Henley & Henley
[2019] FamCA 101
•28 February 2019
FAMILY COURT OF AUSTRALIA
| HENLEY & HENLEY | [2019] FamCA 101 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena – Review of Registrar’s decision to refuse the father’s request to issue a subpoena for school attendance records – Where refusal is on the ground of lack of sufficient legitimate forensic purpose –Where solicitor for the mother conceded that at trial the Court would need to determine the genuineness of the mother’s explanation for absences– Where extent of absences from school of both children on the same day could possibly throw light on the issues in the main case - Where decision of Registrar set aside – Where the father permitted to issue the subpoena. |
| Family Law Rules 2004 (Cth) r 18.10(1) |
| Henley & Henley [2016] FamCA 681 Henley & Henley [2017] FamCAFC 142 Henley & Henley [2018] FamCA 694 Hudson Timber & Hardware Co v Chaudhary Group Pty Ltd [2002] FCA 832 Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306; British American Tobacco Australia Services Ltd v John Fairfax [2006] NSWSC 1322 at [5] per Brereton J Alister v R (1984) 154 CLR 404 at [414] per Gibbs CJ. Trade Practices Commission v Arnotts Ltd (No 2) (supra) |
| APPLICANT: | Mr Henley |
| RESPONDENT: | Ms Henley |
| FILE NUMBER: | ADC | 1876 | of | 2014 |
| DATE DELIVERED: | 28 February 2019 |
| PLACE DELIVERED: | In Chambers |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 20 February 2019 |
REPRESENTATION
| THE APPLICANT: | In person |
| SOLICITORS FOR THE RESPONDENT: | Harry Alevizos |
Orders
The applicant have leave to subpoena the Principal of W High School to produce school attendance records in respect to F from January 2016 until 14 December 2018.
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 Henley & Henley 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 CAIRNS |
FILE NUMBER: ADC1876/2014
| Mr Henley |
Applicant
And
| Ms Henley |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These proceedings concern the appropriate parenting arrangements for the only child of the parties’ relationship, being N born in 2010, and hence presently eight years of age (“the child”). On 19 August 2016, for reasons delivered on that day,[1] Berman J made a suite of parenting orders which effected equal shared parental responsibility for the child between Mr Henley (“the father”) and Ms Henley (“the mother”). Further, his Honour ordered that the child live with the mother, and spend time with the father during school terms, school holidays and on special occasions.
[1]Henley & Henley [2016] FamCA 681.
From those orders, the father successfully appealed,[2] although only the orders of Berman J relating to the time which the father spends with the child during school terms was discharged with that issue being remitted for rehearing by a Judge other than Berman J.
[2]Henley & Henley [2017] FamCAFC 142.
Subsequently on 30 August 2018, Stevenson J determined[3] that there was not a sufficient change of circumstance to justify re-litigation on any issue other than that remitted for rehearing by the Full Court.
[3]Henley & Henley [2018] FamCA 694.
On 21 January 2019, in the course of preparing for the hearing of the remitted matter, the father sought leave to issue a subpoena directed to the Principal of W High School for the attendance records of another child, F. F is the mother’s child to an earlier relationship. The justification which they father relied upon to issue that subpoena was that attendance records of F will inform the genuineness of the mother’s explanation for absences from school of the child. I will explain the connection in due course.
On 24 January 2019, a Registrar refused the father’s request to issue the subpoena “on the ground of lack of sufficient legitimate forensic purpose.”
By Application in a Case filed 6 February 2019, the father sought a review of the Registrar’s decision. On 20 February 2019, I heard and determined that Application in a Case, and gave brief reasons for allowing it, indicating that I would augment those brief oral reasons with written reasons in due course. These are those written reasons.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
Rule 18.10(1) of the Family Law Rules makes it clear that a review of a Registrar’s determination is an original hearing, in the sense that error does not need to be established.
