Happell and Pedder

[2013] FCCA 1187

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAPPELL & PEDDER [2013] FCCA 1187

Catchwords:
FAMILY LAW – Parenting – Interim Property – long-running parenting contest – issues of significant geographical distance between parents – allegations of use of wrong medication – contest over property and disclosure of documents – objections to subpoena – discoverable documents – duty of full and prompt disclosure.

Legislation:

Family Law Act 1975, s.61DA

Federal Circuit Court Rules2001, Part 14, Part 15A

Australian Gaslight Company v The Australian Competition and Consumer Commission (2003) FCR 317; (2003) ATPR ¶41-966
Behrooz v the Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486
Hatton v the Attorney-General (2000) 26 Fam LR 570
Mulley v Manifold (1959) 103 CLR 341
National Employers’ Mutual General Insurance Association v Waind & Hill (1978) 1 NSWLR 37 (affirmed (1979) 141 CLR 648)
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363
In the Marriage of Tate (2000) 26 Fam LR 731
Weir & Weir (1993) FLC 92-338

Applicant: MR HAPPELL

Respondent: MS PEDDER

File Number: CAC 234 of 2011

Judgment of: Judge Neville

Hearing date: By written submissions

Date of Last Submission: 8 August 2013

Delivered at: Canberra

Delivered on: 23 August 2013

REPRESENTATION

Counsel for the Applicant: Self-represented

Solicitors for the Applicant:

Solicitor/Advocate for the Respondent: Mr S Cameron

Solicitors for the Respondent: Dobinson Davey Clifford Simpson

ORDERS

Property Orders:

1. The objections to the subpoenae issued on 19 July 2013 be dismissed;

2. Leave is granted to all parties to inspect and photocopy all documents produced under subpoena;

3. The property matter be listed for final hearing on 25 October 2013 commencing at 10am before Judge Kelly in Canberra;

Parenting Orders:

1. All previous parenting Orders be discharged;

2. The Mother have sole parental responsibility in relation to all major long term issues for the children, X, born (omitted) 2002, Y, born (omitted) 2004, Z, born (omitted) 2005 and W, born (omitted) 2006 (“the children”);

3. The Father have responsibility for any day-to-day issues relating to the children when the children are in his care;

4. The children live with the Mother;

5. The children spend time with the Father as follows:

   (a)Each alternate weekend commencing from the conclusion of school on Friday until 3:30pm on Sunday, and for the purposes of this Order the Father shall collect the children on Friday from their school and the Mother or her agent shall collect the children on Sunday from (omitted). If there is a long weekend, the children will be returned at 3.30pm on the Monday at the same changeover location;

   (b)For half of the gazetted ACT school holidays, being the first half in 2013 and each alternate year thereafter, and the second half in 2014 and each alternate year thereafter;

   (c)In even numbered years from 5:00pm on 23 December to 5:00pm on 24 December;

   (d)When the Easter period falls outside the ACT gazetted term holidays, from Easter Thursday until 3:30pm on the following Easter Monday, in each alternate occasion;

   (e)For the children’s birthdays, when the children are not already spending time with the father, from 3:00pm-7:00pm at the father’s discretion unless the Mother has arranged a birthday party within those times in which case the father may request the same time on the day preceding the birthday or the day following the birthday;

6. For the purposes of defining school holidays, the relevant period is from the last day of the school term until the first day of the following school term, with the children spending the last night of any school holiday period with the Mother;

7. To facilitate time pursuant to Order 8 herein, the children are to be collected from school at the conclusion of school or from the Mother’s home if it is a non-school day, and return to the Mother or her agent at the (omitted);

8. The time spent with the Father pursuant to Order 8.1 will be suspended during any school holiday period and such time will recommence after the school holiday period with the children spending time on the first weekend of the term with the parent with whom they spent the first half of the school holidays.

9. The children shall communicate with the other parent by telephone and email when they are spending time with the other parent in accordance with the children’s wishes but no less than on two occasions each week. For that purpose each parent will do all reasonable acts and things necessary to facilitate and encourage the children to receive and make calls to the other parent.

