Hardwick & Hardwick
[2022] FedCFamC1A 179
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Hardwick & Hardwick [2022] FedCFamC1A 179
Appeal from: Hardwick & Hardwick [2022] FedCFamC2F 834 Appeal number(s): NAA 138 of 2022 File number(s): ROC 104 of 2022 Judgment of: MCCLELLAND DCJ, RIETHMULLER & STRUM JJ Date of judgment: 25 October 2022 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence and issue subpoena – Where the evidence was not likely to have produced a different result at first instance – Application in an Appeal dismissed – Costs to be dealt with in the appeal. Legislation: Evidence Act 1995 (Cth) s 79
Family Law Act 1975 (Cth) Pt VIII, ss 44(3), 93A(2)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.34
Cases cited: CDJ v VAJ (1998) 197 CLR 182; [1998] HCA 67
Santos Ltd & Ors v Pipelines Authority of South Australia (1996) 66 SASR 38; [1996] SASC 5578
Number of paragraphs: 27 Date of hearing: 25 October 2022 Place: Brisbane (via videolink) The Applicant: Litigant in person Solicitor for the Respondent: Ms Smith, VAJ Byrne & Co Solicitors ORDERS
NAA 138 of 2022
ROC 104 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR HARDWICK
Applicant
AND: MS HARDWICK
Respondent
order made by:
MCCLELLAND DCJ, RIETHMULLER & STRUM JJ
DATE OF ORDER:
25 OCTOBER 2022
THE COURT ORDERS THAT:
1.The appellant’s Application in an Appeal filed 17 October 2022 is dismissed.
2.The issue of costs in respect to the Application in an Appeal will be considered in the appeal.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hardwick & Hardwick has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTDEPUTY CHIEF JUSTICE MCCLELLAND:
introduction
On 27 May 2022, a judge of the Federal Circuit and Family Court of Australia (Division 2) made orders that, pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”), the respondent wife be granted leave to proceed with an application for property orders pursuant to Pt VIII of the Act. The appellant seeks leave to appeal that decision. That application for leave is listed for hearing next Tuesday on 1 November 2022.
This decision concerns an Application in an Appeal, filed by the appellant husband on 17 October 2022, seeking leave to issue a subpoena to the Queensland Police Service with a view to adduce further evidence in respect of the appeal. That further evidence is not identified, other than in the context of documents which the appellant anticipates will be produced by the Queensland Police Service pursuant to a subpoena that is attached to the Application in an Appeal. The documentation sought to be produced by that subpoena relates to the interactions of both parties with the Queensland Police Service and the Queensland criminal justice system.
For reasons which I now explain, I am of the view that the Application in an Appeal should be dismissed.
Proposed Orders
The orders sought in the Application in the Appeal are as follows:
1.Leave to adduce further evidence by the way of a new subpoena from the Queensland Police Service
2.To have the Subpoena material available for viewing on or before 27 October 2022 in the Brisbane chambers
statutory context and relevant legal principles
Rule 13.34 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides;
(1)A subpoena may be issued in an appeal only if leave to issue the subpoena has been given by:
(a) for an appeal heard by a Full Court—that Full Court; or
(b) for an appeal heard by a single Judge—that Judge.
(2)A document produced in compliance with a subpoena issued in accordance with subrule (1) may be inspected only with the leave of the Full Court referred to in paragraph (1)(a) or the Judge referred to in paragraph (1)(b).
It is well accepted that, for a subpoena to be issued, the applicant for the subpoena is required to demonstrate that there is a legitimate forensic purpose in seeking the production of the documents identified in the subpoena (Santos Ltd & Ors v Pipelines Authority of South Australia (1996) 66 SASR 38).
As noted, the appellant intends to issue a subpoena to the Queensland Police Service for documents relating to the interaction of the parties with that police service and the preparation of any criminal proceedings arising from such interaction. Determination as to whether the appellant has a legitimate forensic purpose in seeking to issue the subpoena necessarily requires the application to be considered in the context of the strictures that apply to the reception of further evidence on an appeal.
Pursuant to s 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), the Full Court has discretion to admit further evidence. The section relevantly provides:
In an appeal, the Federal Circuit and Family Court of Australia (Division 1):
(a) must have regard to the evidence given in the proceedings out of which the appeal arose; and
(b) has the power to draw inferences of fact and, in its discretion, to receive further evidence , which evidence may be given:
(i)as provided for in Division 2 of Part XI of the Family Law Act 1975 ; or
(ii)by oral examination before the Court or a Judge; or
(iii)otherwise in accordance with section 73 of this Act.
That section essentially replicates the now repealed s 93A(2) of the Act, which was considered by the High Court of Australia in CDJ v VAJ (1998) 197 CLR 182 (“CDJ”). The majority judgment in that matter was delivered by their Honours McHugh, Gummow and Callinan JJ, who will collectively be referred to as the plurality.
The plurality explained, at [169], that to take other than a responsibly cautious approach in considering whether to admit further evidence in an appeal would “tend to throw into jeopardy the finality of orders made by primary judges and give them a merely provisional status”.
The purpose of permitting further evidence in an appeal is to provide the evidentiary foundation for setting aside the orders of the primary judge. In that context, the appellate court must be satisfied that “given the findings of the trial judge, the further evidence if tendered before him [or her] was likely to have produced a different result” (CDJ at [149]). The plurality in CDJ at [149] made it clear that it was not enough for the appellate court to form the view that, taking the evidence as a whole, including the further evidence that the party seeks to be admitted, “another judge might make a different order” (emphasis added).
