GISSING & FULLER

[2018] FamCA 809

FAMILY COURT OF AUSTRALIA

GISSING & FULLER [2018] FamCA 809

FAMILY LAW – CHILDREN – Parenting – Subpoena – where the self-represented father had the court issue subpoenae to produce documents where he could not explain apparent relevance – where his trial evidence was the basis to judge relevance – where there was no relevance shown and as such, the subpoenae were an abuse of process and struck out.

FAMILY LAW – INDEPENDENT CHILDREN’S LAWYER – where the father sought discharge of the appointment on the ground of bias – where the language in an outline of case of the Independent Children’s Lawyer was infelicitous, it was still robust and the advocacy role did not mean that the lawyer had not contemplated the positions of each parents and adopted the one that he thought best met the needs of the children – where there was no basis to discharge the law.

Family Law Act 1975 (Cth)

Alister v The Queen (1984) 154 CLR 404, 414 (Gibbs CJ),
British American Tobacco Australia Services Limited v John Fairfax Publications Pty Ltd [2006] NSWSC 1328
Knibbs & Knibbs [2009] FamCA 840
R v Saleam[1989] 16 NSWLR 14, 18
Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306
White v Tulloch (1995) FLC 92-640

APPLICANT: Ms Gissing

RESPONDENT: Mr Fuller

INDEPENDENT CHILDREN’S LAWYER: Clark Family Lawyers

FILE NUMBER: SYC 4877 OF 2010

DATE DELIVERED: 8 October 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hale

COUNSEL FOR THE RESPONDENT: Mr Connell

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Brennan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Clark Family Lawyers

Orders

1. The Applicant’s objections to the three subpoenae issued by the Court at the request of the Respondent are upheld.

2. The three subpoenae filed by the Respondent on 25 September 2018 are struck out.

3. All material produced pursuant to such subpoenae be returned to the providers.

4. The application in a case filed by the father seeking the discharge of the Independent Children’s Lawyer on 25 September 2018 and the mother’s response thereto are both dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gissing & Fuller has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: SYC 4877  of 2010

Ms Gissing

Applicant

And

Mr Fuller

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. These are the rulings in relation to two issues raised as preliminary matters to the commencement of the final parenting hearings between Ms Gissing (the mother) and Mr Fuller (the father).

2. The proceedings concern their two children X (aged 15) and Y (aged 14). That dispute has been going on over 10 years with various periods of calm in between. In the recent two years or so, there has been an acceleration of the dispute. To put it in the mother’s words, they have been to court 19 times. That of course includes the Magistrates’ Court and the County Court of Victoria and the Federal Circuit Court. In respect of the first two courts, the dispute was about intervention orders. The last court ultimately transferred the parenting dispute here.

3. Albeit the father has sought orders to change the residence of the children which have stood since 2010, objectively, it can be seen to be about trying to make the contact orders workable as the father lives in Region B of New South Wales and the mother lives in suburban Melbourne. Undoubtedly, through the years, the children have become much older; indeed, teenagers and each has different interests and different needs. In addition, the objective evidence shows that regardless of what the children say to their parents, they each love both parents unconditionally and do not want to be involved in their parents’ dispute. Suffice to say, the relationship between the parents is poor.

4. On 25 September 2018, the Court issued three subpoenae at the request of the father; in my view, it should not have done so.

5. The subpoenae were addressed respectively to:

   a)C Health;

   b)Ms D; and

   c)Dr E.

6. To each subpoena, the mother filed an objection on the grounds of relevance. That is, what relevance has the subpoenaed record to the litigation. In part, a dilemma arises for a court determining these preliminary points in that it can only look at the presented evidence and hear submissions arising from that evidence but also, can it objectively determine whether or not the issues that the respective parties want to litigate has any prospect of success. In my assessment of this case, there is little or no basis for a change of residence here.

