Gin & Hing (No 2)
[2022] FedCFamC1F 750
•28 September 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Gin & Hing (No 2) [2022] FedCFamC1F 750
File number(s): MLC 4528 of 2010 Judgment of: WILSON J Date of judgment: 28 September 2022 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – subpoena objections – subpoena refused. Cases cited: Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Warren & Warren [2020] FamCA 796
Division: Division 1 First Instance Number of paragraphs: 16 Date of hearing: 28 September 2022 Place: Melbourne Solicitor for the Applicant: GR Lawyers Counsel for the Respondent: Mr F. Dixon SC Solicitor for the Respondent: Clancy And Triado Counsel for the Independent Children’s Lawyer: Mr D. Whitchurch Solicitor for the Independent Children’s Lawyer: Macgregor Solicitors ORDERS
MLC 4528 of 2010 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GIN
Applicant
AND: MS HING
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
WILSON J
DATE OF ORDER:
28 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.Leave to the father to issue the subpoena directed to Ms C is refused.
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 the pseudonym Gin & Hing has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
On the 22nd day of the trial of this proceeding the father, an unrepresented litigant in person, sought leave to issue a subpoena addressed to Ms C in which seven categories of documents were the subject of the subpoena.
Ms C is now retired living in regional Victoria. At a very early stage of the bitter dispute between the parents in this litigation, Ms C performed certain counselling services. After a period, the father terminated Ms C’s services.
The father is a professional. He has previously been represented in this litigation by Senior Counsel. For most of the trial of this proceeding, he has been self-represented. After initially submitting that he was not self-represented, Mr Gin conceded that he was in truth a self-represented party. That had the consequence of requiring the father to seek leave before issuing the subpoena addressed to Ms C.
The Federal Circuit and Family Court of Australia (Family Law) Rules do not set out the criteria to be met in order for an unrepresented litigant to obtain leave as the father needed. However, as was surveyed by me in Warren & Warren,[1] the father needed to demonstrate that the documents he sought met the apparent relevance test. In respect of each category of document sought by the father, Mr Dixon SC argued that the document failed the apparent relevance test. Mr Whitchurch of counsel for the ICL supported Mr Dixon in submitting that the documents sought did not meet the apparent relevance test.
[1] [2020] FamCA 796.
Before addressing each category of document sought, it is necessary to record the manner in which the father framed his conception of apparent relevance. Chronologically, the father is at the end of his cross-examination of Ms N. He has put to Ms N that Ms N holds an adverse view of him and is negatively biased towards him. He wishes to obtain documentation from Ms C that he hopes shows that Ms C was positive towards the father from 2014. The father told me he wishes to challenge Ms N on her negative attitude towards the father by putting to her that Ms C was positive to him.
When asked what was the apparent relevance of the documentation he seeks, the father answered that the documentation is apparently relevant to show that Ms C is positive towards the father whereas Ms N is negative towards him. Mr Dixon SC, with whom Mr Whitchurch agreed, argued that the documentation sought by subpoena must be apparently relevant to the best interests of the child in issue in this case.
Mr Dixon submitted that the father’s construct of the apparent relevant test was wrong, as it focused solely on an endeavour by the father to promote his status as a parent capable of enjoying equal shared parental responsibility for the child. Mr Dixon argued that the apparent relevance test in this case should be on the best interests of the child rather than on the father.
In debate with the father, he said he wishes to put to Ms N the contents of documents he seeks so as to invite her to change her evidence of the negative views she holds of the father. In addition to the contest that emerged between the father and Mr Dixon SC about the correct test of apparent relevance, Mr Dixon further submitted that the items of the subpoena were “fishing”, within the meaning of Sir Frederick Jordan’s holdings in Commissioner for Railways v Small.[2]
[2] (1938) 38 SR (NSW) 564.
Mr Dixon submitted that in order to answer the subpoena Ms C, a retired person, will be forced to attend a document storage facility at which her former professional records are kept, where she will be forced to sift through the records in order to see which, if any, respond to the subpoena. Mr Dixon submitted that a person upon whom a subpoena is served should not be required to do that. There was considerable force in that submission.
Mr Dixon also submitted that, at a more global overview, the father terminated the services of Ms C some years ago. He also submitted that documents going back in time to 2014 are highly unlikely to be probative of any aspect of the child’s best interests in a prospective sense, that is to say, going forward. Again, there is considerable force in that submission.
Finally, Mr Dixon, with whom Mr Whitchurch agreed, submitted that the trial of this proceeding has been on foot for long enough and that at the 22nd day of the trial it was nonsensical for the father to be seeking leave to issue a subpoena directed to Ms C for the purposes of obtaining documents to be put to a witness under cross-examination so as to answer questions that bolster the father’s credit. Mr Dixon argued that the court can specifically provide for the curtailing of activities that unduly prolong cases, and that it was wholly unsatisfactory at this late stage of the trial for the father to engage in that process. I agree.
In my view, the steps the father now wishes to take by serving a subpoena on Ms C will prolong the trial of this proceeding beyond acceptable bounds. In my view, the father’s purpose in seeking documents, as recorded in the subpoena which he seeks leave to issue, is to bolster his own credit by his seeking to persuade Ms N out of a negative view she holds of the father.
The father told me he has one further day worth of cross-examination with Ms N. If he were to obtain the leave he seeks, the trial will be delayed by serving the subpoena on Ms C, then having Ms C comply with the subpoena, the documents being produced, the trial resuming and the father wading through whatever form of questioning he is able to formulate for Ms N. He told me he wishes to put to Ms N the events of a holiday several years ago. He told me he wants to put to Ms N that Ms C’s notes are likely to reveal a highly agreeable and cooperative attitude displayed by the father in a collection of meetings between the father and Ms C and that such cooperation tells of positivity rather than negativity.
The father said he will ultimately submit in this case that the child and the mother are enmeshed in their hostility towards the father yet the child behaves well when in the father’s care.
I am unable to see why the father needs Ms C’s notes to put that proposition to Ms N.
For those reasons, leave to the father to issue the subpoena to Ms C is refused.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 28 September 2022