HOLMES & HOLMES
[2014] FCCA 2634
•4 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOLMES & HOLMES | [2014] FCCA 2634 |
| Catchwords: PRACTICE AND PROCEDURE – Subpoenas – objection to subpoena. |
| Legislation: Family Law Act 1975 (Cth), ss.11F, 60B, 60CA, 61DA |
| Cases cited: GB, by his tutor, FB v Western Sydney Area Health Service [2010] NSWSC 181 |
| Applicant: | MS HOLMES |
| Respondent: | MR HOLMES |
| File Number: | SYC 5125 of 2014 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 3 November 2014 |
| Date of Last Submission: | 3 November 2014 |
| Delivered at: | Sydney |
| Delivered on: | 4 November 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Stevens |
| Solicitors for the Applicant: | Alamein & Co Lawyers |
| Counsel for the Respondent: | Ms Clifton |
| Solicitors for the Respondent: | David Landa Stewart |
ORDERS
The Notice of Objection to the subpoena issued to the Commissioner of Police, NSW Police Service, is set aside.
The Notice of Objection to the subpoena issued to the Commissioner of the Queensland Police Service is set aside.
The Applicant and the Respondent are to have equal shared parental responsibility for the children of the marriage, X born (omitted) 2006 and Y born (omitted) 2007.
The children X and Y are to live with the mother.
The children X and Y are to spend time with the respondent father during the school term as follows:
(a)Each alternate weekend from immediately after school on Friday to the commencement of school on Monday with the father to pick the children up from school at the commencement of the time and return the children to school at the conclusion of the time, commencing on Friday 7 November 2014;
(b)Each other week from immediately after school on Tuesday to the commencement of school on Wednesday with the father to pick the children up from school at the commencement of the time and return the children to school at the conclusion of the time, commencing on Tuesday 18 November 2014; and
(c)Each Thursday from 5:30 pm to 6:30 pm so that the father may have dinner with the children, and for which purpose the mother is to drop the children off at the father’s residence at the commencement of the time and collect the children from the father’s residence at the conclusion of the time.
The parties are only to attend any extra-curricular activities of the children on occasions when the children are in their care or by agreement between the parties.
The Application is listed for Interim Hearing on 8 December 2014 at 2:15pm before Judge Scarlett in Court 3A, level 3, Lionel Bowen Building, 99 Goulburn Street, Sydney NSW 2000.
Each party is to file no more than one affidavit from each witness.
No affidavit is to exceed more than ten (10) pages of text.
All affidavits must be filed and served no later than 1 December 2014.
The parties are to attend a Conciliation Conference with a Registrar at 2:15 pm on 14 January 2015.
No later than 14 days before the Conference:
(a)The parties must pay the fee for the Conference in equal shares;
(b)The parties must make full and frank disclosure of their financial circumstances by complying with Rule 24.03; and
(c)The parties must serve on each other copies of all documents listed in Rule 24.04
The parties must exchange market appraisals or valuations of any asset whose value is in dispute including a valuation or most recent member benefit statement of any superannuation interest no later than 10 days before the Conference.
The parties must provide to the Registrar written confirmation that the Trustee of any superannuation fund sought to be the subject of a splitting order has been accorded procedural fairness no later than 10 days before the Conference.
No later than 7 days before the Conference the lawyers for the parties must forward to the Registrar a Conciliation Conference Document or a Case Outline setting out:
(a)each party’s contention as to contribution based entitlements and the significant factors relied on;
(b)the party’s contention as to any s.75(2) adjustment sought and the s.75(2) factors relied on; and
(c)a draft of the order sought to give effect to that entitlement.
The Applicant must provide to the Respondent within fourteen (14) days a draft Joint Balance Sheet setting out the asset pool contended for by the Applicant and the asserted values and the Respondent within a further fourteen (14) days must insert into that Joint Balance Sheet the Respondent’s contentions as to the asset pool and the asserted values.
In relation to any issue or dispute in the completed Balance Sheet the parties must footnote their reason for their contention.
