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

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

The Applicant’s objections to the three subpoenae issued by the Court at the request of the Respondent are upheld.
The three subpoenae filed by the Respondent on 25 September 2018 are struck out.
All material produced pursuant to such subpoenae be returned to the providers.
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

These are the rulings in relation to two issues raised as preliminary matters to the commencement…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading GISSING & FULLER

Details

AGLC: GISSING & FULLER [2018] FamCA 809
Case: [2018] FamCA 809
Decision Date: 8 October 2018

CaseChat Overview and Summary

In the matter of *Gissing & Fuller*, heard before Cronin J, the dispute concerned parenting orders and the conduct of proceedings. The father, appearing as a self-represented litigant, had sought the court to issue subpoenas for the production of documents. He also sought to discharge the appointment of the Independent Children’s Lawyer (ICL) on the grounds of alleged bias.

The court was required to determine two primary legal issues. Firstly, whether the subpoenas issued at the father's request were relevant to the proceedings and therefore not an abuse of process. Secondly, whether the ICL's conduct or advocacy demonstrated bias such that their appointment should be discharged.

Regarding the subpoenas, the court found that the father had failed to demonstrate the relevance of the documents sought. It was held that the trial evidence itself should form the basis for judging the relevance of such requests, and in the absence of demonstrated relevance, the subpoenas were considered an abuse of process and were struck out. On the issue of the ICL, while acknowledging that the language used in the ICL's outline of case was "infelicitous," the court found it to be robust. The court reasoned that the advocacy role of an ICL does not preclude them from considering the positions of each parent and adopting the one they believe best serves the children's needs, and therefore, there was no basis to discharge the ICL's appointment.

Consequently, the court upheld the objections to the three subpoenas issued at the father's request and ordered them to be struck out, with any material produced to be returned to the providers. The father's application to discharge the ICL and the mother's response thereto were both dismissed.

Orders

Orders of the court

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

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

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

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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