As to whether leave to issue a subpoena ought be given, as the Registrar indicated, the issue for determination is whether or not there is a sufficient legitimate forensic purpose behind the subpoena. As to that:
·If a class of document which has material forensic relevance is shown to exist, then a subpoena would not normally be set aside, [4] and inferentially would not be refused to be issued;
·A subpoena will not be liable to be set aside so long as it “could possibly throw light on the issues in the main case;”[5]
·A subpoena will have a sufficient legitimate forensic purpose if it appears to be “on the cards” that the document sought would materially assist a party in their case,[6] or it could possibly throw light on the issues in the substantive proceedings.[7]
[4]Hudson Timber & Hardware Co v Chaudhary Group Pty Ltd [2002] FCA 832.
[5] Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306; British American Tobacco Australia Services Ltd v John Fairfax [2006] NSWSC 1322 at [5] per Brereton J.
[6]Alister v R (1984) 154 CLR 404 at [414] per Gibbs CJ.
[7]Trade Practices Commission v Arnotts Ltd (No 2) (supra).
These principles have been recognised as applying in this jurisdiction by the Full Court: White & Tulloch (1995) FLC 92-640.
LEGITIMATE FORENSIC PURPOSE
The matter in dispute in the remitted hearing is extremely narrow, namely what time the child should spend with the father during school terms. As to that, the father intends to argue for an equal time regime, or presumably, as close to that as may be in the best interests of the child. In argument, he said that one of the reasons he will advance in support of a case for equal time is because, he says, the child has had significant absences from school whilst in the mother’s care, which he says occur because the child is taken from Adelaide to Town P so as the mother can spend time with her boyfriend. In his trial affidavit filed 15 January 2019, the father asserts that the child was absent from school for 28 days in 2016, none of which occurred whilst the child was in his care, and absent from school in 2017 for 25 days and 28 days in 2018.
In her affidavit filed 25 January 2019, the mother asserts that the child’s absences from school are of no concern to the school staff as “all absences have been explained.” In support of that contention she appended a copy of a letter from the child’s school to her dated 23 May 2018.
Somewhat surprisingly, at the hearing before me on 20 February 2019, Mr Alevizos, who appeared for the mother, said that I will need to determine as a matter of fact at trial whether all of the absences of the child from school have indeed been explained accurately and truthfully by the mother. That concession, it seems to me, is significant in the determination of this matter. Until that concession was made, I had considerable difficulty in seeing how the genuineness of the mother’s explanation for the child’s absences informed what time he should spend with the father, however the mother plainly regards it as important, as does the father.
The father seeks, by issue of the subpoena to F’s school, to determine the extent of absences for F. He intends to argue that those records will assist in determining the genuineness of the explanations for the child’s absences from school, and particularly the mother’s assertion that only one such absence was for the purpose of travelling to Town P. Particularly he says that he will be able to establish, one way or the other, by the extent to which there have been coincidental absences of both children on the same day, that inferentially it was because both children were being taken to Town P, and not otherwise. It seems that he therefore intends to argue that, if the mother has been taking the child out of school not because of illness, but because she wishes to continue her liaison with a man in Town P, that will inform the extent to which the child should spend time with him, presumably in that the more time that he spends with the father, the less opportunity there will be for the mother to take the child out of school for such purpose.
Leaving aside the issue contended for by the father, I should note that the documents may well refute his allegations, and in that sense be relevant in any event.
I am mindful that before Stevenson J, the father sought to rely upon the child’s absences from school whilst visiting Town P as a ground for revisiting and re-litigating with whom the child should primarily live. As I have indicated, he was unsuccessful in persuading Stevenson J that was a sufficient change in circumstance to justify relitigation. However in light of Mr Alevizos’ concession that at trial I will need to determine the genuineness of the mother’s explanations for the child’s absences from school, it seems to me that the extent to which there have been absences from school of both children on the same day “could possibly throw light on the issues in the main case” and it is “on the cards” that F’s absences, as demonstrated in the documents from his school, could materially assist the father in the resolution of that question of fact, and perhaps, the question of the extent to which the child should spend time with him. Certainly I cannot exclude at this point the legitimacy of that forensic purpose. Further, as I say, if the documents do not support common absence of both children, then again that appears to me to be a potentially relevant matter in this case, albeit not necessarily of assistance to the father.
CONCLUSION
For these reasons on 20 February 2019, I set aside the decision of the Registrar made 24 January 2019, and permit the father to issue the subpoena as sought.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 28 February 2019.
Associate:
Date: 28 February 2019
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