GORMAN & KIRKLAND

[2015] FCCA 2784

FEDERAL CIRCUIT COURT OF AUSTRALIA

GORMAN & KIRKLAND [2015] FCCA 2784

Catchwords:
FAMILY LAW – Parenting – property – application to vary trial directions – application to inspect and copy documents produced on subpoena – application to issue a subpoena to a Family Consultant.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:
Hall & Hall (1979) 5 Fam LR 609; FLC 90-713
Kennon & Kennon (1997) 22 Fam LR 1; FLC 92-757

Applicant: MR GORMAN

Respondent: MR KIRKLAND

File Number: BRC 7341 of 2013

Judgment of: Judge Scarlett

Hearing date: 16 September 2015

Date of Last Submission: 16 September 2015

Delivered at: Sydney

Delivered on: 16 September 2015

REPRESENTATION

Applicant: In person

Respondent: In person

ORDERS

1. The Application to vary Order 5(i) made on 28 November 2014 is dismissed.

2. The Application for an Order directed to the Registrar of the Brisbane Registry of the Court to issue a subpoena to produce documents to

   
   

   Ms E is dismissed.

3. The balance of the Amended Application in a Case filed on 4 September 2015 is adjourned to Monday 26 October 2015 for further mention.

4. THE COURT NOTES THAT Family Consultant Ms E will be required for cross-examination during the hearing of the substantive application for parenting orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

BRC 7341 of 2013

MR GORMAN

Applicant

And

MR KIRKLAND

Respondent

REASONS FOR JUDGMENT

Application in a Case

1. This is an Amended Application in a Case filed by the Respondent in the substantive Application for parenting and property Orders. The substantive Application is listed for final hearing in Brisbane to commence on Monday 26 October next. In his Amended Application in a Case, the Applicant (as he is in this Application) is seeking:

   a)An order that he should be permitted to inspect and copy documents produced by Ms L pursuant to a subpoena;

   b)An order that he should be permitted to inspect and copy documents produced by Mr R pursuant to a subpoena;

   c)An order varying the trial directions made by Her Honour Judge Spelleken on 28 November that at the hearing each party should be only entitled to rely on two affidavits, one in respect of property matters and one in respect of parenting matters; and

   d)

   A further order directing the Registrar to issue a subpoena to

   
   

   Ms E, a Family Consultant who has prepared the Family Report, to produce documents.

2. The Application is opposed by Ms Kirkland, the Applicant in the substantive matter and the Respondent to the Application in a Case. She has objected to the subpoenas to Ms L and Mr R. As far as the application to vary Her Honour’s trial directions is concerned, the Respondent said that she has already complied with the directions to file her material.

3. Ms Kirkland agreed that she did not have a view either way about the proposed subpoena to the Family Consultant but said that she understood that the Family Consultant could be subpoenaed to be cross-examined.

Evidence and Submissions

1. The Applicant relied on his affidavits of 24 and 29 July 2015.

2. In respect of the trial direction made by Judge Spelleken about the parties only being allowed to rely on two trial affidavits, the Applicant said that he had an expert witness, a psychiatrist who had prepared a report in relation to the case. The psychiatrist had read both of

   
   

   Mr Gorman’s earlier affidavits, the first of which was filed on 18 November 2013, and he was also given Ms Kirkland’s first two affidavits to read as well.

3. Mr Gorman said that according to the practice direction the expert had to show what material he relied upon to come to his conclusion, so he would either have to get leave to rely on those two affidavits or otherwise he would have to tender them as exhibits. He went on to say that he would have to completely redraft all his earlier affidavits to create one or two affidavits for the trial and he did not have the time to do so.

4. In any event, there would be nothing to be gained by doing so because the same quantity of material would still be there.

5. If he was not permitted to rely on those affidavits at the trial he would seek to tender them as exhibits. He also said that if the Respondent objected to the tender of the affidavits and that objection was upheld, he would be denied his right to procedural fairness in that he should be heard and have a full opportunity to put his case. He will be going away for a week and does not have a secretary to do any of the work.