7. I do not doubt the father’s dissatisfaction with the existing arrangements but overall, the problems relate to the workability of the contact orders having regard to the tyranny of distance, the ages of the children, their settled nature in school and their extra-curricular activities. In addition, there are the nature of their relationships with their peers, their sibling from their mother’s marriage but also their stepfather. It is difficult to see how the present circumstances of the children would justify destabilisation of all of that. It is important to note that the father wants to change all of that but his evidence as to how that would affect the children and enable them to have an ongoing relationship with all of these other people, remained unclear. Thus, when looking at the issue of relevance, I have taken into account all of the objective evidence concerning the residence issue. In respect of the alternate position of rectifying the contact orders, the issues are more of a logistic nature than an alteration of the various relationships involved. As I have said, it is clear that the contact orders are not working and there are a number of reasons why that is so. Those need to be ventilated but in that regard, the relevance of what the father wants to examine has been exposed.

8. The starting point is to observe that with those concepts in mind, the onus reverts to the father to show why there is a relevance.

9. When these subpoenae were issued, neither party had the benefit of legal representation; that changed in the final hearing.

10. In respect of C Health, the father wanted “all consultation records and reports on the mother’s child Z” (now aged 10). Z is a child to the mother’s current marriage. He has a form of Autism. There may have been difficulties with Z but it was not apparent from reading the father’s evidence as to how Z’s health affected the children who are the subject of the proceedings. When pressed, the father said that he would know once he had read the material of the hospital. That is an enormous invasion of privacy but still did not answer the question of what it was that was said to be relevant to the current parenting case. Accordingly, absent some relevance, the subpoena is an abuse of process.

11. In respect of Ms D, the father wanted all of her “consultation records”. It seems that Ms D is a psychologist. Although the father’s evidence seems to argue that he was a better parent than the mother and that she was thwarting his relationship with the two children, nothing in the evidence indicated that she was otherwise incapable of physically and emotionally caring for these children. Again, the father thought that if he had access to the material, it would answer his question. The father did not know what he was looking for or how it could be linked to an issue in dispute. Subpoenae used in that way is inappropriate. In this case, nothing had been asked of the mother about her psychological assistance and it did not seem to have been a contentious issue that she was receiving it. The relevance therefore of the opinion of a treating psychologist was missing. The father appeared unable to say how he saw it as relevant to the parenting issue.

12. The third subpoena was addressed to Y’s medical practitioner, Dr E. The same problem arose. Why the father could not approach the doctor and obtain the details, and what it was he was searching for, he did not say. In his evidence, he said that he was “concerned” that “pathogenic parenting” by the mother was responsible “for a variety of developing mental health ailments and unhealthy/unproductive coping strategies within the children …”

13. The last few words were rhetorical. There was no evidence to corroborate such a vague assertion.  In his affidavit, the father also said that Y suffered from exhaustion, anxiety, iron deficiency and haemochromatosis. He said that both children suffered muscular-skeletal inflammation and pain yet each is a gifted athlete. There is something very odd about the statement that Y had haemochromatosis which is an excess of iron and having an iron deficiency. I do not know where the father obtained these concepts from but none of these complaints fit with children as active as these. Leaving aside what inquiries he had made of the medical professionals, what was the relevance of all of this when Y is an elite athlete who competes at a high level. The relevance was again lacking and he could not point to any.

14. In British American Tobacco Australia Services Limited v John Fairfax Publications Pty Ltd [2006] NSWSC 1328, Brereton J heard an application by the plaintiff (BATAS) to have notices to produce documents and subpoenas set aside on basis that they were an abuse of process and which had called for the production of documents which had no apparent relevance to the issues in dispute in the proceedings. The court made orders setting aside parts of the notice to produce.