10. The parents are to do all things necessary to authorise the schools at which the children attend to make available to both parents all school reports and any relevant information or correspondence relating to the children.

11. The Mother and Father shall do all things necessary to ensure the other party is kept informed at all times of their respective mobile telephone numbers, email address and residential address.

12. The Mother is to keep the Father informed as soon as reasonably convenient, of any medical treatment (including consultations with any medical specialists) required by or proposed for the children.

13. Both the Father and the Mother be hereby restrained by injunction from sending any abusive or derogatory or offensive messages to the mother by email, SMS text message, letter or by any other electronic means.

14. Both the Father and the Mother be hereby restrained by injunction from posting any material on Facebook, or any other social networking site that refers to these proceedings, the other parent or any issue or allegation raised in this proceeding.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 234 of 2011

MR HAPPELL

Applicant

And

MS PEDDER

Respondent

REASONS FOR JUDGMENT

Introduction

1. There are two matters to determine in relation to these long-running proceedings in which there have been multiple determinations, mostly in relation to parenting issues, over the years.  The two matters concern (a) further (and final) parenting orders, and (b) limited but on-going orders, which arise out of still unresolved property issues, in relation to disclosure sought by the Wife, as well as objections by the Husband (and his family) to subpoenæ issued on behalf of the Respondent Mother/Wife (“the disclosure issue” or “the subpoena issue”).

2. After setting out some procedural history I will deal with the subpoena issue first, then the further interim parenting matters.

Procedural History

1. The current history begins with parenting orders made by consent on 27^th May 2011, with further orders in relation to some of the “mechanics” of those orders, such as in relation to changeover, made by the Court on 21^st October 2011.

2. On 6^th July 2012 the Mother filed a Response (and detailed affidavit) that sought both [further] parenting and property orders.  This Response was to the Father’s Application, filed on 29^th May 2012, which sought orders in relation to parenting and a stay of certain child support payments, but nothing in relation to property.

3. The Mother’s Response regarding property stated that the orders sought would be particularised “upon the Father providing full and frank disclosure.”  The emphasis is added in the light of the history recounted below, and particularly the very recent correspondence from Mr Happell that relates to the [recent] subpoena issue.

4. On 11^th July 2012, the Court ordered the Father to file a Reply to the Mother’s Response.  The Reply was to be solely in relation to property matters.  The parenting issues raised by the parties were ordered to be dealt with by way of written submissions, a time-table for which was set out in the July 2012 orders.

5. On 2^nd and 8^th August respectively, the Husband filed a detailed affidavit and a Reply.  In the Reply, the Husband sought disclosure of, among other things, details of any interest in any companies or trust, copies of tax returns, copies of bank statements for a defined period of time, and information regarding any purchase of real estate with the Mother’s new partner.

6. On 9^th August 2012, the Court delivered [oral] reasons and made orders dismissing the Father’s application for a stay in relation to child support, and that the Mother have sole parental responsibility for the children.  In the course of those reasons, given that final parenting orders had been made only in May and October 2011, I noted that no one had raised, either as a thresh-hold consideration or otherwise, any Rice & Asplund issue.[1]

   [1] Rice & Asplund (1979) FLC ¶90-725.

7. Certain other parenting orders were made on 9^th August, in relation to the children spending time with their Father, and restraining him from sending abusive, derogatory or offensive messages to the Mother by any means.  There was significant evidence of messages that conformed to the descriptions just given.

8. On 5^th September 2012, orders were made for the parties to provide further discovery within 21 days, and then attend upon a registrar for a conciliation conference.  This conference was conditional upon the matter being ready to proceed on the scheduled date of 15^th October.

9. According to the Court file, and without reference to my Chambers, the registrar adjourned the matter until 29^th November.  The reason for the adjournment is not disclosed on the registrar’s bench sheet.  The matter did not resolve at the conference held on that date, and the registrar adjourned the matter back to the Court list on 13^th February 2013.