The Applicant must forward a copy of the completed balance Sheet to the Registrar no later than seven (7) days before the Conference.
No later than 7 days before the Conference a lawyer for each party must give to the other party a written notice setting out:
(a)the actual costs and disbursements incurred by the party up to and including the Conference; and
(b)the party’s estimated future costs and disbursements up to and including the first day of the final hearing.
Copies of the notice in Direction 9 above must be provided to the Registrar at the commencement of the Conference.
The parties must attend the Conference in person.
Each lawyer representing a party must attend the Conference.
The parties must make a genuine effort to reach agreement on relevant matters in issue.
If:
(a)a party fails to attend the Conciliation Conference;
(b)a lawyer representing a party fails to attend the Conference;
(c)a party fails to provide evidence of the value of any asset whose value is in dispute; or
(d)a party otherwise fails to comply with any of these directions the Registrar is to terminate the Conference and list the matter before the Court for further directions within (14) days.
IT IS NOTED that publication of this judgment under the pseudonym Holmes & Holmes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYC 5125 of 2014
| MS HOLMES |
Applicant
And
| MR HOLMES |
Respondent
REASONS FOR JUDGMENT
There are two matters upon which the Court is required to pronounce today. First, the question of Notices of Objection to two subpoenas, issued on behalf of the Respondent father and second, some parenting orders which are sought as what can be described as pre-interim parenting orders until an interim hearing can be held because apparently the parties cannot agree on such matters.
The substantive applications before the Court had their first court date yesterday morning. The mother is the applicant. She seeks parenting orders and property orders. The father has filed and served Response, affidavits and a Financial Statement.
There are also some nine subpoenas, issued by the father’s solicitors, with the leave of the Court, all relating to matters concerning a man with whom the mother has now formed a relationship, one Mr R. Notices of Objection have been filed in respect of each of these subpoenas.
The parties’ counsel had some discussions about these subpoenas and eventually agreement was reached in respect of all but two of them. I made Orders by consent yesterday in which four of the subpoenas were stood over until February. Documents produced under one subpoena were to be released for inspection by the parties’ lawyers, including photocopy access. Two other subpoenas were withdrawn.
However, the subpoenas which attracted the criticism leading to Notices of Objection from the Applicant related to subpoenas addressed to the Commissioner for Police of the States of New South Wales and Queensland.
Each subpoena sought not only a copy of the criminal record or criminal history of one Mr R, but in a wider paragraph:
‘Unredacted copies of all COPS reports relating to any events which may have been reported to the police service in which Mr R has been involved during the period 1 January 1999 to the date of issue of the subpoena, including all documents relating to any proceedings brought by the police against Mr R arising out of domestic violence or personal violence legislation during the same period.’
In each case the objection was made on the basis that the documents requested are not relevant to the proceedings as Mr R is not a party to the proceedings and no contentious issues have been raised in the proceedings that would make his criminal records relevant. The subpoena is a fishing attempt by the Respondent father.
It does appear, from the affidavit evidence, to which I will later refer in more detail, that the father has a negative view of Mr R, who he believes to be a person of violent tendencies. That would appear to be the asserted relevance.
Ms Stevens of Counsel submitted, however, that these two subpoenas were so wide in their ambit that they could conceivably bring in matters that were entirely irrelevant, giving an example of say a report by the man concerned about having had his wallet stolen in Brisbane, which could have no possible relationship to the matters in issue.
Counsel for the Respondent referred the Court to the decision of the Hall J, of the New South Wales Supreme Court, in GB, by his Tutor FB & Western Sydney Area Health Service where His Honour dealt in some detail with an application to set aside a number of subpoenas and His Honour, if I may say so, went to very helpful detail in setting out principles to be applied. Whilst the subpoenas in that case were dealt with under the rules particular to New South Wales courts and not to this Court, the principles, in my view, are persuasive.