15. Brereton J summarised the law [at 5] and I respectfully adopt it:

    The absence of apparent relevance of the documents, production of which is called for by a subpoena or notice to produce, is a sufficient ground to set it, or part of it, aside [Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306; Hatton v Attorney General of the Commonwealth of Australia (2000) 158 FLR 31; 26 Fam LR 520; Portal Software Pty Ltd v Bodsworth (2005) NSWSC 1115, [20]-[22]]. In this context, the concept of "apparent relevance" was explained by Beaumont J in Arnotts in terms that the material in question had apparent relevance if it "could possibly throw light on the issues in the main case". Similarly, in Alister v R (1984) 154 CLR 404, Gibbs CJ at 414 accepted the proposition that "a subpoena had a legitimate forensic purpose if it appeared to be 'on the cards' that the documents sought would materially assist the defence in a criminal proceeding". Accordingly, documents called for by a subpoena will not lack apparent relevance sufficient to justify the issue of the subpoena if they could possibly throw light on the issues in the substantive proceedings or if it appears to be on the cards that they will do so. In some respects, what is of apparent relevance in the context of a subpoena or notice to produce is wider than in the context of discovery, including because, in the case of a subpoena or notice to produce, unlike discovery, documents arguably capable of providing a legitimate basis for cross-examination on credit have sufficient relevance [Brand v Digi-Tech (Australia) Ltd (2001) NSWSC 425 (Hunter J), [36]].

16. In White v Tulloch (1995) FLC 92-640, the Full Court referred to the test in terms of documents having "a sufficient apparent connection to justify their production or inspection". But perhaps the most instructive description is that of Beaumont J in Arnotts, in which his Honour said that the test of adjectival relevance was satisfied if the material had apparent relevance and was established if the documentation called for "could possibly throw light on the issues in the main case".  In a slightly different but related context, the test has been put in terms that a subpoena has a legitimate forensic purpose if it appears to be "on the cards" that the documents sought will materially assist the defence in a criminal proceeding [Alister v The Queen (1984) 154 CLR 404, 414 (Gibbs CJ), R v Saleam [1989] 16 NSWLR 14, 18].

17. Could these documents possibly throw some light on the issues in the substantive proceedings? The father was unable to point to anything that would affect either a change of residence or a restructuring of the contact orders. The mother’s psychologist was later explained as being involved to discuss “strategies” to enable her to deal with the father. The allegations against the mother do not tell me whether or not those strategies have been working. The health of the mother’s child Z is mentioned by the father to be something to do with her parenting but the rhetorical language he used was prefaced with a statement of his concern. Unfortunately, his concern seemed to be a suspicion rather than something of substance. That must be so when the children and Z are otherwise happy and active children.

18. I have already observed that the father was hoping to find something from this material and that is “fishing”. If there was a basis to assert that Z is such a handful that the children’s emotional risk is at stake, there might be some argument but that is not what the father pursued. This had all of the hallmarks of an invasion of privacy for an ulterior purpose.

19. In respect of Y, nothing I could find in the father’s evidence would justify the issue of a subpoena. No indication was given about why he had not approached the relevant doctor. No suggestion was given as to why he needed the information given Y’s rather extraordinary talents.

20. I have to balance the potential utility of the material sought against the burden which compliance with the subpoena will cast on the recipient or rather, against the invasion of the mother’s privacy. There being no apparent utility in the material or none to which the father could point, his subpoenae must be seen as an abuse of process and the objections should be upheld. The materials received should be returned to the persons served.

21. The second question concerned the removal of the Independent Children’s Lawyer. All of this stemmed from the father’s complaint that the outline of argument by the Independent Children’s Lawyer was biased against him and that he had not acted fairly as between the parents. I pointed out to the father the relevant sections (68L and 68LA) of the Family Law Act and invited him to show me what supported his contention. There is no doubt language used by the Independent Children’s Lawyer which was infelicitous. He was critical of the father in a number of ways but those are all matters open to debate and as I observed, the court makes the decision on the evidence in the end and not the arguments. Counsel for the Independent Children’s Lawyer agreed with my synopsis above and distanced herself from some of the remarks which I agree could only be described as vitriol. They were unnecessary but probably better dealt with by the appropriate body that accredits appointments.