10. On 29^th November, the Father filed an Application in a Case seeking final [parenting] orders which, he said, were “listed in Attachment A”.  Unfortunately, there was no “Attachment A” to the Application in a Case.  Fortunately, in his supporting affidavit, filed on the same date (which unfortunately referred to existing orders as “Family Court Orders”), there was an Annexure A.  Unfortunately also, this affidavit (including its annexures) was not paginated, thus making it somewhat problematic properly to reference.

11. On 13^th February 2013, with a view to expediting the determination of all matters in issue, and in the light of the Court’s very limited available dates for hearing, orders were made (by consent) for the filing of written submissions in relation to any and all outstanding parenting matters.  In this regard, the Mother filed an affidavit on 1^st March, the Father filed submissions on 12^th March, the Mother’s submissions were filed on 27^th March (together with a minute of orders sought), and the Father filed submissions in reply on 3^rd April.

12. On 9^th April, the Court made further orders in relation to specific discovery.  The orders record that the Wife’s solicitors had written to the Husband on 1^st March in which they had detailed the documents still outstanding and which were required.

13. On 12^th June, orders were made for the parties to attend another conciliation conference (on 6^th August), with the matter otherwise adjourned to 15^th August.  The conciliation conference date was vacated by the registrar.  As with the earlier conference, the reason for this course is not disclosed on the bench sheet.

14. On 19^th July, various subpoenæ were issued on behalf of the Wife.  Objections were filed by Ms R, who confirmed that she is the Applicant Husband’s Mother.  The substance of the objections was that the Husband is not a director or shareholder of the company (omitted) Pty Ltd, or a director or shareholder of any related entity [such as (omitted) Unit Trust].  Further, Ms R contended that because that company is not a party to the proceedings, any documents or records relating to it need not, or should not be available for inspection.

15. For completeness, I note that the subpoenæ were directed to (omitted) Bank, (omitted) Bank, and the (omitted) Bank.

16. Originally, the objections to the subpoenæ were listed for hearing on 15^th August.  However, given that there remained other [parenting] matters to be determined, which would be dealt with by written submissions, the parties were notified that the objections to the subpoenæ would also proceed by way of written submissions.  Orders to this effect were made in Chambers, after notification had been given to the parties.  The Wife filed submissions on 8^th August.

17. Apart from the terms of Ms R’s objections, neither she nor Mr Happell have filed any further submissions regarding the objections to the subpoenæ.

18. On 14^th August, the Husband wrote, via email, to the registrar.  He did not copy it to the Wife’s solicitor.  In that email the Husband said that (a) it was his understanding that he could not contact my Associate directly, (b) he wished the property matter to be listed for final hearing as soon as possible, (c) he objected to the Wife seeking further disclosure of documents/information, and (d) he stated that the Wife’s solicitor had indicated to the Court at a recent appearance that all matters of discovery had been complied with.  The Husband also objected to the late, or lack of, notice of the subpoenæ, and indicated that he could not see the basis for these subpoenæ.

19. The Court has since provided the Wife’s solicitor with a copy of Mr Happell’s email of 14^th August.  The Court has also confirmed to Mr Happell the proper manner by which he may contact the Court, namely by reference to the guidelines provided by the Court.

The Subpoena Issue

1. The law and practice in relation to subpoenæ is relatively well-settled, and, accepting that Mr Happell is a self-represented litigant, well-known.

2. For current purposes, it is sufficient to note the following matters of principle.

3. In Behrooz v the Secretary, Department of Immigration and Multicultural and Indigenous Affairs, witness summonses were issued that required the production of extensive documentary material.  The principles articulated in that case, in my view, apply equally to production of documents pursuant to subpoena.  In Behrooz, Gleeson CJ said, with customary precision, at [3]:[2]

   [2] Behrooz v the Secretary, Department of Immigration and Multicultural and Indigenous Affairs, (2004) 219 CLR 486.

   A subpoena must serve a legitimate forensic purpose.

4. In the same case, Hayne J said, at [180] that the use of such a ‘forensic tool’ [such as a subpoena] to obtain documents cannot be used (emphasis in original):

   … to trawl through what was produced in the hope of generating lines of enquiry not otherwise available to support the case which it was sought to make.  To decide whether that is so, however, would require a much closer analysis of the categories of documents sought, by reference to a relevant legal issue.