I was handed a copy of part of His Honour’s judgment representing paragraphs 1 to 4, inclusive, and paragraphs 59 to 71. In his decision at paragraph 71, His Honour referred to the decision of the Honourable Brereton J, where His Honour said:
‘It is sufficient that subpoenas could possibly throw light on the issues in the substantive proceedings, or it appears to be on the cards that they will do so.’
What I did do, however, was obtain a complete copy of the decision, which I have read with great interest. In my view, paragraph 90 of His Honour’s judgment, to which I was not referred, states quite succinctly the task that His Honour saw was required of the court. His Honour said:
‘What the court is required to do is to identify, from the evidence adduced for and against the application, the legal and factual issues that arise in the proceedings. Once those issues are clearly identified, the court should then examine the terms of each subpoena in relation to the issue of apparent relevance. In the nature of such an application the factual, including medical issues, may later change complexion or validity, according to the evidence at a final hearing. Be that as it may, it is necessary on an application to set aside a subpoena, to take the issues as they presently emerge in the evidence.’
As I indicated to Counsel yesterday, I would ordinarily regard a decision of a judge of the Supreme Court of New South Wales, or indeed of any State, as, whilst not binding, persuasive if it is on point. In my view, His Honour’s decision is on point. It does appear to me that the subpoenas to the police have been drafted very widely and could easily draw in matters that are of no relevance and would not be admitted at a hearing.
That is a matter that can be dealt with at the time. However, if it is the case that material produced on these subpoenas has the possibility of throwing light on the issues or, to use Brereton J’s phrase:
It appears to be on the cards that they will do so.
In my view, the subpoenas should be allowed. It is, of course, quite clear that just because access has been allowed to a subpoena, it does not mean that any subpoenaed information will be admitted into evidence. Accordingly, I propose to set aside the Notices of Objection in respect to the subpoenas issued to the Commissioner of Police for the New South Wales Police Service and of the Queensland Police Service.
There was another interim application brought yesterday relating to parenting orders. I did make a direction yesterday under the provisions of section 11F of the Family LawAct 1975 (Cth), that the parties should attend a Child Dispute Conference with a family consultant. I understand an appointment has been made but I do not have, at this stage, information as to when that appointment would be.
I was also asked to consider the question of an interim hearing and, clearly, that needs to take place relatively soon, but, ideally after the parties have attended the Child Dispute Conference, so that the Court and the parties and their lawyers will have the benefit of the child dispute memorandum which, whilst not determinative of the proceedings, would, as these things usually do, provide some guidance.
What the Court was asked to do by Counsel for the Respondent yesterday, is to make some “pre-interim” parenting orders. Whilst this appears to be a growing trend, it is not necessarily a trend that would meet the Court’s approval. However, it was pressed on the Court yesterday that there was an informal agreement between the parties and it was alleged that the mother had, on at least one occasion, unilaterally withheld the children from spending time with their father for a period in excess of a week, contrary to the agreement.
Thus, it was submitted, that there should be some Orders to tide the parties over until an interim hearing could be heard. I asked Counsel for each party to prepare a minute setting out the orders that their clients would seek to carry them through until the interim hearing. Each Counsel did so.
The mother seeks orders that the two boys reside with her and spend time with their father on alternate weekends from Friday afternoon until Monday morning with pick up and delivery to be at school, with in every other week, Tuesday afternoon immediately after school, overnight, and return to school on the Wednesday morning and every Thursday from 5.30 to 6.30 pm so that the father could have dinner with the children. In that case, the mother would deliver the children to the father’s residence and would pick them up at the conclusion of the time. There was also sought an order that the parties only attend any extracurricular activities of the children when the children were in their care or by agreement.
The father, however, seeks orders far more wide ranging than that, in this period, until an interim hearing can take place. First, that no order should be made as to parental responsibility for the children. Second, that the children should reside with him. Third, during the time that the mother spends time with the children, that they are, at no time, to be within 50 metres of Mr R, and that the mother will not visit Mr R’s domicile when she is spending time with the children. There was also sought, an order in respect of telephone and Skype communication, and that the children should spend time with the mother on alternate weekends from after school Friday until Tuesday morning and in the alternate week, from Wednesday after school until Thursday morning for school drop off.