As an additional consideration that is relevant in this case, the failure by a party to call evidence that was available at the time of the trial “will ordinarily weigh heavily in the exercise of the discretion” as to whether that evidence should be received in the appeal (CDJ at [116]).
Consideration
The appellant’s affidavit, filed 17 October 2022, filed in support of the Application in an Appeal does not specifically identify the ground of appeal to which the application relates. However, the appellant clarified, in the course of these proceedings, that he seeks to relate the information he is seeking to his first ground of appeal, which is as follows:
1.Her Honour has not considered all evidence and has made a finding of facts on important issues which could not be supported with evidence; Her Honour has based her finding on the [respondent] not knowing that she was divorced [however] I have provided evidence that proves the [respondent] was aware of the divorce.
It is to be noted that Ground 1 does not specifically raise the issue of mental health, however, for the purposes of this appeal, I have accepted that the issue of mental health is included in the reference to the findings of the primary judge.
In that respect, I have had regard to the clarification provided by the appellant in his oral submissions as well as paragraphs 7 and 8 of his affidavit filed 17 October 2022 in support of his Application in an Appeal, which are as follows:
7.In the [respondent's] affidavit she relies on mental health to be the reasons for delay and that these mental health problems were caused by alleged domestic violence throughout our relationship.
8.In my affidavit I rely on the fact that any health issues the [respondent] suffers are not from domestic violence as she alleged, however are from the excessive use of prescription drugs.
Attached to the appellant’s Application in an Appeal is the proposed subpoena which the appellant has, by way of oral submission, advised the Court that he seeks leave to issue. The documents sought in that subpoena are listed as being within seven classes of documents in respect to both of the parties, being:
2.Criminal histories for [the parties]
3.QPS Summary of Domestic Violence Conditions and Orders, and Applications for Domestic Violence order/s relating to [the parties]
4.Statements, records, notes, relating to any incidents that have occurred between [the parties]
5.Audio/video recorded statement/s made pursuant to Section 93A of the Evidence Act 1977 in relation to [the parties]
6.QPrime Occurrence Reports (including but not limited to those concerning domestic and family violence offences) relating to [the parties]
7.Copies of QP9’s (if any) in relation to [the parties]
8.Copies of briefs of evidence (if any) in relation to [the parties].
(As per the original)
It is clear that the appellant is seeking the production of documentation, much of which, with due and proper enquiry, would have been available to him to present at the hearing before the primary judge. That is not, however, central to my decision.
Central to my decision is the fact that the appellant has failed to establish that the admission of this further evidence was likely to have changed the outcome of the case at first instance.
Paragraph 8 of the appellant’s affidavit makes it clear that he is seeking to adduce the evidence in order to establish that “any health issues the applicant suffers are not from domestic violence as she alleged, however are from excessive use of prescription drugs.” At paragraph 24 of the appellant’s trial affidavit, filed in respect to the primary proceedings on 30 March 2022, the appellant acknowledged that “[the respondent] does have significant mental health problems”. Given that admission, it can reasonably be inferred that the reference to health issues is a reference to mental health issues.
The first hurdle faced by the appellant is that it is unlikely that the evidence, sought from the Queensland Police Service, would be admissible to establish the nature of the respondent’s mental health condition, or the cause(s) of that condition. These are property proceedings and the rules of evidence apply. Unless in the form of an expert report from an appropriately qualified mental health expert, provided in compliance with the relevant Rules of the Court, any documentation reflecting upon the appellant’s medical condition would be inadmissible lay opinion (s 79 of the Evidence Act 1995 (Cth)).
Further, the primary judge was simply required to determine whether the mother’s challenge with mental health, which was an uncontroversial issue before her, was a justifiable reason for the delay. Her Honour was not required to address the issue of causation.
The appellant’s case before the primary judge was that the respondent failed to provide a satisfactory explanation for her delay in commencing proceedings, in circumstances where she failed to provide evidence as to how the nature of her mental illness impeded her ability to make decisions relating to the obtaining of advice and commencing proceedings. This was particularly so, it was contended, in the context where she had provided evidence that she had been in receipt of treatment in respect to her mental health condition. As I have indicated, the issue of causation of the respondent’s acknowledged mental illness was not raised in the appellant’s submissions. Moreover, the primary judge confirmed at [16] that she was not able to make findings of fact in the context of the procedural hearing.
Disposition
The appellant’s stated purpose for seeking the documentation from the Queensland Police Service is to establish that the perpetration of family violence has not caused the respondent’s mental illness, but rather, that the respondent’s mental health condition is due to substance abuse. In circumstances where the issue of causation of the respondent’s mental health condition was not relevant to the decision of the primary judge, the admission of documentation going to that issue, even if admissible, would not have been likely to have resulted in a different decision by the primary judge.
For these reasons, the Application in an Appeal must be dismissed.
Costs
In circumstances where this application has been listed for urgent hearing, it has not been possible for the parties to comply with their obligations under the Rules in respect of costs associated with this Application in an Appeal. Accordingly, I am of the view that the issue of costs should be determined in the context of the appeal itself.
RIETHMULLER J:
I agree with the reasons of the Deputy Chief Justice and I agree that the Application in an Appeal should be dismissed and that the question of costs should be reserved to be dealt with in the appeal.
STRUM J:
I, too, am in agreement both with the orders to be made and the reasons for judgment.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland, Riethmuller & Strum JJ. Associate:
Dated: 31 October 2022
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