Halstead and Lees & Anor - [2019] FamCA 158

FAMILY COURT OF AUSTRALIA

HALSTEAD & LEES AND ANOR

[2019] FamCA 158

FAMILY LAW – CHILDREN – Interim – With whom a child spends time – Where orders for the child to spend time with the paternal grandmother are suspended – Where the paternal grandmother seeks orders to spend time with the child on a gradually increasing basis – Where the mental health and well-being of the mother is in issue – Where the children will remain in the mother’s care pending trial – Best interests of the children.

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Where the father seeks to adjourn the trial date to a time after the conclusion of the evidence in his criminal proceedings – Where the proposed adjournment is for three months – Where the father lives with a disability that makes it difficult to give evidence for protracted periods – Factors the court must consider.

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena – Objection to subpoena – Where the mother objects to inspection and copy of documents produced pursuant to subpoena to the child’s treating medical practitioner – Where the mother says that the subpoena is too broad and represents “fishing” – Where the mother is concerned that documents in the subpoena material may reveal to the father her address or the location of the school that the children attend – Where there is an Intervention Order naming the mother and children as protected persons.

FAMILY LAW – PROPERTY – Interim – Where the mother seeks the sale of the matrimonial home – Where the father seeks that the property be listed for tenancy – Where neither party has the capacity to meet mortgage repayments even in the event the property is tenanted.

Family Law Act 1975 (Cth) ss 60CA, 60CC

Hatton v Attorney-General of the Commonwealth of Australia & Ors (2000) FLC 93‑038
Marvel v Marvel [2010] FamCAFC 101
McMahon v Gould (1982) 7 ACLR 202
Mohsen & Collings [2015] FamCA 583
Re K (1994) FLC 92-461

APPLICANT:

Mr Halstead

1st RESPONDENT:

Ms Lees

2nd RESPONDENT:

Ms Halstead

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

FILE NUMBER:

ADC

4768

2017

DATE DELIVERED:

20 March 2019

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

28 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McGinn and Mr Ey

SOLICITOR FOR THE APPLICANT:

Howe Jenkin

COUNSEL FOR THE 1ST RESPONDENT:

Ms Pyke QC

SOLICITOR FOR THE 1ST RESPONDENT:

Mellor Olsson

COUNSEL FOR THE 2ND RESPONDENT:

Ms Lewis

SOLICITOR FOR THE 2ND RESPONDENT:

Douglas Hoskins Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Roberts

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

Orders

That the applicant and first respondent take all steps and sign all documents (within seven (7) days of any documentation being provided to that party) to place upon the market for sale the house, B Street, C Town (Property A), South Australia being the whole of the land comprised…

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 Halstead and Lees & Anor

Details

AGLC: Halstead and Lees & Anor [2019] FamCA 158
Case: [2019] FamCA 158
Decision Date: 20 March 2019

CaseChat Overview and Summary

In this matter before Berman J, the court considered several disputes between the parties, including interim property orders, the suspension of time spent with the paternal grandmother, and objections to a subpoena. The mother sought the sale of the matrimonial home, while the father proposed it be tenanted, with neither party able to meet mortgage repayments. The paternal grandmother sought to resume spending time with the child on a gradually increasing basis, with the child to remain in the mother's care pending trial, and the mother's mental health was a factor. The father also sought to adjourn the trial date due to his criminal proceedings, citing a disability that made protracted evidence difficult. Furthermore, the mother objected to the inspection and copying of documents produced by the child's treating medical practitioner via subpoena, arguing it was overly broad and constituted "fishing," with concerns about revealing her address or the children's school location due to an Intervention Order.

The legal issues before the court included determining the best interests of the children in relation to time spent with the paternal grandmother, considering the mother's mental health and the children remaining in her care. The court also had to assess the factors relevant to granting an adjournment of the trial date, particularly in light of the father's criminal proceedings and his disability. A significant issue was the mother's objection to the subpoena, requiring the court to balance the need for relevant evidence against concerns for privacy and the potential for disclosure of sensitive information, such as addresses. Finally, the court was tasked with making interim property orders regarding the matrimonial home, considering the parties' financial capacities.

Berman J applied principles relating to the best interests of children in family law matters and the court's discretion in managing its caseload, including the granting of adjournments. Regarding the subpoena, the court referenced *Hatton v Attorney General of the Commonwealth of Australia & Ors* (2000) FLC 93-038, emphasizing that the purpose of requiring document production is to add to relevant evidence. The court held that the evidence of the child's treating medical practitioner had apparent relevance, but accepted the mother's concern about disclosure of her and the children's whereabouts. Consequently, the court ordered the mother to prepare a schedule of documents to which she objected on privacy grounds, without disclosing their content, to facilitate a determination on their inspection.

The court made several orders, including that the matrimonial home be placed on the market for sale, with specific terms regarding the agent, marketing, and costs. The father was permitted to retrieve personal belongings from the property under supervision. The trial date was vacated and relisted for a later date, and timeframes for filing documents were varied. The application by the second respondent and the father's response were dismissed, save for one paragraph. The mother was ordered to provide details of professionals involved in the child's therapy and the children's general practitioner, with an injunction restraining the father and paternal grandmother from contacting these professionals. The mother was also ordered to provide a schedule of objectionable documents from the subpoena, with provisions for redaction or further argument if agreement could not be reached.

