Hawtin and Hawtin (No 2)

[2018] FamCA 955

FAMILY COURT OF AUSTRALIA

HAWTIN & HAWTIN (NO 2) [2018] FamCA 955

FAMILY LAW – CHILDREN – Parenting – interim proceedings – issuing of subpoena to principal of children’s school – application to subpoena principal to give evidence during interim proceedings – inappropriate in the circumstances – leave refused.

APPLICANT: Ms Hawtin

RESPONDENT: Mr Hawtin

INDEPENDENT CHILDREN’S LAWYER: Ms Mistry

FILE NUMBER: CAC 897 of 2017

DATE DELIVERED: 12 November 18

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 12 November 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Self-representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid, ACT

Orders

1. The Father’s Application in a Case filed on 13 August 2018 is dismissed. 

IT IS FURTHER ORDERED THAT

1. I discharge the order adjourning the application for a subpoena for Ms F to be dealt with at the giving of trial directions.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hawtin & Hawtin (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 897 of 2017

Ms Hawtin

Applicant

And

Mr Hawtin

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Having heard the parties on the question of whether or not there should be a partial discharge of the order that prevents the change of schooling arrangements for the children, and noting that the Mother seeks to change the school that X currently attends so that in 2019 he might attend the Suburb D public school, an application has been filed with the Court to cause the principal of X’s current school, Ms F, to attend Court to give evidence.  That application was initially filed in the Federal Circuit Court and it was unclear to me that the filing of the application related to the interim proceedings that are now being conducted before me.  On that basis I had indicated to the parties, following hearing argument on schooling matters, that Ms F was a relevant witness to the proceedings more generally and that the issue of a subpoena would be dealt with on the giving of final trial directions. 

2. Having given that order it was identified to me by the Father that he intended for Ms F to give evidence in the interim proceedings as the principal for the school that X is currently attending and therefore able to talk about the arrangements that are in place for X's schooling, as well as the other matters that had been identified in his affidavit.  Permission will not be granted for the issuing of a subpoena to bring Ms F to give evidence in the interim proceedings.  It is an unusual course of action for interim proceedings to be conducted with an oral component, and it is extreme circumstances which justify that occurring. The question of what school X might attend next year does not fit within the level of circumstance that would justify the issuing of a subpoena to have the principal give evidence as to the current schooling arrangements. 

3. It is notable of course that there were other matters available to the parties if they wished to call further evidence about the arrangements at school and those arrangements have not been pursued by either of the parties. 

4. Accordingly, I refuse the application for the issue of a subpoena for Ms F to attend to give evidence in the interim proceedings.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 12 November 2018.

Associate: 

Date:  13 November 2018