22. I respectfully adopt the words of Murphy J in Knibbs & Knibbs [2009] FamCA 840 where his Honour looked at similar issues. His Honour said:

    [33]     It was said by the Full Court as long ago as 1980 that:-

    “It is the duty of counsel representing the child to place before the court the wishes of the child (see Boseley v Lyons (1978) 4 FamLN 17; [1978] FLC 90-423) but in my opinion, unlike counsel appearing for a party who is sui juris and who must put his client’s instructions and argue his client’s case, counsel appointed to represent a child under the provisions of s.65 is as much charged with the duty of making submissions and conducting his case as to reveal those matters which are in the best interests of the child as is the trial judge to seek them out among the evidence and weigh them up. To this extent therefore, I think that is was proper for counsel for the child, notwithstanding his expressed wish to the contrary, to submit that it is not in his best interests that his wishes be acceded to by the court”.

    (In the Marriage of Wotherspoon & Cooper(1980) 7 FamLR 71; [1981] FLC 91-029 at FLC 76, 282)

    [34]Some ten years after the decision of the Full Court in Wotherspoon & Cooper, another Full Court in In the Marriage of Bennett (1990) 14 FamLR 397; [1991] FLC 92-191 made a similar point, emphasising that an ICL (then a “separate representative”) is not bound to make submissions on the instructions of the child. The court said (at FLC 78, 259):-

    “...it should not be forgotten that an advocate at trial normally has a source of instructions. A separate representative has none other than the children (if they are old enough) as to their wishes but may, as in this case, instruct counsel on his or her behalf. We therefore consider that a separate representative must of necessity, form the view as to the child’s welfare based upon proper material and, if appearing, may make submissions in accordance with that view or instruct counsel to do so. We think that the role of the separate representative is broadly analogous to that of counsel assisting the Royal Commission in the sense that his or her duties to act impartially but, if though appropriate, to make submissions suggesting the adoption by the court of a particular course of action, if he or she considers that the adoption of such a course is in the best interests of the child. Unless the separate representative does this it seems to us that there is little purpose in having a separate representative...”

    [35]In In the Marriage of Harris [1977] FLC 90-276 at 76, 476, Fogarty J said this:-

    “It appears to me that [the Independent Children's Lawyer] occupies the position of an advocate appearing for a particular party in the litigation although it is the role of advocacy having about it certain unusual features including: (i) that he is not appointed by the party whom he represents; (ii) that he may not be removed by that person; and (iii) that he does not necessarily advance what the client wants but what in his view is in the best interest of that “client” and to that extent exercises an independent judgment quite out of character with the position ordinarily occupied by an advocate”.

    [36]In Pagliarella [1993] FamCA 64; (1993) 16 FamLR 688, Hannon J was asked to discharge the Independent Children's Lawyer because she “...reached a conclusion at a very early stage and without being in possession of all the evidence and that she lost her “objectivity” and therefore she could not represent N’s interests”.

    [37]     In rejecting that conclusion, His Honour held (at 695):-

    “It is true that [the Independent Children's Lawyer] states in her affidavit that she concluded that the husband had continued to pressure [the child] and that her wishes were as a result of that pressure and the manipulation of the husband and it is that conclusion with which counsel for [the child] and for the husband join issue with her.

    In my opinion [the Independent Children's Lawyer] was entitled to reach that conclusion. The substantive proceedings being for a discharge of an earlier order, it was appropriate for [the Independent Children's Lawyer] to have regard to the reasons of the court for the making of that order. In fact she would not have been able to properly carry out her function of investigating the file without reading those reasons. Having done so, she was able to identify the issue or issues which would be of significance in the present substantive proceedings. The next step was to consider whether the findings of Treyvaud J as to the part played by the husband in the formulation of N’s wishes were still applicable. In doing so she properly had regard to the material at her disposal which included the interviews she had with N and with the husband and the wife...”