Orders

Orders of the court

That the applicant and first respondent take all steps and sign all documents (within seven (7) days of any documentation being provided to that party) to place upon the market for sale the house, B Street, C Town (Property A), South Australia being the whole of the land comprised and described in Certificate of Title … Folio … B Street, C Town (“Property A”) upon the following terms:-

(a) The appointment of Mr P from the P Group or other real estate agent as is mutually agreed between the parties in the event that Mr P is unable to carry out or complete the sales agency (“the agent”);

(b) In keeping with all terms and conditions as are set out in any Sales Agency Agreement subject to any variation as may be agreed by the parties and the agent;

(d) With the parties to authorise any preparatory work to prepare the property for marketing for sale as is recommended by the agent at their equal costs;

(e) With the parties to comply with any recommendations for marketing as are made by the agent at their mutual cost (noting that any expenses paid entirely by one party are to be the subject of a reimbursement to that party as to 50 per cent thereof at the time of settlement of the sale of the Property A);

(f) With the parties to engage such conveyancer as is recommended by the agent and to meet all costs of the work carried out by such conveyancer on an equal basis;

(g) With the parties to authorise payment to the agent of his/her sales agency commission fees and charges and to authorise payment to the conveyancer of his or her costs and charges;

(h) With the parties to authorise the conveyancer to pay such monies as are necessary to discharge any mortgage secured by Property A;

(i) With the parties to authorise the conveyancer to invest the then available balance of proceeds of sale of Property A subject to any agreement in writing between the parties (via their solicitors) to disperse all or any portion of the funds available which are otherwise to be held pending a Court Order in this matter.

Upon the appointment of a real estate agent the father or his agent be permitted to enter Property A under the supervision of the agent to retrieve his personal belongings.

That the trial presently listed to commence on 15 July 2019 be vacated and be relisted for hearing at 10.00 am on 23 September 2019 (7 days allowed).

That the time for compliance by the parties in respect to orders made 12 December 2018 in relation to the filing of documents be varied as follows:-

(a) The time for the applicant to comply with orders 3, 4 and 6 be extended by 14 days.

(b) The time for the respondent mother and respondent paternal grandmother to comply with order 5 be extended by 14 days;

(d) The time for the practitioners for the parties to comply with order 14 be extended to 4.00 pm on 18 September 2019.

That the Application in a Case filed by the second respondent on 10 December 2018 is dismissed.

That the Response filed by the father on 25 September 2018 is dismissed SAVE as to paragraph 10.

That within twenty one (21) days the mother advise the father via his solicitors as to the detail of all professionals involved in X’s ongoing therapy (including but not limited to those at Agency K) and the children’s treating general practitioner PROVIDED THAT the father and paternal grandmother shall be restrained and an injunction granted restraining them from contacting or communicating with those professionals subject to further order.

That within twenty eight (28) days the mother provide to the father, paternal grandmother and the Independent Children’s Lawyer a schedule setting out the documents produced by Dr F pursuant to a subpoena issued on 21 December 2018 to which she objects on the basis that the document or documents would or may be likely to disclose the address of the mother and/or the children, their contact details or their preschool or primary school to which they attend.

If there is agreement that the documents identified by the mother as objectionable can be either redacted or separated from the other documents produced THEN leave is given for the schedule prepared by the mother to be forwarded to the chambers of Justice Berman whereupon the registry will separate and/or mark the documents identified as the subject of agreement following which the parties will have leave to inspect and copy the documents produced under subpoena.

10.

If there is no agreement or only partial agreement in respect of the documents identified by the mother THEN leave is given for the matter to be listed for argument on seven (7) days’ notice.

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

In Hatton v Attorney General of the Commonwealth of Australia & Ors (2000) FLC 93-038 the Court considered at 87,600 that:-The only legitimate purpose of requiring the production, and permitting the inspection, of a stranger’s documents can be to add, in the end, to the relevant evidence in the case. And then at 87,601 the Full Court set out the following:-The ultimate question of whether they are ruled to be relevant and/or admissible is left to the third stage of receiving evidence. In my view, this practice is within the wide judicial discretion already referred to, to permit inspection of documents in the control of the court pursuant to a valid subpoena. The crucial question in relation to the exercise of the discretion to permit inspection in the second step is whether the documents have apparent relevance to the issues. It is at the third step that questions between the parties of relevance in fact and admissibility are ruled upon. The judge is in some difficulty in determining whether the documents are relevant prior to the presentation of the evidence or at the commencement of the case. If there is particular objection from the witness, or questions of privacy are involved, no doubt procedures can be adopted to ensure that only relevant documents are inspected. In other cases it would appear appropriate to proceed to exercise the discretion, provided the documents are apparently relevant or are on the subject matter of the litigation. However, the limitation of the exercise of the judge’s discretion to allow inspection is that the document contains information of apparent relevance to the issues. Once the judge has that opinion, inspection will normally be allowed, notwithstanding that the document is not admissible as it stands, and notwithstanding that the party seeking inspection has not given any undertaking to tender it, or use it in cross examination. As discussed, I consider that the evidence of Dr F in circumstances where his reports have been the subject of tender and reliance by the mother satisfies the test of apparent relevance. I do however accept that information contained in the file that is not relevant to the professional engagement of Dr F with X should not be the subject of inspection and accordingly, I propose to order that the mother prepare a schedule of documents that identify a particular document to which objection is taken on the basis that it is likely to disclose the whereabouts of the mother and/or the children and a short summary as to the nature of the document but without any requirement to disclose the content of the document. If agreement is not reached then the subpoena and the mother’s objection will be listed for further consideration. I make orders as appear at the commencement of these reasons.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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