5. And finally, in the same case, after referring to the breath-taking width of the documents sought in that matter, and the imprecision of the summonses issued, Callinan J cautioned, at [224]:

   [the seeking of documents] cannot be a mere fishing expedition.

6. The comments of the High Court in Behrooz, in many respects, reflect those made by the New South Wales Supreme Court of Appeal in National Employers’ Mutual General Insurance Association v Waind & Hill.[3] 

   [3] National Employers’ Mutual General Insurance Association v Waind & Hill (1978) 1 NSWLR 37 affirmed on appeal (1979) 141 CLR 648.

7. By way of general principle also, I note that when French J was on the Federal Court of Australia, in Australian Gaslight Company v the Australian Competition and Consumer Commission, his Honour said, at [8], that the test for a subpoena is that there must be some “apparent potential relevance” in relation to the documents sought.[4]

   [4] Australian Gaslight Company v the Australian Competition and Consumer Commission (2003) FCR 317; (2003) ATPR ¶41-966.

8. In a family law context, in Hatton v the Attorney-General, the Full Court adopted in large measure an approach similar to that adopted by French J to which I have just referred.[5]  The Court also said that there was a need to look at the apparent relevance of the documents sought, which was by reference to the affidavit material filed in the proceedings.

   [5] Hatton v the Attorney-General (2000) 26 Fam LR 570.

9. I also note, for general reference, the Rules of this Court in Part 15A, which deal with subpoenæ and notices to produce.

10. I also note [again] that, apart from the matters I have earlier recorded by Mr Happell's mother regarding the objections to the material sought under subpoena, there have been no submissions either by Mr Happell or his Mother.

11. In submissions filed on behalf of the Wife in response to the objections, she submitted as follows.

12. First, by reference to comments by the High Court in Mulley v Manifold, the question of “relevance” of a document is the primary criterion regarding it being “discoverable.”[6]

    [6] Mulley v Manifold (1959) 103 CLR 341.

13. Secondly, as outlined in the submissions, the Wife pointed out that at various times in the past the Husband held office in his parents’ family companies.  The fact that he had resigned from office a little time ago did not, it was submitted, preclude the relevance of financial records of those companies [named in the subpoenæ] to the current proceedings. 

14. It was further submitted that the Husband’s affidavit material also confirmed his knowledge of, and also the parties’ (when married) not insignificant financial dependence on, the funds that came via the family group of companies.

15. Finally, the Wife relied on the Full Court decision in Lee & Ryder to support the application to gain access to the documents produced by the banks but objected to by the Husband’s Mother.  In that case, the Full Court dismissed an appeal against the trial judge’s orders to allow subpoenas that were directed to non-parties.

Consideration & Resolution

1. In short, I accept the Wife’s submissions in their entirety.  Otherwise, I also note the following.

2. First, Division 14 of this Court’s Rules provides for the ‘obligation to disclose.’

3. Secondly, there is significant jurisprudence of long-standing which confirms the duty to make full, frank and prompt disclosure of all financial records that are relevant to the property proceedings before the Court.[7]  The importance of “prompt” disclosure is often over-looked.

   [7] Among many cases, see In the Marriage of Tate (2000) 26 Fam LR 731, and Weir & Weir (1993) FLC ¶92-338.

4. Thirdly, the Full Court decision in Lee & Ryder, in my view, makes it very clear that the documents and records long sought by the Wife, and those now produced by the three banks under subpoena but to which objection is now taken, are properly “discoverable” and properly the subject of the subpoenæ.  They are documents which, in my view, relate directly to matters in issue in the property proceedings between the parties, namely the financial resources available to the Husband, and the recent history of such matters.  The information contained in the bank records is clearly relevant to the financial position of the Husband, either currently and/or historically.

5. Fourthly, in the reasons delivered on 9^th August 2012, I referred specifically to the importance of Mr Happell providing “complete, full and frank disclosure of all financial material.”  I also said that this would necessarily include “relevant family trust and corporate records, as well as relevant financial disclosure concerning his current relationship…”  Accordingly, the Husband has been on formal notice for a very long time of the importance of full and complete disclosure of all relevant financial records.  Relevant financial information would also include the Husband’s new Wife.  Thus far, there has been nothing filed by her.