6. In respect of the subpoenas to Ms L, a psychotherapist and social worker, and Mr R, a psychologist, Mr Gorman said that the purpose of his seeking to examine and photocopy that material was:

   …if I can out this whole litigation into context, it involves a – what I might describe as a Kennon v Kennon[1]situation by reason of the applicant’s conduct towards me throughout the 10 years of our cohabitation. And more importantly though, that conduct has caused me to lose very, very significant sums of earnings but that is substantially economic loss because her conduct to me caused me to have depression and that’s the reason why I’ve got a psychiatric report to prove causation.[2]

   [1] Kennon & Kennon (1997) 22 Fam LR 1; FLC 92-757

   [2] Transcript 16.9.2015 page 8 at 4-10

7. Mr Gorman went on to say that he had a severe exacerbation of his depression when Ms Kirkland was seeing Ms L and she was telling

   
   

   Ms L about the parties’ ongoing problems in the marriage. Ms L was also seeing the parties’ daughter. He further told the Court that

   
   

   Ms Kirkland deliberately and regularly “bad mouthed” him to their daughter.

8. Mr Gorman also said that Ms Kirkland told him that the reason she was going to leave him was because Ms L told her that she should or advised her to do so. He suspected that there would be material in

   
   

   Ms L’s records that would go towards those issues, including turning their daughter against him.

9. Ms Kirkland said that she did not propose to rely on affidavits from

   
   

   Mr R and Ms L in the proceedings.

10. As to the subpoena that he wished to issue against the Family Consultant, Mr Gorman said that he could not cross-examine the Family Consultant on what material she had relied on for the purpose of preparing the Family Report. If he could see the material before then he may not need to cross-examine the Family Consultant at all.

11. Ms Kirkland said that she did not wish to cross-examine the Family Consultant at the hearing.

12. Mr Gorman said that there were things in the Family Report with which he did not agree, and the most appropriate course is for him to be able to see her documents and then determine whether he needed to cross-examine the Family Consultant at all.

13. Ms Kirkland expressed a concern that if Mr Gorman obtained copies of private discussions between the Family Consultant the children they might see these notes, which would not be in their best interests.

Conclusions

1. I am not persuaded that I should vary the trial directions made by Judge Spelleken when setting this matter down for trial. Her Honour directed that the parties should rely on two trial affidavits, one each for property and parenting. In the Sydney Registry parties are usually required to rely on one trial affidavit.

2. The reason why the Court makes directions about the number of affidavits to be used is so that the Court does not have a plethora of affidavits before it. Parties should prepare their material carefully so that the Court has relevant and focused affidavits that are not prolix or full of irrelevant or inadmissible material

3. I do not propose to overturn the decision by the Registry not to issue a subpoena to the Family Consultant requiring her to produce the documents. If the Applicant does not agree with the contents of the Family Report or parts of it, he should cross-examine the Family Consultant on the Report.

4. From time to time it will be necessary to cross-examine a Family Consultant on the contents of a Family Report or the recommendations made in the Report. The Full Court of the Family Court considered that eventuality in the well-known authority of Hall & Hall[3], where their Honours said (inter alia):

   (f)     Whether the report contains a positive recommendation or whether it be neutral; whether the report is accepted by the judge or whether it is not; the report will still serve the court well and assist the court’s investigation.

   (g)     It follows that in some cases it may be desirable to question counsellors[4]about the bases of their recommendations.

   (h)     Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors.

   (i)     Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied.[5]

   [3] (1979) 5 Fam LR 609; FLC 90-713

   [4] Counsellors are now called Family Consultants

   [5] (1979) 5 Fam LR 609 at 615-616; FLC 90-713 at 78,819-78,820 per Evatt CJ, Asche SJ and Hogan J

5. It appears clear that if Mr Gorman wishes to challenge the Family Report, the Family Consultant should be available for cross-examination. It is the experience of this Court that Family Consultants need to be given as much warning as possible of the need to attend for cross-examination, and it is noteworthy that the trial is scheduled to commence on 26 October, less than six weeks away.

6. The Court will note that the Family Consultant is required for cross-examination.

7. As to the material produced on subpoena from Ms L and Mr R, the subpoenaed material has not been sent from Brisbane, so there is no opportunity for me to inspect the material and form a view as to its relevance or otherwise. I propose to adjourn this part of the Application to the morning of the first day of the final hearing.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  13 October 2015