    [38]Each of the parties in these proceedings relied upon the decision of Holden CJ in Lloyd & Lloyd & the Child Representative (2000) FLC 93-045. In that decision, His Honour referred to “a number of very good reasons” why a court “should be slow to discharge a child representative on the basis of largely unsubstantiated complaints of one of the parties”.

    [39]     The reasons why that is so, as identified by His Honour include:-

    A court should treat allegations of lack of impartiality with caution. To do otherwise would leave every separate representative in the perilous position of facing an application that he or she be discharged because of unfounded allegations or perceptions made by one or other of the parties. There is a need on the part of a child representative to retain his or her impartiality, that is, to be fair to all concerned. However that does not mean he or she must take or not take steps in the proceedings simply because one or other of the parties does or does not want her or him to take that step.

    It would be an intolerable situation if a party could successfully apply to have a child representative removed simply because that party perceived that the representative was not “on side” or that the tide was not running in his or her favour. In my opinion, it is only in cases where actual, rather than perceived or alleged, impartiality has been demonstrated that consideration ought be given to removing a child representative”.

    [40]With the greatest respect to His Honour I do not myself necessarily agree with the last of the statements there made that it is only in cases of actual, as opposed to perceived, impartiality that “consideration” ought be given to removing a child representative. However, the matters otherwise referred to by His Honour are in my view, with great respect, all extremely important and are applicable to the facts of this case.

    [41]It is important to understand that, although an ICL is in a unique position vis-à-vis their “client” by reason of that “client” being a child, and a child who is the subject of competing contentions by his or her parents, the ICL nevertheless has each and all of the same professional obligations owed to the court that any legal practitioner has.

    [42]Further, those obligations might be seen to be particularly clear given that their professional judgment should not, unlike a legal practitioner acting for a party, be potentially influenced by, or potentially clouded by, any competing requirement to act only in accordance with a client’s instructions.

    [43]Once it is understood that the ICL’s primary responsibilities and duties as a legal practitioner (albeit a legal practitioner charged with onerous, particular responsibilities) remain essentially the same as all legal practitioners appearing before this court, it can be seen to follow that an ICL is perfectly at liberty to, and probably obliged to, argue firmly and fearlessly for what they contend are findings or results consistent with the best interest of the particular children they represent in their particular circumstances - provided always, of course, that each and every such submission is founded upon evidence properly and adequately put before the court.

    [44]Within that rubric, the fact that an ICL has a “view” about a particular matter or issue, does not necessarily bring with it a finding of partiality. Indeed, it is frequently the duty of an ICL to come to a view contrary to that contended for on behalf of a party if, in their proper, considered, professional judgment, the evidence points to such a conclusion.

    [45]In those circumstances, submissions of the ICL, and things said by the ICL, will, perhaps almost inevitably, have the appearance of partiality because, frequently enough, the views thus expressed are likely to accord with the position of one of the parents and not the other (although, it needs to be emphasised, that this is, of course, not necessarily so).

1. I agree with counsel for the Independent Children’s Lawyer that perhaps things should have been worded differently but having considered the evidence of the parties as well as that of the family consultant, the views otherwise expressed were open as an argument and otherwise properly put. I can well understand why the father does not wish to hear them as they are unpalatable but they are within the responsibilities of such a lawyer. The father pointed to a discussion he had had with his children in which they decried the activities of the Independent Children’s Lawyer. If that is so, the father would no doubt have told them that he would have their views about the substantive proceedings conveyed in some different way. The difficulty is that the Independent Children’s Lawyer is not bound by any instructions and ultimately responsible to the Court to make submissions which he or she considers to be in the best interests of the children. That seems to be what has happened here and accordingly the father’s application must fail.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 8 October 2018

Acting Associate:

Date:  8 October 2018