6. Finally, the documents sought by the Wife, for example, in her long-standing pleas for proper, full and complete discovery, those noted by the Court in August 2012, and now sought by subpoena almost one year later, are documents of the same kind sought by the Husband from the Wife.  What is good for one must also be good for the other.

1. The objections by the Husband’s Mother are not sustainable.  The objections are dismissed and leave is granted to inspect and photocopy documents produced under the subpoenæ issued to the three banks listed earlier in these reasons.

2. For more abundant caution, and particularly because Mr Happell remains a self-represented litigant, I note that there is significant case-law that highlights the risks to parties who have not properly or completely disclosed their financial records in property proceedings.  The risks are not limited to orders for costs.

3. Finally, the outstanding property matters (limited as they are) shall be listed for 1 day on 25^th October before Judge Kelly.

Parenting Matters

1. The Father says that there are [only] three issues to be determined in relation to parenting orders.  The Mother says that there are, in fact, five issues that require attention.

2. The Father contends that the three issues, from his perspective are: “sole parental care”, “paternal grandparent contact” and “electronic communication between the Father and the children.”

3. The Mother says that the issues that should be addressed are: “parental responsibility”, “arrangements during the Easter period”, “additional time with the children at 48 hours’ notice”, “delegating time with the children to the paternal grandparents, paternal aunt and the Father’s partner”, and “telephone communication.”

4. The Mother also contends that, save for the issues just noted, all other parenting orders were made on 9^th August 2012.  Absent an appeal of those orders by the Father, which did not occur, the Mother says that the Father is essentially seeking to re-visit all prior parenting orders, which course is not available to him.

5. While this submission is essentially correct and I generally accept it, there are two difficulties with it.  First, there is no reference to or discussion of Rice & Asplund, or any later cases that discuss the principles there articulated, such as SPS & PLS.[8]  It is not for the Court to make good the lack of submissions by either party. 

   [8] Rice & Asplund (1979) FLC ¶90-725; SPS & PLS (2008) FLC ¶93-363.

6. Secondly, on the one hand, the Mother seems to protest about the Father seeking to re-visit previously made orders, yet, on the other hand, she too seeks to re-visit parenting orders.  As the Mother’s experienced solicitor points out in the submissions on her behalf, these are long-running and bitterly contested proceedings.  Yet there seems an almost insatiable desire on the part of both parents to have the Court continue in a ‘co-parenting role’.  In the circumstances outlined, as tempting as it is simply to reject and dismiss both applications, and in my view, this course is entirely open to it on the principles set out in SPS & PLS given that there is not a sufficient change in circumstances, the Court has no alternative but to deal with the issues now raised by both parties. 

7. For more abundant caution I stress that the orders made in consequence of these reasons should and will be treated by the Court as final parenting orders.

Parental Responsibility

1. As will be apparent from what has been set out earlier, in his primary submissions, the Father refers to “sole parental care.”  In his submissions in reply he refers to “parental responsibility” and his concern about “legal authority over the children while they are in his care.”

2. I dealt with the issue of parental responsibility in the reasons of August 2012. I need only note that I confirmed then that the presumption set out in s.61DA was readily rebutted here because of the utterly fractious and spiteful relationship between the parents. The evidence accepted in August 2012 to support the Court’s finding of the dysfunctional parental relationship need not be repeated here.

3. The order for sole parental responsibility in the Mother’s favour is simply confirmed here for the reasons given in August 2012.  The only variation is simply to confirm that, whenever the children are in the care of the Father, he has responsibility for any day-to-day issues that arise.  This is perhaps what the Father intended to refer to when he referred to “parental care” in his primary submissions.  In any event, the slightly revised ‘parental responsibility’ order should not and must not be construed as any intrusion into the Mother’s sole parental responsibility for major long-term issues as they are defined in s.4 of the Act.