Counsel for the mother argued that what the father was seeking, in that it was an immediate change of residence, was more or less identical to his final orders and indeed, I have observed from the Response that those are the orders that the father is seeking on an interim basis. It is well known that it is rare for the Court to change the residence of children at an interim hearing, although it is not unknown and certainly, in my own experience, this has taken place, actually on a couple of occasions over the last month, for very good reasons, after an interim hearing. It is perhaps unusual for there to be a request to change the children’s residence on the first return date prior to an interim hearing, which is foreshadowed within weeks, prior to a Child Dispute Conference.
I did inquire as to the basis of this rather radical submission and I was referred to paragraph 65 of the father’s affidavit of 30 October, in which he expresses his deep concern about the issue of family violence and Mr R, and describes a history from Mr R’s former wife who alleged that the man has a history of physical violence and psychological abuse, and what he describes as an aggravated violence order was granted to protect the former wife and the parties’ child. It was also put to me that the parties have now sold the former matrimonial home. The mother and the children have moved out. The father has agreed to lease back the former matrimonial home for a period of time.
Even though the parties, I am now told, live about 10 minutes drive away from each other, it was put to me that there was a significant advantage in the children continuing to live in the former matrimonial home, although this time with the father, as it would not involve a change of their physical surroundings. It was put to me, rather surprisingly, that that was a consideration that far overshadowed the question of what appears to be the case of the mother having been the children’s primary care giver. I have difficulty accepting the concept that children come with the house, which appears to me to be confusing the law of real estate with family law.
But what, to my mind, is astonishing is the submission that the children’s residence should change on the basis of the evidence in the father’s affidavit. Whilst I was referred specifically to paragraph 65, I continued to read the later paragraphs down to 69. I do not recall having my attention drawn to those paragraphs by counsel for the respondent. Paragraph 68 sets out an account of what Mr R’s ex-wife is alleged to have said to the respondent. Paragraph 69 then says:
I then asked Ms M –
which is the name of the ex-wife:
…if she would be prepared to go to Court as a witness, and she said “Look, it’s okay if you want to put what I’ve told you into your affidavit, but I don’t want to be a witness. I’m afraid of Mr R and what he will do. I’m afraid he will threaten me if I go as witness or write an affidavit myself. Look into all this though, you will find out a lot more”.
In other words, what the Court is being asked to do is change the residence of the children on a first return date on the hearsay evidence of a person who has specifically declined to give evidence in these proceedings. I am unable to see the merit in that submission.
I am of a view that there is a need for there to be some orders setting out where the children are to live and when they spend time with each parent until the matter can be dealt with shortly at an interim hearing. Quite clearly, the parties are unable to agree on such things. I have considered the proposals.
In my view, the proposal by the mother appears, at least for the time being, during school term time, to provide some sort of a structure. It was put to me by counsel for the father that no order is made as to parental responsibility for the two children of the relationship on an interim basis. I asked for an explanation of this negative account of equal shared parental responsibility, as it did not appear to me to be in accord with the provisions of section 61DA of the Family Law Act. I did have recourse to that section, and particularly, subsection (3) that says:
When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate, in the circumstances, for the presumption to be applied when making that order.
I assume that the father’s proposed order, which is termed in the negative, is intended to lead to finding that would not be appropriate, in the circumstances, for the presumption of equal shared parental responsibility to be applied when making this order. My view is, as the issue has now been raised I have to rule on it. Equal shared parental responsibility, is either an off or an on thing. There is either equal shared parental responsibility or sole parental responsibility. The section does not appear to me to provide any other course.
The normal course of events would be that there should be equal shared parental responsibility, unless the Court considers it to be inappropriate. I do not have sufficient evidence for it to be considered inappropriate. My view is the children, at this stage, should continue to reside with their mother. They should spend a reasonable amount of time with their father and I make the following orders until further order.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 14 November 2014
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Procedural Fairness
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Jurisdiction
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Costs
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Discovery
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Standing
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Appeal