shall nominate the Single Expert.
The father submitted to the Court that Mr L has shown a flagrant disregard for the Orders of the Court, has failed to uphold the standards of the Court, has delayed proceedings and made a false undertaking to the Court with respect to the hearing on 25 May 2022. The father’s complaint relates to the method in which the proposed Single Expert were obtained and the Single Expert subsequently chosen by Mr L.
Section 112AP(1) of the Act provides:
(1) Subject to subsection (1A), this section applies to a contempt of a court that:
(a) does not constitute a contravention of an order under this Act; or
(b)constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.
The Full Court of the Family Court of Australia in Oakley & Millar [2019] FamCAFC 12 at [30] cited with approval the application of the principles and procedure to be applied with respect to s 112AP proceedings articulated by Aldridge J in Ganem & Ganem (No 2) [2013] FamCA 257 which was as follows:
Principles and procedure to be applied
[9] I take the principles and procedure to be applied to derive from the sections set out above, the general law and Rule 21.08 of the Family Law Rules.
[10]Contempt pursuant to section 112AP is a criminal proceeding and accordingly each element of each charge must be proven beyond reasonable doubt. (In the Marriage of Tate (2002) 29 Fam LR 195; (2002) FLC 93-107)
[11]Contempt under section 112AP has four elements each of which must be proven beyond a reasonable doubt. The first three involve the acts and intentions of the respondent. The fourth is a finding to be made by the trial judge. These four elements are:
•The respondent knew the terms of the orders. (Mead and Mead (2006) FLC 93-267 at 80, 536)
•The respondent deliberately did an act. The act must be wilful and deliberate as opposed to accidental or inadvertent. (In the Marriage of English (1986) FLC 91-729 at 75, 294)
•The act must be intentional. This is not to say that the respondent must intend that the act was in breach of the order, which would make the respondent’s actions contumacious, but the respondent must have intend to do the act which is alleged to be the contempt. In the Marriage of English, above.
•The act must involve a flagrant challenge to the authority of the court. In Bande and Cade 45 FAM LR 376 at 39 the…Full court said:
The concept of a “flagrant challenge” involves conduct of an exceptional, striking or repeated nature. In Ibbotson and Wincen (1965) 18 Fam LR 164; (1994) FLC 92-496 the Full court held (at Fam LR 175; FLR 81, 162): “the use of the term “flagrant challenge” … is intended to underline the exceptional or striking nature of the contravention in question and thus to differentiate it from what might be described as a general run of breaches which are intended to be dealt with under section 112AD … it is a question of fact and degree whether the stringent terms of the section are satisfied.
The Application-Contempt listing the mother as the respondent seeks that the mother’s legal representative be dealt with for contempt in circumstances where she is not listed as a respondent. The Application – Contempt listing Mr L as the respondent relates to Orders that were procedural in nature. A charge of contempt must be particularised, clear and unambiguous. The father must be able to identify by way of each charge of contempt each of its requisite elements. Both applications filed by the father contain a litany of complaints. There are a number of allegations contained in both applications that are not capable, as a matter of substantive and procedural fairness, of being identified and understood by the respondent within the serious confines of s 112AP of the Act. It is not possible to articulate a charge of contempt on the material contained within either of the applications that involves a flagrant disregard or challenge to the Court. On their face both documents appear to be an abuse of process. Accordingly the father’s Application for Review of the decision of the Judicial Registrar to refuse the documents for filing will be dismissed.
CONCLUSION
The parties are reminded that they have a mandatory obligation pursuant to r 1.04 of the Rules to conduct proceedings in a manner consistent with the overarching purpose of the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.
To achieve that purpose the Court must ensure that its resources are allocated in a manner that is fair to all those seeking the assistance of the Court. Thus Central Practice Directions 5.21 and 5.22 mandate that:-
·a party must not file an Application in a Proceeding seeking interim orders without making a reasonable and genuine attempt to settle the issue to which the application relates; and
·other than in urgent circumstances of high risk, parties may each file a maximum of two Applications in a Proceeding without leave. Thus for both parties leave must be sought as part of any further interlocutory application.
For the above reasons, Orders will be made as set out herein.
I certify that the preceding sixty -eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 15 July 2022
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