4. In relation to the wider submissions regarding parental responsibility I need only note that the Father contends that Z’s medication is founded upon a diagnosis which he does not accept, and which he suggests has a foundation elsewhere.  The Father says that Z’s symptoms are typical of someone with foetal alcohol spectrum disorder.

5. In this regard (a) Mr Happell is not a medical specialist, (b) there is medical evidence from Z’s treating specialist before the Court, and (c) Mr Happell offers no contrary specialist medical evidence (other than his own opinion) regarding his disquiet about Z’s diagnosis, other than to opine on the cause of the syndrome mentioned, namely the Mother’s [alleged] excessive drinking during the pregnancy with Z.  Because of the lack of relevant evidence, and because it could have been raised in detail previously and was not, this issue should not have been raised.  Accordingly, subject only to the amendment noted in relation to the Father having responsibility for any day-to-day issues that arise when the children are in his care, the application regarding “parental responsibility” is dismissed.

Easter Parenting Arrangements

1. I accept the Mother’s submissions, which are to the effect that (a) the Father has provided no evidence to support his claim for every Easter holiday period with the children, and (b) in the absence of such evidence, Easter holiday time with the children should be shared between the parents, on an alternating basis.

Additional Time with the Children on 48 Hours’ Notice

1. This claim by the Father was later amended in his submissions in reply to giving the Mother 7 days’ notice.  I assume that the Mother’s submissions earlier made would continue to apply even to the greater period of notice proposed by the Father.

2. The Father also proposes that, in addition to the 7 days’ notice, such extra time be conditional on it not clashing with any pre-existing arrangements for the children.

3. Again, the Mother submits that the Father provides no evidence to support his claim for this extra time.  Put another way, and in my words, the Father’s claim is more, and part, of something of a ‘wish-list’ of additional parenting orders.

4. I agree with the Mother’s submissions.  Children need regularity, certainty and consistency in their lives and in their parenting.  That being so, absent written agreement between the parties, and absent any relevant evidence, the application for additional time between the Father and the children cannot be supported and must be dismissed.

Delegation of Father’s Time to Others

1. The major flaws with the Father’s application in this regard are three-fold.  First, and most importantly, the time the children spend with the Father should in fact be between the Father and the children.  It is a matter for him as to whether he spends time with them or allows (regularly or otherwise) others to share that time.

2. Secondly, on the one hand, the Father cannot seek additional time with the children (such as providing due notice as discussed above), and on the other hand, seek to have his time with the children shared or farmed out, so to speak, with others.

3. Thirdly, as important as the children’s relationship with others is, it is not for the Father to make application on someone else’s behalf, such as the paternal Grandparents.  If they seek specific time with the children the proper course is either (a) to spend time with the children when they are with their Father, or (b) to make an application in their own right.

4. Accordingly, there will be no separate order in relation to the “delegation” of time the children spend with their Father.

Electronic Communication

1. In his submissions, the Father acknowledges that having fixed times to speak with the children is problematic or difficult to manage.

2. The Mother also says that having fixed times for each of the four children is problematic and forcing the children essentially to commit to those times risks the children coming to resent their Father.

3. Whereas the Father initially seemed to seek defined days/times, he now proposes a greater degree of flexibility (he says “more flexible in respect of the time of day and day of the week”).  He says that the “key” is that the Mother initiates the “contact” so that it is a time suitable for all the children.

4. In my view, the Mother’s proposed order 8 in her Minute is sufficiently flexible to accommodate the concerns raised by the Father.

Conclusion

1. In his submissions in reply, the Father raises a number of relatively minor issues in relation to the Mother’s Minute of Orders.

2. In my view, only two matters require comment.  First, he notes that order 4.1 of the Mother’s Minute of Orders does not accommodate or take account of public holidays.  In my view, it should do so which would have the consequence that, when-ever there is a public holiday on the Monday, the return of the children to the Mother shall be at the designated time on the Monday rather than on the Sunday.

3. Secondly, orders numbered 12 and 13 in the Mother’s Minute should be mutual, and not directed solely to the Father.

4. Otherwise, and subject to the changes noted, the parenting Orders sought by the Mother should be made on a final basis.

5. The Court so orders.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Neville

Date:  23 August 2013