Granger and Granger

[2008] FamCA 384

FAMILY COURT OF AUSTRALIA

GRANGER & GRANGER [2008] FamCA 384

FAMILY LAW – PROCEDURAL - subpoena

Family Law Act 1975

APPLICANT: Mrs Granger

RESPONDENT: Mr Granger

FILE NUMBER: ADF 220 of 2005

DATE DELIVERED: 23 April 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 23 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J McGinn

SOLICITOR FOR THE APPLICANT: Norman Waterhouse Lawyers

COUNSEL FOR THE RESPONDENT: Mr M Pickhaver

SOLICITOR FOR THE RESPONDENT: Angela Ferdinandy

Orders

1. That leave is granted to the wife to issue subpoenas to the H Medical Clinic and WorkCover Corporation in accordance with the annexures attached to her affidavit filed on 21 April 2008.

2. That the Application in a Case filed by the wife on 25 March 2008 be dismissed and removed from the active pending cases list.

3. That further consideration be adjourned to 9:30am Tuesday 27 May 2008 before the Docket Registrar.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 220 of 2005

MRS GRANGER

Applicant

And

MR GRANGER

Respondent

EX TEMPORE REASONS

1. I have before me an application by the mother filed on 25 March 2008 for leave to issue two subpoenas, one to WorkCover Corporation seeking the production of all records, documents and medical reports relating to any WorkCover claim made by the father and, secondly, leave to issue a subpoena to H Medical Clinic seeking production of the father's medical notes.

2. There was an initial affidavit filed in support of that application which frankly was totally inadequate and I adjourned the matter to give the opportunity to the mother to file a further affidavit in support of the application.  That has now been done.  There was an expansive affidavit filed by the mother on 21 April 2008 where she better addresses the issues that I need to consider in terms of whether I issue these subpoenas or not.

3. I will not repeat all the submissions that have been put to me.  Perhaps though, in summary, the mother says that the father's health, and particularly his mental health is an issue in this case, insofar as it may impact on his ability to care for the children.  She says that the father told her that he was seeing a psychiatrist that he had been referred to by his general practitioner at the H Clinic.  She says he subsequently told her, and he told her this before they separated, that his psychiatrist had diagnosed him as suffering from clinical depression.  She says that if the records of the H Clinic are subpoenaed, they would reveal the psychiatrist to whom the father was referred and those records would also deal with other issues relating to his mental health and his health generally.

4. Pausing there, the father says that he was not referred to a psychiatrist, he has not been diagnosed as suffering from clinical depression and his WorkCover claim arose out of a physical ailment, namely dermatitis, and thus it is not relevant to issue either of the subpoenas.  It can only be a fishing exercise.

5. The mother is also concerned though about what she says is the father's abuse of marijuana and alcohol, and she says that the records of the H Clinic are relevant to that issue.

6. The father's response to that is that there was a time when he and the mother used marijuana and drank alcohol.  He says they both subsequently changed their habits in that regard, and he is now a social drinker and he is not consuming marijuana at the moment.  Therefore, he says, again this is a fishing exercise by the mother and should not be permitted.

7. Counsel for the father has taken me to various documents which are before me which tend to support the father's case in relation to these matters.  However, in one respect, namely the suggestion that this is the first time that these matters have been raised by the mother, that appears to be incorrect, in that Mr McGinn has taken me to earlier affidavit material of the parties where these issues are raised.

8. The mother makes the allegations and the father denies them.  It is a factual dispute, but I cannot, in a hearing like this, resolve that factual dispute.  I am not in a position to make any finding as whether the father did or did not tell the mother what she says he did and I am not in a position to make any finding as to whether he does abuse currently, or in the immediate past, alcohol or consume marijuana.

9. The father, through his counsel, says that there is no independent evidence to justify these subpoenas being issued.  It is all based on what the mother says, which the father denies.  That is certainly the case as far as it goes, although I note of course that the mother has consistently made allegations about the father's conduct, behaviour and attitude, and those issues have been picked up in Mr P’s report of 12 December 2007.  Indeed he makes a recommendation, with one basis being his assessment of the father and his attitude, behaviour and conduct.

10. In deciding an issue like this, the question is the relevance of the subject matter of the subpoenas.  I am confined, in finding relevance, to the affidavit material that is before me and particularly the affidavit that the mother has now filed.  In my view, there is sufficient relevance established in that affidavit, and also in the earlier affidavits Mr McGinn has referred me to, and I now have the report of Mr P, which does frankly concern me in terms of why the father should be acting in the way that he is alleged to have conducted himself.

11. For those reasons, I consider that the subpoenas should be issued.

I certify that the preceding 11 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 23 April 2008.

Associate